Writing Medico-Legal Reports in Civil Claims – an Essential Guide
The Neuropsychologist - August 2016
A brief primer of medico-legal literature and a review of Writing Medico-Legal Reports in Civil Claims: An Essential Guide (2nd Edition) by Eyre and Alexander (2015)
Medico-legal training is not a core part of clinical psychology training and indeed the the clinical approach is very different to the medico-legal approach. Whereas the former is supportive of the patient, deals with clinical issues, and emphasises positive or potentially positive outcomes, the latter deals with med-ico-legal issues, is an independent assessment of the claimant, and assesses likely outcomes objectively.
For those interested in working in the medico-legal field, Eyre and Alexander's sec-ond edition of their book Writing Medico-Legal Reports in Civil Claims - an Essential Guide is a useful book. The authors highlight the The Neuropsychologist 2 -August 2016 Test and book reviews importance of experts clearly applying the civil standard of proof and appropriate legal tests to the evidence such as 'on the balance of probabilities'. The emphasis is on develop-ing an understanding of the importance of thinking in a legal manner, crucial in medi-co-legal cases where using the word 'possibly' versus 'probably' can mean the difference between someone receiving an award or not. As the authors note, in order to be awarded damages, the claimant has to show that there is more than a 50 per cent chance (i.e. on the balance of probabilities) that the accident or adverse event did cause the injuries (p.155).
There are other examples such 'accelera-tion' and 'exacerbation'. Acceleration would require that the injuries, symptoms and effects that the claimant suffered as a result of the accident are exactly the same as those that the claimant would have suffered in the absence of the accident, but are experienced earlier as a result of the accident. Exacerbation requires that the injuries, symptoms and effects that the claimant suffered as a result of the accident are of exactly the same type as those the claimant would have suffered in the absence of the accident, but are now more severe as a result of the accident. Once again these are not topics of which neuropsychologists in clin-ical practice would necessarily be aware.
The medico-legal setting is constantly changing. As Eyre and Alexander note, reforms in the civil justice system have led to an array of changes to the way litigation is con-ducted in England and Wales between 2013-2015. This relates to the 'Jackson Reforms' - further guidance on the drafting of joint statements, mental capacity and malingering. Mental capacity is both an important topic in the clinical setting and in medico-legal cases. The authors outline the Mental Capacity Act 2005 and note how the expert needs to reason through a series of questions in order to pro-vide an opinion, on the balance of probabil-ities, as to whether the claimant has capacity in relation to particular decision. The authors discuss 'dependent capacity' which refers to claimants being considered to retain capacity if, but only if, assisted and supported by family or professional helpers. The expert would need to address the need, i.e. the nature and extent, because a claim for family and/ or professional assistance might be made (p.253).
Eyre and Alexander cover the topic of clinical negligence including the legal test (the Bolam Test) which they succinctly express as 'no reasonably competent clinician would have acted (or would have failed to act) in this man-ner' (p.260). Whilst neuropsychologists would predominantly comment on condition (consequences of negligent treatment) rather than causation in medical negligence cases there may be some instances in which neuropsy-chologists would be required to comment on causation e.g. a case of negligent neuropsycho-logical treatment leading to symptoms.
From a practical writing perspective, Alexander, a communications skills consultant, writes about approaches to expert report structures, and the logical approach to writing an expert report. Addressing the standard of proof and relevant legal tests are emphasised in relation to the written report, and there are report templates in an Appendix. What marks this chapter out are the linguistic approaches such the importance of owning an opinion, and how this expression can communicate how strongly an expert feels about their opinion. It is recommended that first person singular is used i.e. 'In my opinion .. .' (p.327). This is an approach that clinicians may not typically use in a treatment setting.
Eyre and Alexander's book is unique insofar as it is the first medico-legal book in the UK to cover legal principles for experts. Their book is extremely practical and is an important contribution to medico-legal literature in the UK.
Mr Daniel Friedland
Consultant Clinical Psychologist/ Neuropsychologist
AvMA Lawyers’ Service Newsletter (March 2016)
Writing Medico-Legal Reports in Civil Claims - an essential guide
This excellent book is written by Giles Eyre, an experienced barrister and Lynden Alexander, a communication skills consultant. The book is well laid out; the topics are covered in a logical and easy to follow sequence. As you might expect, the earlier chapters look at the essential qualities of a medical expert and then move on to deal with opinion evidence both in general terms and more specifically in complex claims. There are specific chapters on reporting in clinical negligence claims as well as addressing practical concerns in the expert witnesses practice with sections on cost budgeting and maintaining the integrity of an expert witness practice.
