PI Brief Update

How Litigants in Person find Medical Experts 2018 - Dr Mark Burgin

25/07/18. Dr Mark Burgin BM BCh (oxon) MRCGP calls for more appropriate information for Litigants in Person to improve access to justice.

Steps in a Personal Injury Case

• Find the name and address of the defendant.

• Read the bar council’s A Guide to Representing Yourself in Court.

• McKenzie friend to help with paperwork www.mckenziefriends.directory.

• Get full medical records from the GP quoting GDPR.

• Look on www.expertwitness.co.uk for an expert.

• Ask a GP Expert if they will accept instructions.

• Go to examination prepared and answer questions fully and honestly.

• Read the expert’s report and send comments once.

• May an appointment for Free or fixed fee solicitor advice on quantum.

• Complete Money Claim Online (MCOL)

• Serve documents with the court and defendant.

Introduction

Most medical experts will not accept claims from Litigants in Person (LiP) so most claimants will struggle to find an expert to consider their claim. (Bond solon annual expert witness survey report 2017.)

They may even issue their claim without the necessary medical evidence so that the court has to read through the bundles of often irrelevant paperwork to give directions.

The paperwork is often annotated making it unacceptable as evidence and any medical records will often be out of date or incomplete.

This situation causes the legal profession two problems, first any lawyer involved (for instance for a defendant) must do the claimant’s solicitor’s job and second the LiP can cause reputational damage.

The advice N1A (Notes for claimant on completing a claim form) under the Personal injuries section does not state that the claimant needs medical evidence.

The advice N1A mentions litigation friend but does not mention the useful and skilled McKenzie friend www.mckenziefriends.directory who could ensure that the forms are completed correctly.

Internet searches

If a LiP searches for medical expert using an internet search engine they will have to work through a number of pages of results to try to find an expert who will take their instructions.

The types of results include personal experience of being a LiP by a lawyer, my article on McKenzie friends and news articles telling them that medical experts do not want to do this type of work.

There are interesting articles about how the Justice minister is in favour of LiPs and how much money experts expect earn from expert work which gives a false impression of the costs.

Claimants are often surprised that the current limit on a first medical report in personal injury is only £180 plus VAT.

There are solicitor’s articles explaining that LiP do not get any special treatment but if not helped out by pro bono assistance they may lose their case and will be punished if they make a mistake.

There are some gems such as the government of Bermuda’s guide and ‘How to Make Sure Your Expert Witness Isn't a Lemon’ but no answer to the question of how to find an expert.

The barrister’s advice

The Bar council’s “A Guide to Representing Yourself in Court” appears on page three of the results and gives very detailed advice as to how to work within the system.

The guide comments on expert evidence and suggests that the claimant should wait until the court is involved and gives directions before obtaining any expert evidence.

The guide also states that it is standard practice in personal injury claims to obtain evidence from an expert to help the court in deciding the outcome of a claim.

They recommend at page 31 of 72 the website www.expertwitness.co.uk for obtaining a medical expert but do not warn that few experts are prepared to take on LiP work.

In the future the RTA portal may allow direct expert instructions (Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013.)

The GP medical expert witness

For a LiP conducting a personal injury case the correct expert is always the generalist as they can provide a cheap screening report with recommendations or the substantive report.

The GP expert can ensure that any further expert witness reports are to address material issues and that the specialist experts know why they are being instructed.

The GP expert should have at least 5 years experience of personal injury claims as they may need to provide advice as to the correct procedures in instructing experts.

The expert should remind the LiP of the relevant rules (not to write on reports, they can only ask for facts to be changed and the expert’s duty is to the court not them).

There is a greater risk of an inexperienced expert being drawn into believing the claimant where there are multiple contacts with the claimant so the expert should document these in the report.

The Medical Expert Report

Medical expert reports for LiP should be based upon a questionnaire, a face to face examination and review of the GP medical records to document the process.

The GDPR means that since 25 May 2018 medical records can be obtained without cost making review in all cases proportionate.

Medical records review also assists the medical expert faced with a request to amend a factual issue when the records are inconsistent with that amendment.

Reducing the risk that the medical expert will have to do follow up work (likely unpaid) and deal with any inconsistencies can save both time and money as well as less stress for the LiP.

Where the LiP is concerned about the quality of their report they can ask a senior medical expert such as myself to perform an affordable audit of the report.

Conclusions

Political pressures, cost pressures and legal changes are increasing the likelihood that a lawyer will face a LiP in the near future.

It is important to the legal profession that these cases are dealt with using justice, so advice online must become simpler and more accessible.

Getting a medical expert report early in the process means that the claimant’s case is clearer and the case can proceed more efficiently and fairly.

Having an agreed ‘one size fits all’ approach to personal injury will ensure that advice to LiPs are consistent and simple making compliance more likely.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register and audits medical expert reports.
Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Image ©iStockphoto.com/liveostockimages