Reporting the incident

Writing a report in a personal injury case is a specialised form of the clinician's work. It represents a very different process to the one which he or she carries out in their day-to-day clinical practice.

There are a number of similarities with normal practice, namely the taking of a detailed history, clinical examination and ordering or interpretation of specialised investigations such as x-rays or scans. However, the medicolegal assessment requires a more forensic approach particularly when assessing the claimant's medical records. It is important to look in detail at the past medical history together with the timing of onset of any relevant symptoms and their relationship to the alleged injury. In clinical practice we generally believe what patients tell us. In medicolegal practice, where ultimately we are providing an objective assessment for the court, we have to be more circumspect with the information provided by the claimant, and check its veracity carefully.

Working with experts

The initial difficulty that many solicitors have is in finding an appropriate expert. There are now publications such as the Directory of Expert Witnesses and organisations such as the Expert Witness Institute who can provide guidance in this respect, and the internet is a universal source of information. However, it is still a problem for solicitors in deciding who is an appropriate expert for them in a particular case. My own area of interest and specialisation is spinal surgery. This in itself is an area of confusion for the legal profession because patients with back and neck problems are referred to a variety of different medical and paramedical specialists from orthopaedic spinal surgeons, general orthopaedic surgeons, neurosurgeons, neurologists and rheumatologists through physiotherapists, osteopaths and chiropractors to name but a few.

An expert giving an opinion on, let us say, a low back injury, should have considerable experience in assessing and treating such patients in clinical practice. The expert does not need to be a surgeon, but he should have a sound understanding of the epidemiology of the underlying condition and its natural history. An ability to interpret imaging investigations (such as MRI '“ see later) is important, as is the skill to decide when expert opinion is required from a spinal or neurological radiologist. A knowledge and understanding of the current research and literature on back problems is essential.

This begs the question who can reasonably call themselves an expert in a particular field such as back pain or back injury?

An expert in the field should be someone of consultant or equivalent status who is regularly seeing and assessing patients with the type of clinical problem under consideration in their day-to-day practice, i.e. as far as a back or spinal problem is concerned, an orthopaedic surgeon, rheumatologist, neurologist or neurosurgeon.

I appreciate that in low-value claims the cost of expert reports are closely monitored and it is important that the cost of such reports is not disproportionate to the level of the claim.

Another important question is when does an expert cease to be an expert? So-called clinical expertise from a non-practising individual should be discouraged. It is difficult to quantify how long an expert will remain current after giving up clinical practice. However, anyone who has not been involved with the active clinical management of patients with the problem under consideration for over two years is probably no longer suitably qualified to be an expert. This is clearly something that needs to be addressed by expert witness organisations and professional bodies. The GMC has taken an interest in this area since the adverse publicity surrounding expert evidence in the Meadows and Southall cases.

Instructions

It is helpful to the expert if instructions are clear and concise in terms of the details of the claimant, whether the claimant needs to be contacted directly or via their solicitor (if the report is for the defence) and whether there are any time constraints. It is helpful to the expert if the instructing solicitor informs him at the time of the initial instruction if there is likely to be any significant delay in the settlement of the fee note for the report. The expert can then take an informed view whether he wants to take on the work or not. Most established experts will have their own terms and conditions containing their expectations for fee settlement. It is usually a good idea to clarify this at the outset to avoid it becoming a source of conflict as the case progresses. Experts, by definition, should be familiar with the Woolf reforms and the structure of reports since those reforms.

It should also be made clear from the outset who is responsible for obtaining relevant medical records. It is usual for the instructing solicitor or insurer (or agency '“ see later) to source the records. Many solicitors employ medical/nursing staff to sort out and paginate the records. This is probably a sound investment as there is nothing more irritating, when sitting down to prepare or dictate a report, to find an ill-sorted, over-duplicated mish-mash of medical records.

Agencies

There has been a trend over the last 10-15 years for agencies to appear on the scene, adding an extra link in the chain for the provision of medical reports. There can be advantages and disadvantages to this arrangement. Some have fallen by the wayside, usually because of poor management and cash flow issues in relation to delayed or deferred payments. I prefer dealing directly with the instructing solicitor or insurer as I believe it fosters a more efficient working relationship '“ I prefer to avoid dealing with an anonymous middle man.

