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.

Relying on the burden of proof to dismiss a complicated claim

geyre

In Barnett v Medway NHS Foundation Trust [2017] EWCA Civ 235 the Court of Appeal considered an appeal against the trial judge’s dismissal of a clinical negligence claim on the basis that the claimant had failed to prove the claim on the balance of probabilities.  The judge did not therefore make express findings as to which experts’ evidence carried greater weight.

It is rarely that it is considered appropriate for a claim to be resolved on this basis.  In Stephens v Cannon [2005] EWCA Civ 222 it was said:

“A court which resorts to the burden of proof must ensure that others can discern that it has striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so. The parties must be able to discern the court’s endeavour and to understand its reasons in order to be able to perceive why they have won and lost. An appellate court must also be able to do so because otherwise it will not be able to accept that the court below was in the exceptional situation [my emphasis] of being entitled to resort to the burden of proof.”

In Verlander v Devon Waste Management [2007] EWCA Civ 835 the Court of Appeal stated that:

“First, a judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence. Secondly, the Court of Appeal should only intervene where the nature of the case and/or the judge’s reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort.…”

In Verlander the Court of Appeal emphasised that the use of the word “exceptional” in Stephens meant no more than that resorting to the balance of probabilities is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case.

“The burden of proof remains part of our law and practice – and a respectable and useful part at that — where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.”

In Barnett the claimant suffered from a rare congenital condition, hypophosphatasia, resulting in deficient bone mineralisation and a tendency to stress fractures.  He was admitted to hospital with acute pain at the back of his thigh.  He was given antibiotics, and was discharged home after 2 weeks in hospital.  He was readmitted as an emergency just over a month later with an abscess in his spine at L5/S1 and infarction of the lower thoracic spinal cord, resulting in paraplegia at T7.

The issues at trial revolved around what blood cultures, if taken prior to the administering of antibiotics during his first admission to hospital, would have revealed, and whether that would have resulted in more effective treatment of the infection.  The defendant argued that it was likely that even if cultures were obtained no infection would have been detected at that time.  The claimant was markedly vulnerable to infection and was on a combination of drugs which would probably have diminished the effectiveness of his immune system.

The 2 experts called had clearly found answering the questions very difficult.  As the Court of Appeal summarised:  “Not only was the medicine particularly difficult, but the evidence of the 2 microbiology experts was expressed in difficult and shifting terms … both experts shifted position.  The evidence of both experts was somewhat rebarbative … Taken as a whole [the claimant’s expert’s] evidence fell short of establishing probability.”

The trial judge was therefore entitled, on the particular facts of this case and given the state of the expert evidence at trial, to conclude that the claimant had failed to discharge the burden of proof, and therefore without concluding that either expert was probably right or probably wrong.  The judge was however criticised for the brevity of his judgment in justifying this approach.

Joint discussion

An additional point of note, and remarked upon with some surprise by the Court of Appeal, was that at the joint discussion the microbiologists had not been asked to consider whether cultures taken following the initial admission to hospital would have revealed infection, although this was a very important issue and was considered at trial in the oral evidence of the experts.  Primary responsibility for preparation of an agenda for a joint discussion lies with the lawyers.  Experts often comment that an agenda is of little assistance, but here is an example of a case where one of the issues which was of considerable importance for the claim was omitted by the lawyers and was not therefore discussed prior to the trial.

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