Category: Medico-legal

The dangers of an over-benevolent approach to medical report writing

geyre

The recent case of Mirajuddin Molodi v (1) Cambridge Vibration Maintenance Service (2) Aviva Insurance Ltd [2018] EWHC 1288 is a useful reminder for the expert witness not to leave common sense at home when reporting on a claimant’s injuries, particularly in a minor claim, or in a claim where there is no, or little, physical evidence of injury.  The case itself was concerned with a claim alleging a minor whiplash injury.

Following a low velocity road accident in February, the claimant saw his GP the day after the accident, but did not seek any treatment thereafter and, in his claim notification form issued in mid-March, he confirmed that he had not taken any time off work or sought any medical treatment as a result of the accident. At the end of March he was examined by a doctor instructed by his solicitors. The resulting medical report indicated that he had an ongoing whiplash injury; that he had had to take time off work in consequence; and that he had been involved in only one previous accident.

In Molodi the judge emphasised that judges had to approach whiplash claims with a degree of caution, if not suspicion, because the problem of fraudulent or exaggerated whiplash claims ‘was well recognised’.  A genuine claimant who had suffered injury, should of course recover damages.  In such a case involving minor injury it was said that the claimant would normally have sought medical assistance from their GP or by attending hospital; would have sought further medical assistance in the event of non-recovery; would have sought physiotherapy without being prompted by a solicitor; and would have given a relatively consistent account of their injuries, the progression of their symptoms, and the timescale of their recovery. Although 100% consistency and recall could not reasonably be expected, the courts were entitled to expect a measure of consistency.

In contrast if a claimant was shown to be demonstrably untruthful, or if their account was so hopelessly inconsistent that their evidence could not be regarded as reliable, the court should be reluctant to accept that the claim was genuine.

Experts are aware no doubt that with many minor claims, medical evidence is at the heart of the claim.  Therefore the history given to the medical expert by the claimant has to be as accurate as possible. That history includes the account of previous accidents because that goes to the question of the cause of any symptoms complained of.  If a claimant had been involved in a number of previous accidents, as in fact turned out to be the case in Molodi, then the medical expert would need to look more closely at whether the injuries were consistent with the reported circumstances of the accident.

In a case where a claimant’s account was demonstrably untruthful or so hopelessly inconsistent as to be unreliable, the court should be reluctant to accept the claim as genuine.  Here, the trial judge found that the claimant had exaggerated the seriousness of the injury to some degree but still awarded some damages to the claimant. On appeal the judge dismissed the case because the claimant’s account was so unreliable that the court could not accept that the claim was genuine.

In claims generally, but in particular in the case of minor injuries, the medical expert must take care to address the history of the index event and claimed injury, and to compare the account taken from the claimant with that available, if at all, from the records.  The medical expert must also be careful to take a full medical history of relevant past symptoms, and of past accidents, in order to be able to address the issue of causation of symptoms.  It is not for the expert normally to express an opinion as to whether the claimant’s account is genuine or not, but it is for the expert to indicate any potential inconsistencies between the account given by the claimant and the available records, or between what the expert is able to give as the expected course of symptoms and their impact, and the course complained of by the claimant.

An absence of medical appointments and an absence of a request for treatment, is not necessarily proof of fraud, for there may be a number of reasonable explanations, but is something which calls for an explanation from the claimant, and for comment by the medical expert;  similarly inconsistency between the claimant’s account and the medical history as provided by medical records.

The appeal judge in Molodi criticised the trial judge for taking ‘a far too benevolent approach’ to the claimant’s evidence which was demonstrably inconsistent, unreliable and untruthful.  For similar reasons the medical expert should ensure that the report is not just a reiteration of the claimant’s account but provides a balanced account which, while leaving the judge to decide, on all the evidence, whether the claimant was untruthful, indicates those matters which the expert’s expertise calls him or her to regard as inconsistent, unlikely or unusual.

Important lessons for the expert witness from a recent case concerning bowel surgery

geyre

The recent case of Saunders v Central Manchester University Hospitals NHS Foundation was a claim for alleged clinical negligence resulting in ischaemic necrosis of the large bowel during surgery for reversal of an ileostomy. The issue was whether the damage to the blood supply to the bowel was the result of surgery or a naturally occurring blood clot.  Neither a spontaneous thrombotic event nor damage by excessive traction or torsion to the superior mesenteric artery during surgery had been described in the medical literature.

So far as the evidence of the two expert witnesses was concerned, the judge described one as ‘robust but at times [he] appeared unwilling to reflect on alternative viewpoints’, and the other as ‘more reflective but [he] was sometimes a little vague’.  The judge went on: ‘Neither approach was particularly unusual.  Each had its advantages and disadvantages.’ (para 33)

The joint statement was significantly criticised (paras 34 and 35).  It is worth recalling the purpose of the joint statement –

‘…following a discussion between the experts they must prepare a statement for the court setting out those issues on which –

(a) they agree; and

(b) they disagree, with a summary of their reasons for disagreeing.’ (CPR 35.12(3))

In this case the joint statement ran to 60 pages and failed ‘to agree and narrow issues’ (PD35 9.2) but, the judge found, ‘served only to confuse rather than assist’.  The problem was compounded by their being 2 agendas, as the parties’ lawyers had been unable to agree one consolidated agenda.  The judge pointed out:

‘The joint statement is an important document.  It ought to be possible to read it and to understand the key issues and each expert’s position on those issues … Frankly, the approach to the joint statement in this case achieved nothing of value.’

The case failed because the claimant’s expert had not, to the judge’s satisfaction, offered a clear explanation of the likely mechanism of surgical injury, although he offered a number of possibilities.  His evidence was ‘somewhat vague and shifting.  He admitted he was starting from the position that something must have happened.  He offered various possible explanations, but it was clear he found the mechanism difficult to explain.  He settled on the likely cause being excessive traction … he still found it very difficult to say what [the surgeon] was likely to have done wrong’ (para 81).  There were factors pointing ‘both ways’ so that the judge concluded that she ‘was not able to conclusively exclude the possibility of either of these rare events by reference to the expert evidence alone.’  However the surgeon’s evidence was accepted that nothing unusual happened in the operation and that this was an entirely straightforward procedure.  Therefore the judge was not satisfied on the balance of probabilities that the injury resulted from surgical damage, and the claim failed.

A further problem for the claimant was that his expert suggested that the damage may have occurred because the claimant’s anatomy was such that it was particularly easy for damage to be done. That being so then the question would arise as to how in those circumstances causing such damage was evidence that the standard of care of the surgeon fell below that to be expected of a reasonably competent surgeon (‘Bolam’).

This case is an important reminder that:

  1. The way in which an expert gives evidence in court is important to, and will be assessed by, the judge.
  2. The joint statement should be a concise and useful document written to assist the judge in narrowing the issues and summarising the reasons for disagreement. To provide that is part of the expert’s duty to the court – ‘It is the duty of experts to help the court on matters within their expertise’ (CPR 35.3(1)) – as well as a requirement of the Rule and Practice Direction in relation to joint statements.
  3. Experts must be able to provide a clear, logical and convincing explanation of how their conclusion or opinion is reached, and therefore why it is the correct opinion. This is particularly so for the claimant’s expert because of the burden of proving the claim.
  4. In providing a conclusion or opinion, the expert must keep well in mind the appropriate legal test, in this case the Bolam test.

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