The report

In a personal injury claim it is necessary for the expert to meet with the claimant in order to provide an opinion. This is in contrast to the negligence report where it is often possible for the expert to provide an opinion on liability and causation from the medical records (including relevant x-rays and scans).

In personal injury claims the issue of liability is usually '“ although not always '“ fairly straightforward. The focus of the report is usually the nature of the injury caused by the substandard act of the defendant. The current condition and the future prognosis are important considerations. The position of the claimant in the labour market and the requirement for future treatment '“ particularly surgery '“ are also very important.

An account of the injury and pertinent details of treatment should be provided by the expert. In complex cases with multiple injuries, it is important to summarise the important factors without over-complicating the report with minutiae which are not going to help the legal representatives in their overall understanding and interpretation of the case.

The report should provide a good overview of the circumstances of the injury, the treatment received, the current condition and whether or not it is likely to change significantly in the future. A clear view on causation is required (see later) particularly in claims where back pain or disc prolapse are involved.

Different experts may set out their report in various ways '“ there is no standard template. Solicitors and insurers will get used to the format provided by a particular expert and may continue to instruct him because of the ease in interpreting and using the reports provided.

There are some areas which are particularly controversial and are worth considering in more detail. These are causation, recommendations for further investigation or treatment, and the concept of advancement/acceleration of symptoms.

Causation

Often causation issues are straightforward. Mrs A was walking on the pavement and was hit by a car fracturing her tibia. There would be no dispute that the impact from the car bumper fractured the tibia. Experts may differ on the level of disability experienced by the claimant in the longer term.

However, causation issues may be less straightforward. Mr B bends over to pick up a heavy weight at work and develops acute low back pain. The back pain continues and is disabling. Mr B and his legal representative blame all his continuing symptoms on the incident at work.

Against the background of the epidemiology (i.e. incidence, prevalence and natural history) there are four important areas that are worthy of analysis:

i) the timing of onset of symptoms in

relation to the alleged injury;

ii) the magnitude of the injury;

iii) corroborating medical evidence;

iv) the past medical history.

If there is a significant injury to the back, an immediacy of onset of symptoms should be expected. One would expect symptoms to be experienced by the claimant either straight after the accident or at the very least within a few days. There would seem little to support causation when back problems develop many weeks or months after the traumatic event. The exception to this of course is if there are significant distracting factors such as other major injuries which may mask the effect of a back/spinal injury until a later date.

If there is a significant injury one would usually expect the patient to consult either the hospital or the general practitioner relatively soon afterwards. Not all people run straight to the doctor and many will assume that mild to moderately severe symptoms will run their course. This has to be factored into the overall picture. However, I believe that contemporary and corroborative medical records are important. The magnitude of the injury as described by the claimant and as recorded in the contemporaneous records is important. It is well documented that once someone has a history of back problems they are more likely to experience further episodes of similar problems. Therefore, a past medical history is important in the overall evaluation. The proximity of that past history to the injuring event is also important, i.e. the relevance and weighting of back symptoms 15 years earlier would be of less significance than back symptoms in the few weeks before the accident.

If the injury itself seems relatively trivial, if the symptoms that are complained of develop some weeks or months after the injury and if there are no corroborative medical records following the incident, a causal relationship is, in my view, very difficult to support. A strong past medical history of similar symptoms also weakens the case on causation.

My experience is that physiotherapy records are probably the most detailed, accurate and reliable records available for interpretation after the event. I think it is important to review these records if and when they are available.

Analysis of these various factors, together with a knowledge of the epidemiology of the underlying condition complained of, should enable the expert to give an informed view on causation.

Recommendations for further treatment

Controversy exists between experts on whether it is appropriate to make recommendations for further investigations and treatment. I believe that if it is clear that a particular line of treatment is likely to improve the situation, and therefore the prognosis, for the claimant then the expert should discuss this in the report. Examples include consideration of removal of metal implants (if appropriate), surgery for problems such as meniscal (cartilage) tear in the knee if it were felt that these were causative of ongoing symptoms etc.

It may be necessary for the expert to recommend further investigations such as plain x-rays to give a view on the likelihood of arthritis developing in the future. The place of MRI will be discussed later.

