Your statement of truth really, really matters!

Not many court experts, signing the statement of truth at the end of their reports, are thinking about the clang of the prison gates.  The recent decision in Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392 is a reminder that they should.

The medical expert revised a prognosis in his medical report by adopting his instructing solicitor’s suggestion, and without re-examining the client or exercising any professional judgment.  There was no clinical justification for the amendment.  It was not perhaps surprising that the judge had held that the expert was reckless as to the truth of the revision and as to whether that would mislead the court, and for that contempt of court passed a sentence of 6 months imprisonment but suspended it.

The Court of Appeal was asked to find the sentence unduly lenient.  It did.

It was emphasised that making a false statement verified by a statement of truth is a serious offence.  Doing so deliberately or recklessly would usually result in committal to prison, and the offence remained serious even if there was no direct financial motive on the part of the expert for the false statement.  In the case of an expert witness, it made little difference whether the false statement was made deliberately or recklessly.

The maximum sentence for contempt is 2 years’ imprisonment.  A sentence “well in excess of 12 months” was the starting point.  Early admission and co-operation, genuine remorse and previous unblemished professional record were all relevant, but breach of the court’s trust by a professional witness could be expected to result in severe sanctions.  That experts in this position will have brought ruin upon themselves was not a reason not to impose a significant custodial sentence.

The Court of Appeal indicated immediate custodial sentence would be the norm, and there would have to be powerful factors to justify suspending the sentence.

The expert in this case was not re-sentenced as the guidelines now available by this judgment were not available when he was sentenced.  However it was made clear that now an appropriate sentence would be an immediate custodial sentence significantly longer than six months.

Conclusion

An expert must take the statement of truth required at the conclusion of an expert report for any court or tribunal extremely serious.  Although rarely read, as it is pasted into a report or appears in the template, it does bear reading.  To recklessly or deliberately misstate matters in the report in breach of that statement of truth is likely to result in an immediate custodial sentence, as well as terminal consequences for the expert’s professional status.

Similar weight should also be given to the sign-off of a joint statement following a joint discussion between experts.  In civil claims this requires a brief restatement that the experts recognise their duties to the court and that they have not been instructed to avoid reaching agreement on any matter within their competence. An intentional or reckless false statement is likely to have similar consequences.

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

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

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.