Stephen Hughes, consultant in emergency medicine and senior lecturer at Anglia Ruskin University, considers whether there is a conflict between an expert’s duties as a doctor and their duty to the court.
Last month’s article addressed lessons from HHJ Cotter’s decision in Muyepa v MOD (see: Considerations in the face of dishonest claimants) and invited medical experts to consider how they would approach those issues if they found themselves in a similar situation on a personal injury or clinical negligence case in which they had been instructed to provide expert evidence.
In response to that, Stephen has addressed his mind to the practicalities of such a situation for a medico-legal expert witness presented with that problem.
What do you do if you are left with a feeling that all is not well with a claimant’s account of their symptoms after an accident on which you have been asked to provide medico-legal expert opinion?
On the rare occasion when this happens, it is often the case that there is little to find on physical examination, yet the claimant remains adamant regarding the extent of their symptoms.
Experts appreciate that the instructing solicitor requires an explanation of every symptom, with a prognosis for each. Experienced experts also know that quoting ‘textbook’ durations of symptoms almost inevitably leads to correspondence claiming symptoms persisting beyond the prognosis period. Stories of dishonest claims and unscrupulous doctors and lawyers are a major part of medico-legal folklore, and are strongly evidenced by recent cases such as those involving Dr Zafar and Dr Bux.
So, what practical advice can be given to the medico-legal expert witness to help them to successfully navigate through such complexities when instructed to report in that situation?
1. Understand that your duty to the court and your professional responsibilities are wholly compatible
There have been cases before the MPTS in which experts have been found to have colluded with dishonest claimants. This gives us a bottom line. Doctors must be honest and work within their expertise. No case is worth your family life, your career, or your future.
When doctors write reports, it is important to understand that our role is to set out and interpret the medical evidence for the benefit of the court (Civil Procedure Rules Part 35.3). We have a duty to treat the claimant with respect, so we must listen to what they say, and we must weigh what is said together with our physical examination findings and any other medical evidence available. We must never allow prejudice and preconception to get in the way of forming a fair and balanced opinion (see: How to be a case winning expert).
2. Communicate well and don’t be afraid to challenge the claimant
If you know that a bump on the back of the head does not last for six months, then challenge the claimant. Many years of experience in reporting on medico-legal matters has taught me that a surprising number of people are quite ignorant of their own bodies. The number of claimants who will tell you that the external occipital protuberance was never there before is quite remarkable. The same goes for the tibial tuberosity after leg injuries. It is important to be clear with them by telling them what you are going to write in your report and why. A good explanation works wonders.
3. Understand that dishonesty and exaggeration are not wholly the same
Fundamental dishonesty happens, but for this to be present, it must go to the root of the claim. In an ideal world, these cases ought to be screened out and should never reach the medical expert’s desk. If you are confronted with a claimant who gives an account of a fictitious accident that is wholly unsupported by the documentation, then it is firmly my view that a failure of the instructing solicitor has arisen. Write your opinion for the court fearlessly with supporting reasoning. As a matter of professional courtesy, my practice is to make every effort to speak with the instructing solicitor before submitting my report. Rarely, facts may emerge that support the claimant, but more usually, the lawyer is thankful that I have identified a fatal flaw in the case which they have overlooked.
Exaggeration should be dealt with differently, in my opinion. Many claimants feel that experts do not listen to them. To catch our attention and overcome this perceived barrier, they may use language that embellishes their account. Words such as ‘agony’, ‘extreme’ and ‘unbearable’ will be heard. There may be a complete failure to acknowledge the fact that pain generally appears and settles in phases. The faintest mark becomes an unsightly and psychologically damaging scar.
Again, I believe that clear communication is vital to address this. In these cases, it is important to help the claimant to understand the requirements of the medical expert imposed by the legal rules. As an example, I find that failure of an injury to progress is commonly a clear marker of exaggeration; my practice is to explain the usual natural history of an injury, pointing out what their account of unremitting pain may look like to the other side and the judge, and to explain the sort of questions that will likely arise. If you do that, I find that most claimants understand the issue, are better able to articulate their symptoms accurately, and you may then find some good reasons why the injury did not resolve as expected.
Some claimants will try and minimise their symptoms, demonstrating a degree of stoicism in one part of life, perhaps for fear of losing employment. In another, such as the doctor’s consulting room, they may be more forthcoming. A good understanding of this point may be important when answering Part 35 questions. This issue was recently tested in court in a matter in which a claimant made great efforts to conceal the effect of an injury to be seen to live a more normal life. In that case, the exaggeration that had occurred was found not to be fundamental dishonesty because it did not go to the root of the claim and a certain amount of it was found to be unconscious in nature because of the claimant’s attempts to alter their lifestyle.
4. Communicate well and don’t be afraid to challenge the lawyer
If you have misgivings as I have alluded to above, then my view is that is it good practice to contact the instructing solicitor. Tell them your concerns and tell them why. My experience is that when I have felt that I had to do this, the lawyer shares those concerns and is pleased to see them confirmed by the medical expert. If the lawyer is hostile, perhaps alleging bias, then find out who is supervising them and speak to them. I rarely encounter hostility from experienced solicitors who have had exposure to the full array of challenges which can arise in injury litigation, and appreciate that a call from the instructed medical expert is something to give due regard to.
3. Don’t be afraid of the agencies
If you are instructed through an agency and contact with the instructing solicitor is prevented, then insist. In fact, most agencies will have forwarded the original letter of instruction and contact details will be found. Medical reporting organisations have no business whatsoever preventing professional conversations between regulated professionals, but it is polite to notify them as this reassures them that you are not making a private arrangement to receive instructions directly.
If they threaten to cease instructing you then rejoice; they are probably not the sort of organisation that you might want to have dealings with. In fact, if you are a good expert, then they need you more than you need them. I am pleased to say that in all my many years of working alongside MAPS Medical, they have never once got in the way of such a professional conversation.
In conclusion, while these issues fortunately rarely arise, I believe that for an expert to sleep soundly at night it is essential to remember the following: you must communicate well, communicate fearlessly and, above all, remember with whom your duty lies, and it is not to the claimant, their solicitor or indeed yourself. Furthermore, there is no conflict between your duties as a doctor and your duty to the court.