PI Brief Update

Cross Examining Claimant's Past Medical History - Dr Mark Burgin

04/01/22. Dr. Mark Burgin BM BCh (oxon) MRCGP discusses whether medical experts are best placed to cross examine claimants about their memory of the past medical history.

Inconsistencies between the claimant’s memory of the past medical history and that found on review of the medical records is common.

Sometimes it occurs because the wrong patient’s records have been included by the GP and other times forgotten by the claimant.

Claimants typically give detail in proportion with the expert’s questioning so that they may say ‘no’ to previous RTAs until the expert says ‘ever?’.

Patient’s explanation these omissions are material to the court and if an expert presents evidence from the medical records they must record the claimant’s responses.

Cross examination

Claimants rarely respond to being told that the history they have given is inaccurate with gratitude that the expert has reminded them.

Denial, anger, bargaining or even tears are more common responses but few experts will record these responses in their reports.

The interaction goes from the expert listening and recording the claimant’s responses to what feels more like a cross examination to the claimant.

The claimant will often change their story several times trying to find words that are acceptable to the expert.

More detailed history

It is true that this approach will often lead to a more detailed history and may provide details about previous problems that are not available in the records.

The claimant will often take the past medical history section more seriously if they can see that the expert is taking more of an interest in that area.

Experts could improve the past medical history section without review of the medical records and this is sufficient for most cases.

Reviewing the medical records after the examination and then discussing any inconsistencies at re-examination seems a better solution.

Complex tasks

Managing the claimant’s emotional responses to an examination can be difficult where the claimant has pre-existing or accident related psychological problems.

Asking an expert to present information from the medical records that is inconsistent with the history can take the claimant to their limits.

Experts will struggle to manage these tasks and record the explanations given by the claimant, their responses.

There would need to be training to ensure that all experts were capable of performing this task in addition to the other tasks in an acceptable way.

Conclusions

The advantages of an expert reading the claimant’s records prior to the examination may be less than the disadvantages of giving the expert a more complex task.

Many experts may have the required skills and have the confidence to record the claimant’s responses to being presented with evidence from their medical records.

Given the lack of any evidence to any advantage this approach and potential risks to claimants, experts who are unhappy should not be pressured.

Keeping the task of a medical expert simple and within the limits of their expertise is likely to lead to better results.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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