Category: Medico-legal

Concerns continue as to the quality of medical reports (SRA Report October 2016)

geyre

It is a sad fact that medical reports are still not of the quality demanded by lawyers, as revealed in a recent survey.

“There remain concerns [amongst solicitors] over the quality of medical reporting and even with the introduction of the MedCo system which was designed to remove conflicts of interest and improve the quality of medical reports. Only a quarter of those surveyed felt that MedCo had achieved its objective of independence. Whilst the principles behind MedCo were generally supported, the implementation was criticised. There were also criticisms over the depth of scrutiny required to remove poor quality medical reports (some felt the information contained in the reports was overly standardised or superficial).” – An Assessment of the Market for Personal Injury – A final report for the Solicitors Regulation Authority (October 2016)

Perhaps given the absence of any formal accreditation scheme for experts, or any required standards, that is not a surprising finding.  However the continuing disappointment amongst the end-users of medical reports even with MedCo reports highlights the inadequacy of the compulsory training and so-called ‘accreditation scheme’ imposed by MedCo for these low value claims.  And if that is the approach to raising the standard of medico-legal reporting in the ‘controversial’ field of whiplash injuries, what does that tell us about any system for raising the standard of reporting more generally?

‘Accreditation’ (others would call it ‘certification’) is achieved after 30 – 40 hours online, studying 9 modules and answering online questions (and paying the fee).  Of those modules, how many address the issues relevant to preparing a quality medico-legal report, and how is that approached? No lawyer can answer that question because information as to the detailed content of the training or as to the standards intended to be achieved by the training is not available, at least not for those not paying the fee and taking the training (such as end-users).  However one can only assume that somewhere in module 8 (law and procedure) there is some hint as to how to construct an effective report (the other 8 modules appear to address soft tissue injuries and methods of clinical assessment).

Any attempt to ascertain from MedCo or the MoJ what the course content and objectives are, and what the required accreditation standards are, is met with silence.  So there is no public information as to:

  • the defined standards which the course was prepared against
  • the defined standards which those following the training are required to demonstrate in order to pass
  • any defined course content.

It is hard not to conclude that there are no such standards.  And that no or little attempt is made to explain how to provide what a lawyer and the court need from a medico-legal report (‘the medico-legal mind‘) and to give appropriate training to that end (something which some of us have been providing for many years).

If anyone does obtain answers from MedCo to any of these issues, please do share them with those who are paying for the reports and relying on them for the conduct of litigation!  And with me!

A last thought:  much of the course is in relation to imparting learning on ‘whiplash associated disorder’.  ‘Accredited’ experts are expected to have learnt what they are taught and presumably to have applied it in expressing their opinions.  Should not the lawyers and injured claimants be entitled to know what it is their experts (whose opinions they are paying for) are being taught as fact, and therefore on what their opinions are based?

[Who or what is medico-legal minder?  Terms and conditions apply]

Bolam and identification of the “responsible body of medical men”

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The Bolam test in clinical negligence is simply stated.

‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…’

Often a practice is being measured against a standard common to a large body of similar practitioners, or to a smaller body of specialists, and no real difficulty arises in identifying that standard.  But what if this is a new and developing area of medicine?  How then is the responsible body identified, and indeed is there one?

Some guidance to the court’s approach in such cases was given in Eckersley v Binnie [1988] 18 Con LR 1. There is was said that a doctor should:

  • Should not lag behind other ordinary assiduous and intelligent members of the profession in knowledge of new advances, discoveries and developments in his field
  • Should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill
  • Should be alert to the hazards and risks of any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert
  • Should bring to any professional task no less expertise, skill and care than other ordinarily competent members of his profession would bring

On the other hand a doctor need not “be a paragon combining the qualities of polymath and prophet”.

In Vernon v Bloomsbury Health Authority (1986) [1995] 6 Med LR 297 the dosage of a drug used on a patient exceeded the manufacturers guidelines, but was nonetheless found to be a proper one; the court found that the guidelines erred on the side of caution, and the use of a higher dosage in the circumstances of this patient was not negligent. Similarly although the duration of treatment was outside the same guidelines, the court accepted that it could not be contended that no reasonably competent cardiologist or microbiologist would have contemplated adopting this regime in the particular circumstances.  The doctors were acting in the best interests of the patient in so continuing therapy and had conformed with standards set by a considerable body of responsible and distinguished medical opinion, as represented by the defendant’s own expert witnesses.

In Sims v Sims [2002] EWHC 2734  the court found that there was a responsible body of professional opinion that supported an entirely innovative form of treatment (for Creutzfeld Jacob disease) hitherto untried and unvalidated, and that concluding that a responsible body supported such treatment was ‘consistent with the philosophy that underpins the Bolam test’.

As so often the Common Law (judge evolved law) is sufficiently flexible to do justice in appropriate situations, so long as a coherent, reasoned opinion is presented in reliable expert evidence from a suitably qualified expert to support a view.

[Who or what is medico-legal minder?  Terms and conditions apply]