This is book is in its second edition. It includes updates on recent case law including the Jackson Reforms and more recently the Montgomery ruling on consent and is recommended to lawyers and medical experts alike.
New medico-legal experts will find the book particularly valuable, whilst the more experienced expert will find it at the very least, a helpful point of reference and update for their legal knowledge. The book also serves as a useful reminder to lawyers that good communication and engagement lies at the heart of the lawyer/expert relationship.
The book is thorough and readable with useful templates for personal injury and clinical negligence practice. We particularly liked the “key-point summary” that appears at the end of each chapter. AvMA is pleased to recommend this well written, user friendly reference book.
Expert Witness Institute Book Review (November 2015)
Writing Medico-Legal Reports in Civil Claims
Making Sure that Opinion Evidence Meets the Legal Requirements
An appreciation by Elizabeth Taylor of Richmond Green Chambers
This is the second edition of an essential guide with its self-explanatory title – and ‘essential’ is exactly what it is. It is the handy paperback volume that most or indeed all lawyers would advise expert witnesses to read, as well as inwardly digest.
‘No medical expert witness should be without it,’ says leading EWI member James Badenoch QC writing in the Foreword. ‘The text provides a comprehensive update of the relevant law and procedure,’ he adds, ‘with a clear exposition of the many changes to the Civil Justice System over the last four years’. He goes on to note that opinion evidence must meet legal requirements so that it fulfills its proper function in the litigation process.
The fact that most evidence in courts of law now has to be presented in written form makes this useful book all the more necessary to acquire for expert witnesses. Taking a practical and plain English approach illustrated with examples throughout, it explains with commendable precision, what to do and -- perhaps more importantly -- what not to do, across a vast range of possible circumstances.
For example, in the chapter on opinion evidence, (and this is only one example) a clear distinction is drawn between ‘signs’ and ‘symptoms’. (Yes, the difference is important.) As a follow-on concrete examples are given of helpful written opinions and unhelpful written opinions.
As you would expect, the book contains any amount of new material, reflecting the changes that have taken place in the civil justice system over the last twenty-four months, so you do need this new edition in order to remain up to date. For instance, there is new guidance for the Instruction of Experts in Civil Claims 2014, the full updates of the Civil Procedure Rules 1998 and Protocols and an explanation of the effect of the Jackson Reforms. Recent case law relating to causation, acceleration of symptoms and prognosis is also of course, included, plus other important developments. You can use this guide either as an introduction to medico-legal and quantum reporting in civil claims, or as a ready and erudite reference to the more technical issues that inevitably arise.
In this challenging and often complex area where subtle differences in wording can conceivably alter the outcome of a case, this book can be depended upon to help the expert witness avoid the ambiguities and pitfalls that can occur in the presentation of written evidence. As has already been stressed, no expert witness should be without it.
The publication date is cited as at 2015.
Journal of Trauma and Orthopaedics (March 2016)
Writing Medico-Legal Reports in Civil Claims
For newly appointed orthopaedic consultants trying to break into the medico-legal marketplace there is precious little guidance on the actual process of litigation or how to write medical reports and how to present expert evidence. This book provides a good introductory background for the newly appointed consultant and is a good reference source for more experienced practitioners. It explains how the medico-legal mind-set is rather different from the conventional clinical mind-set. In clinical practice we are used to accepting what the patient tells us. In medico-legal practice we have to adopt a more forensic approach to the account given by the claimant.
The book covers the legal background to claims including an update on recent changes in the law. It contains an extensive section on the roles and duties of an expert witness which is essential reading particularly for those new to medico-legal practice. There is a clear explanation of the differences in requirements for personal injury reports versus medical negligence reports. There are guidelines on report writing, including suggested templates for both personal injury and negligence. In the section on negligence, the importance of not analysing the case with the benefit of the retrospectoscope is emphasised, which in the reviewer’s experience, is an all too common failing of some experts.
Overall I believe that his is an essential addition to the bookshelf of any orthopaedic surgeon who is carrying out medico-legal work. It will serve both as an introductory guide and a reference source.
Michael Foy, FRCS
Journal of Trauma and Orthopaedics (the Journal of the BOA)
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