Book review: Writing Medico-Legal Reports in Civil Claims
By
Alec Samuels reviews the ‘impressive' textbook that he says would benefit lawyers with its ‘scholarship and practicality'
The claim is for damages for a medical mishap or a road or industrial accident. The experts will play a pivotal role and writing the report and joining in the joint report, following the joint meeting of experts may have a decisive influence upon the outcome.
The relationship between the lawyers, solicitor, barrister, and judge, with the experts will often be the key to the successful progress of the case and the correct result. Science seeks the truth, while the law does justice (page 151).
The first phrase may well be true, the second phrase may be a little more contentious.
In a full, comprehensive, authoritative, and readable book the authors cover every imaginable point that could possibly arise. The rules and practice direction and guidance are discussed. The pitfalls lying in wait for the medical expert are clearly set out. Practicality shines through as the constant theme.
The expert must be careful with the concept of causation, so beloved by the lawyers. What are the material considerations? What are the contributory factors? How should the expert approach contributory negligence? How to explain prognosis and life expectancy? How to explain the investigation and the analysis? How to avoid pronouncing on the ‘ultimate issue’, which is the exclusive prerogative of the judge? How to avoid subconscious bias?
Today there are many pressures falling upon the medical expert, and many changes are taking place – all lucidly discussed in this study. Intermediaries have become common through the medical reporting organisations and MedCo, raising new issues in the relationship between solicitors and experts, and solicitors and intermediaries. The pre-action protocols must be followed. The abuse of whiplash claims has been curbed.
What should the expert do if he changes his mind? Does this mean that he has been careless and revealed to be incompetent? Or does this mean that he is a thoughtful flexible fair-minded expert worthy of high respect? Solicitors are increasingly asking for an early screening or advisory report, thereby putting the experts at risk of the trap of a premature opinion.
Concurrent evidence, both experts giving their evidence together, may be expected to become more common, following the report of the Civil Justice Council 2016, a process calling for new skills on the part of the experts as the process is less adversarial and more ‘conversational‘, and calling for more international skills.
In an age of austerity fees and costs are sensitive matters. The government, following the Jackson report, is keen to regulate and control recoverable fees for the experts and recoverable costs in litigation. The experts are finding that they cannot give sufficient time and attention to the work, the quality is accordingly at risk as the allowed levels of fees are becoming uneconomic.
The authors know their subject and expound their subject very systematically. In this essential book they explore all situations. They give practical courses under the aegis of the Expert Witness Institute. Virtually all the reported cases are fully discussed, though Pora v The Queen [2014] UKPC 9, the proper role of the psychologist, is missing (though perhaps was available only after going to press).
The conscientious solicitor and the conscientious expert who engage in civil medical cases would be foolish not to have this impressive book to hand, and to benefit from its scholarship and practicality.
Writing Medico-Legal Reports in Civil Claims, Giles Eyre and Lyden Alexander, Professional Solutions Publications, pp 436 including index and appendices, pp 436 including index and appendices, soft covers, 2015, £69.95
Alec Samuels is a barrister and former reader at Southampton University