THE DUTIES OF THE MEDICAL EXPERT AND LIMITATIONS OF THE MEDICAL EVIDENCE

Patrick A. Nee FRCS, FRCP, FCEM

Consultant in Emergency Medicine

Whiston Hospital, Merseyside

Medical practitioners are frequently called upon to give an opinion on causation and prognosis in personal injury cases. With the increasing use by insurers of the so-called ‘low speed defense’, cases may be assigned to the multi-track with the inevitable consequence that the author of the report, the Medical Expert, is summoned to Court to give his evidence and be cross-examined. Many physicians and surgeons feel inadequately prepared for the role and find themselves inadvertently adopting a position of advocate for the party who instructed them, rather than maintaining their impartiality and confining their input to advising the Court on clinical matters.

The medical expert is obliged to utilize the skills he deploys in his regular clinical practice. He must provide adequate time and an appropriate environment for interview and examination of the claimant.   This is the Clinical Method, representing the history, examination and review of medical records, upon which his opinion on causation and prognosis of symptoms must be predicated. There is no other basis upon which the expert may assist the Court and he must not be distracted by witness statements, tachograph data or engineering evidence, which will be tested in any event by cross examination of other experts.

The clinical method depends upon a degree of trust between the doctor and the claimant. As with any clinical encounter, in the emergency department or outpatient clinic, there is no basis for an expert to disbelieve a claimant. If a meaningful examination is to take place then the claimant must have confidence in the independence of the doctor. It is for the Court to decide if a claimant is being truthful. The doctor will be aware that a minority of claimants will be inclined to exaggerate the effects of an accident, motivated by personal gain. However, there is evidence that the settling of a claim does not influence the severity or duration of accident-related symptoms.

The medical expert cannot say whether an incident actually occurred or whether the claimant was actually involved. He is reliant upon the claimant’s account of the incident and he is not in a position to challenge that account, irrespective of the source of his instruction. He can, however, advise on whether the reported injuries are consistent with the incident as reported by the claimant. This depends upon the doctor’s regular exposure to similarly injured persons out-with the medico-legal situation. If one never treats soft tissue strains in vehicle occupants then one cannot offer an authoritative opinion on causation in such cases.

Matters discussed with the claimant must include the circumstances of the incident, the evolution and progress of symptoms, their nature and impact and response to treatment. Other matters of interest to the Court may include any past history that might bear upon the claimant’s symptoms and pre-existing conditions that may have been adversely affected by the incident

The clinical examination may be relevant even after the claimant’s symptoms have abated. An experienced doctor is able to determine the claimant’s general physical and mental health, pre-existing conditions rendering the claimant vulnerable to injury, his attitude towards injury and illness and their impact on everyday activities. For patients with continuing symptoms the doctor will look for signs suggesting consistency with the index event, as well as alternative causes. Inappropriate signs are sometimes seen in patients reporting low back pain. Such signs indicate that a patient is seeking to influence the outcome of the examination. There are no equivalent signs in respect of neck or upper back pain.

The expert may offer an opinion on the requirement for further investigations or treatment of on-going symptoms and the likelihood of future deterioration or complications.

Finally, the expert may assist the Court with the interpretation of the published literature. One’s duties as a doctor, both in respect of General Medical Council standards and the Civil Proceedings Regulations, require that the range of opinion be properly presented. It is essential to resist the temptation to cite only those papers that support the position of those responsible for the instruction. The expert must advise the Court on the merits and demerits of the papers cited. In most cases the literature will not provide a definitive answer on causation. Many factors influence injury risk and there have been no studies of sufficient quality to account for the various human and crash-related elements.

In summary, doctors called upon to give expert advice on matters of personal injury should remember that their duty is to the Court and not those who instructed them. The expert must not be implacable; the Court will accept that in any formulation there will be areas of uncertainty. It is instructive to read the statement of truth, included in all medical reports, and ensure that it is complied with before submitting the document. The expert should remember that the contents of a report may be tested in Court by cross examination and if the expert is shown to be unprepared, biased or unprofessional he may be subject to adverse criticism by the judge. As unpleasant an experience as one is likely to encounter in a professional career.