Amending expert reports

Nothing is more likely to bring out understandable paranoia in experts than a request by their instructing lawyer to amend their expert report.  The rules however are simple!  The Guidance for the Instruction of Experts in Civil Claims (para 65) states:

“Experts should not be asked to amend, expand or alter any parts of reports in a manner which distorts their true opinion, but may be invited to do so to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. Although experts should generally follow the recommendations of solicitors with regard to the form of reports, they should form their own independent views on the opinions and contents of their reports and not include any suggestions that do not accord with their views.”

It follows that there is a variety of amendments which might be requested in order to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues and which would be entirely legitimate and which will not impact on the opinions expressed by the expert.  These would include:

  • Asking the expert to address a particular issue or issues which may have been missed or not clearly addressed;
  • Asking the expert to refer to or to make accurate use of a legal test, such as proof ‘on the balance of probabilities’ or identifying injury, loss or damage ‘caused by’ the breach of duty and which would not have occurred ‘but for’ the breach of duty, or addressing ‘the standard reasonably to be expected of a reasonably competent clinician in the relevant field’, and ensuring consistency within the report in applying such tests;
  • Asking the expert to provide more information within the report, or to address particular material facts, or to demonstrate the expert’s reasoning (how the opinion was reached);
  • Asking the expert to remove references to non-material facts or issues such as history which is not relevant to the opinion, or not to address issues which the expert has not been asked to consider and are not relevant to the issue on which an opinion is sought;
  • Explaining use of language and in particular technical language, or to provide (or sometimes remove) glossaries, to add diagrams, pictures, a chronology, or to add or remove or correct quotations within the report.

In relation to the form of reports, the solicitor may require compliance with the CPR, or address communication issues, such as:

  • the statement of ‘the substance of all material instructions’ (CPR 35.10(3));
  • provision of more (or less) of the expert’s qualifications (35PD 3.2(1));
  • clarification of which facts are within the expert’s knowledge and those which are not (35PD 3.2(4));
  • provision of a range of opinions (35PD 3.2(6));
  • provision of a summary of conclusions (35PD 3.1(7));
  • removing narrative details addressed in the opposing expert’s report and not disputed (Harman v East Kent Hospitals NHS Trust);
  • addressing issues raised in the opposing expert’s report (Harman v East Kent Hospitals NHS Trust);
  • following the instructions for sequential reports (para 63 Guidance for the Instruction of Experts in Civil Claims);
  • the use of appendices to simplify and shorten the body of the report.

These amendments will almost certainly not be material to the opinions expressed by the expert and therefore should not raise concern on the part of the expert.

What the expert must not do, or agree to do, is amend the report in such a way as to distort the expert’s true opinion, or compromise their independent view on the opinions and contents of the report.  And certainly they must not include matters which do not accord with their own views on the case.

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‘85% of claims in clinical negligence fail’

The MDU’s report for 2016 asserts that 85% of claims closed during the year were successfully defended – an impressive figure.  These claims will generally relate to doctors’ private work or the general work of GPs.  This compares with the NHSLA reporting for 2016/17 that 55% of claims were resolved without the payment of damages.  Of concern to the MDU, in addition to their expenses in defending those claims, was, in relation to successful claimants, understandably the amount in costs paid to successful claimant’s lawyers and the higher value of damages as a result of the reduction in the discount rate used to calculate the value of future losses.

But perhaps of concern to all those involved in advising in such claims, including the medical expert witnesses, is the apparent failure to sift out a much larger percentage of these claims before they were progressed.  It is in nobody’s interest to run a claim that fails or has to be abandoned – certainly not the claimant’s (or the claimant’s family’s) or the clinician’s, and very rarely in the interest of the lawyer who is effectively financing the claim on behalf of the claimant.

A careful, complete, proper and realistic assessment of the prospects of a claim and the evidence available in relation to it by the medical expert, with careful consideration of (and application of) the standard of proof, the Bolam test or the Montgomery test and all issues of causation of damage (‘did any breach of duty make a difference in outcome’) should mean that few claims are progressed that have to be abandoned subsequently.  And the claimant lawyer should be ensuring that the expert’s opinion stands up to scrutiny on all of these counts.

Perhaps too many experts and lawyers do not fully understand what their role is and what the law requires to be proved to bring a successful claim.

Interestingly in relation to professional conduct claims, the MDU reported that of those GMC cases that went to a panel hearing, their in-house solicitors ‘achieved a finding of no impairment for 54.5% of members, compared with the GMC’s most recent four-year average figure of 22% (2012–15)’.  Does this reflect an increase in unjustified complaints being made, an improvement in the quality of work of the in-house solicitors, a statistical blip, or what?

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