Advancement/acceleration

This is the area par excellence that causes debate, disagreement and heated discussion among experts '“ particularly in cases where there is back pain and/or disc prolapse. I should probably begin by clarifying and confirming that this concept has no place in clinical medicine. No clinician would say to another when Mrs C slipped on a grape in the supermarket injuring her back it probably advanced/accelerated the onset of back pain by... As clinicians we are interested in what happened to the patient, why the symptoms that they have persist, and what can be done to relieve those symptoms. We are not concerned that Mrs C might have got back problems in the future anyway because of pre-existing degenerative change and her genetic predisposition to such degenerative change.

The concept of advancement/ acceleration has been introduced to help the legal profession in quantification of damages. It is entirely artificial and speculative. It only applies to common, degenerative conditions which are frequently seen in clinical practice without obvious trauma. Back pain would be by far the commonest such complaint in the personal injury setting.

Obviously no expert with any credibility is going to argue that Mrs A's tibial fracture was brought forward by a certain number of years when she was hit by a car bumper when walking on the pavement. People do not usually sustain fractures of the tibia without significant trauma.

However, people commonly have significant low back pain with no trauma. The Woolf report decrees that where a spectrum of opinion may exist on a particular issue, it is the duty of the expert to point this out in the report. Where a claimant develops low back pain/sciatica after an incident in the work place, or after a slipping/tripping injury or other trauma, that spectrum would be: at one extreme, on the basis that most low back pain is constitutional/genetic, the incident/injury in question has had no material effect (or a very short lived effect) on the claimant. The symptoms and ongoing problem is coincidental and the injury irrelevant. At the other extreme, the expert could take the view that the injury is responsible for the onset of symptoms and that the totality of any ongoing back-related disability is accident-related on the basis that the trauma was significant, there was immediacy of symptoms, with strong corroboratory medical evidence and no past medical history.

Frequently, neither of these positions is easily sustainable and therefore the expert needs to come to some form of compromise.

What options do they have?

i) there has been a temporary period of aggravation of symptoms by the injury;

ii) there has been a period of advancement/acceleration of symptoms caused by the injury;

iii) he could attempt to attribute a percentage of the ongoing symptoms to the accident and a percentage to the patient's genetic makeup

Option iii) probably further complicates what is already held to be a somewhat indefinable and imprecise area. Therefore most experts fall back on a period of aggravation of symptoms (if there were an obvious pre-existing problem) or a period of advancement/acceleration if the pre-existing problem is not so clear.

Therefore it is important that the legal profession realise the limitations involved in this rather grey area of causation in back and spinal injuries. This article merely skims over it here to try to give a flavour of the thought processes that go through the expert's brain when trying to come to a sensible conclusion on causation.

Prognosis

Obviously the medical report should contain a clear and, as far as possible, detailed prognosis. However it may not always be possible to give such a prognosis, either because a steady state situation has not been reached or because it is possible that certain treatment interventions or further investigations will modify the prognosis.

If this is the case it should be pointed out in the conclusion and a recommendation given for review after such a situation has been achieved or after the further investigations/treatment have been carried out.

The prognosis should give a clear opinion on the claimant's position in the open labour market, position in the role that he were carrying out at the time of the accident and any potential requirements for further surgical treatment in the future.

MRI: crock of gold or poison chalice?

The place of radiological investigations in general and MRI in particular is controversial in medicolegal reporting. Obviously plain x-rays and ancillary investigations such as computerised tomography (CT) are very important in monitoring fracture healing.

From a practical perspective, MRI scans often cause obfuscation rather than clarification of the issues. If we are confronted with a claimant with ongoing back/spinal symptoms our concerns generally lie with causation, current condition and implications for treatment together with prognosis. An MRI will not usually be useful in these areas from the medicolegal perspective, except to act as a 'reassurogram' that there is no serious underlying disorder. There is such a wide spectrum of asymptomatic abnormality on MRI scans that to try to link this to a single injury or incident is usually a fruitless exercise.

MRI may have more of a place in the non-invasive assessment of knee and possibly shoulder problems. There may be a place in the further assessment of occult bony injury. However, I believe that MRI is probably over-used in the medicolegal setting and its place in the overall scheme of the individual claim should be justified by the expert (or solicitor) who requests or recommends it.

Conclusion

Most experts approach this type of work with enthusiasm and see it as a source of education as well as a source of additional income. I hope the preceding text has given solicitors some insight into the expert mind and the process that we go through in running a medicolegal practice. I hope some of the suggestions I have made and the processes that I have discussed may facilitate better relations between the legal profession and the experts they instruct.

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