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MedCo CPD training programme for experts - Dr Mark Burgin

22/04/21. Dr. Mark Burgin BM BCh (oxon) MRCGP reviews some of MedCo’s CPD offerings for 2021 to 2022 and comments on the interesting and sometimes surprising conclusions.

For this article I have reviewed 5 hours of training (the requirement for the 2 years between 2019 to 2021 was 6 hours). The C-19 crisis is likely to be responsible for the online nature of the current offering but some improvements are noted. There is more practical advice that an expert can include in their work and the language used is easier to understand.

Those instructing experts might be concerned about the apparent slow progress towards the universal provision of satisfactory reports. That there are experts on the system who are known to write inadequate reports may give pause. Some PI professionals might ask why MedCo is not aiming for good reports rather than satisfactory (needs improvement).

MedCo’s admission of their failure to be transparent about the numbers of experts who have been discovered to have written inadequate reports, what checks are in place to monitor those with problems and other relevant data should be addressed. The industry needs a statement of how MedCo intends to address these deficiencies and an updated policy on continuing education to reflect the need of the industry to have safe reports.

In the meantime there are a number of senior experts who will offer MERA type audits of medical reports for a small fee. The customers for that service can be individual experts who need an audit for appraisal purposes or want to improve their skills. Solicitors ask for audits on reports that they are concerned may be unsafe and to help an expert make the changes needed to comply with CPR35. Agencies use the MERA reports to monitor the standards of their experts and comply with MedCo regulations.

Civil Law and Procedure Rules Part 1

4 hours learning module and is 21 lessons made up of series of videos and text, arguably the most useful part is Bond Solon’s suggestions as to the wording of the declaration section.

“I confirm that I am aware of the requirements of Part 35 and Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims 2014”.

“I understand my duty as an expert witness is to the court. I have complied with that duty and will continue to comply with it. This report includes all matters relevant to the issues on which my expert evidence is given. I have given details in this report of any matters which might affect the validity of this report. I have addressed this report to the court. I further understand that my duty to the court overrides any obligation to the party from whom I receive instructions.”

“I confirm that I have no conflict of interest of any kind, other than any which I have already set out in this report. I do not consider that any interest which I have disclosed affects my suitability to give expert evidence on any issue on which I have given evidence and I will advise the party by whom I am instructed if, between the date of this report and the trial, there is any change in circumstances which affects this statement”.

There is extensive quoting and explaining of CPR35, PD35 and the Guidance but there are some useful cases. There are some useful pointers such as that proportionality is to the length of the expert’s report and issues in the case. The Civil Procedure Rules Committee (“CPRC”) writes CPR35, Master of the Rolls writes the PD and the Guidance was issued by Civil Justice Council. It is unclear how many experts sit on these committees.

Clarifications from Bond Solon that are helpful are below.

Paragraph 65 of the Guidance makes it clear that nothing must be allowed to distort the expert’s true opinion. It is legitimate for the lawyers to suggest amendments to the form of the report, and to ensure “accuracy, clarity, internal consistency, completeness and relevance”.

There is a duty imposed on the expert witness to inform those instructing them if their instructions are unacceptable.

Medical Report Writing – Refresher and Update

This module is made up of 12 Chapters and they estimate that the expert will spend 5 minutes per each topic and the pass mark on the knowledge check is 75%. The course requires pop ups to be enabled but can be launched manually. The learning is text based with no multimedia but has some pictures and concise. The first page states that ‘MedCo has observed that some expert reports fall below a satisfactory standard’. This rather cryptic comment deserves its own chapter. They refer to the rather outdated RTA3 (it is not addressed to the court) as the gold standard.

MedCo approves of report writing software and says linked claimants must be seen separately and each give their own description of the accident. MedCo put the responsibility for poor interpreting with the expert and does not indicate what to do if the solicitor’s instruction letter is not available. Medical records review is indicated where there is a pre-existing condition, there are inconsistencies, excessive time off work, amendments are requested or ‘non-organic’ symptoms. The expert must look for pre-existing problems and record them.

Claimants should bring photo ID but should still be seen if they have forgotten to bring the ID. MedCo does not indicate how this failure should be remediated. The history of the accident should clearly differentiate between low, moderate and high force accidents. The definition for delayed symptoms is ‘a few days’. Relevant negatives such as no attendance should be included. It is not enough to name the employment so how the injuries effected different tasks should be described. Any work inconsistencies should be explained, and the expert cannot simply rely upon a GP sick note.

Past medical history should include relevant negatives such as no history of neck pain, back pain and psychological symptoms. Previous RTAs should include approximate dates, injuries and recovery but does not need to include their force. Examination should include observation and range of movement, palpation is not mandatory and special tests only when relevant. Inconsistencies must be addressed and should be dealt with in the report not with the claimant. Give attribution in concertina accidents. There should be consistency between psychological injuries and ‘how bad’. Neck prognoses more than 6 months are considered long and may be investigated.

Mitigation should be considered formally such as would treatment have been effective. It is okay to leave the number of sessions of physio to the physio but the compensator may challenge them. Do not offer more than 6 sessions of physio unless you have good reasons. Amendments are only allowed if they make no difference to the damages. The report can be amended to eliminate an inconsistency, no examples are given but MedCo does not seem to mind if this amendment would potentially mislead the court about an inconsistency having been present. MedCo encourages experts to change the prognoses based upon as little as a witness statement rather than re-examination.

Conclusions

The production values in these two modules are moderate and there has been significant effort to distil out the messages to make them clearer. There is a nice mixture of teaching methods including fill in the gaps, flip the card to see the answer and a layered web design that is pleasing to look at. The materials are well written but are still a little too esoteric and could be improved by more expert’s involvement next time.

The advice does not clearly ban experts from following the mistakes in cases 1 and 2 below where clear guidance should be possible. If experts cannot avoid being found in contempt by following the rules this would be concerning. There is some practical advice clarifying issues such as past medical history sections and what is a reasonable prognosis but the reasoning given for these statements is vague at times. The advice to amend a prognosis where the claimant has recovered after the prognosis is an invitation for solicitors to game the system.

It could be argued that giving real life examples of ethical issues or asking experts to consider ranges of opinion might have greater educational value than restating the law however clear the description. Most experts will have many examples of ethical issues where they were asked to do something that they felt uncomfortable which could make the law real. Many experts rarely if ever use the range of opinion and need practical help to become familiar with the task.

Without figures on the performance of experts it is unclear whether the CPD system is fit for purpose. MedCo have indicated that some expert reports fall below a satisfactory standard. While it is not known what steps were taken it is likely that at some of these unsafe reports were used in PI cases. Given that the supply of experts in PI remains buoyant as evidenced by fees that have fallen in real terms since 2010 a more robust system would assist unrepresented claimants.

Cases referred to in the teaching materials.

1. Parviz v Ageas (2016) – the too long prognosis case, expert paid an estimated £100k

2. LV= v Dr Asef Zafar – the amended prognosis case, the expert was found in contempt of court for making a false statement and was erased from the GMC.

3. Lawton LJ, R v Turner [1975] QB 834 – Judges can deal with common sense things without experts.

4. Kennedy and Cordia 2016 - Judges rely on evidence and reasoning (not opinions).

5. Gardiner & Theobald v Jackson (VO) [2018] UKUT 253 (LC). Judges will hold you to what you include and sign in your report.

6. Cresswell J, The Ikarian Reefer [1993] 2 Lloyds Rep 68, 81 – the guiding rules of being an expert. Transparency, independence, expert,

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