Category: Guidance

The medical expert, area of expertise and seat belts

geyre

Medico-Legal Minder has previously commented on the dangers inherent in the requirement in Form RTA3 under the RTA Protocol (in relation to low value soft tissue injury claims) that the expert express an opinion in relation to the effect of not wearing a seat belt on the claimant.[1]  Not only does this require an understanding as to the law in relation to the reduction in damages for failing to wear a seat belt[2] but it needs a very clear approach to the expert’s expertise in providing such opinion to ensure that any opinion given is within the expert’s area of expertise.

This issue was considered in the recent case of Wilson v Gerami.[3] In a pre-trial hearing in a claim outside the RTA Protocol in which the claimant sought to have redacted parts of the defendant’s medical expert’s report addressing this issue, the judge adjourned the issue to the trial judge to give the defendant an opportunity to obtain justification from the expert for his provision of this opinion.  The expert’s medical expertise and CV, however impressive, is unlikely to provide evidence of the expert’s expertise in expressing an opinion as to the difference in injuries had a seat belt been worn in the particular circumstances of the accident, and if an opinion was to be expressed on this issue, the expertise justifying expressing such an opinion has to be provided.  An expert must never stray outside her area of expertise.[4]  As the Practice Direction to Part 35 of the Civil Procedure Rules states (para 2.2)

‘Experts should assist the court by providing objective, unbiased opinions on matters within their expertise …’

The judge also conceded that the boundary between the areas of expertise of a medical expert and an accident reconstruction expert might not easily be drawn.  In this case the parties had permission to obtain expert evidence from both fields but the defendant had chosen to obtain it only from the medical expert.

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[1] See Section 7.6 Writing Medico Legal Reports in Civil Claims – an essential guide (Eyre & Lynden)

[2] Froom v Butcher [1976] QB 286

[3] Lawtel AC9101525 (3/5/17)

[4] See Section 4.2.2  Writing Medico Legal Reports in Civil Claims – an essential guide (Eyre & Lynden)

Expert reports – too long, too loose

geyre

A timely reminder as to how expert reports should be written was given by Turner J in Harman v East Kent Hospitals NHS Trust [2015] EWHC 1662.  Expressing the frustration of many lawyers and judges faced with overlong and poorly constructed  expert reports he complained about ‘the regrettable tendency for experts to produce reports which are simply far too long’.  Many expert reports contain too much history and too much factual narrative.  Not only that, report writers show inadequate attention to analysis and opinion.  After all, it is the reasoning that is important in assessing the strength of the opinion.  Reasoning and opinion should not be lost amongst the re-telling of facts and an expansive history.

Experts are paid to be, and are expected to be, ‘succinct, focussed and analytical’ in their reports, and must start writing such reports if they are truly going to assist the court – and the parties – on matters within their expertise.

There is a skill in reducing the length of an expert report, in knowing what to include and what to exclude, and how to present the reasoning and opinion, but once learnt, the time for production of a report will be much reduced (as well as the time spent reading it) and the work of the expert will be much more appreciated.  The court and the instructing lawyer should demand nothing less.

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