Embracing the future
Changes affecting the medical expert
1st June 2010 – Blog. Dr. Bob Goodall, Chief Medical Officer
The only certainty in the medicolegal sector is change. Both lawyers and medical experts have no choice but to embrace change and those of us with a glass half full will see opportunities rather than threats. There are two changes which will affect the medical reporting side; one overt and one rather more subtle.
I will look at the overt change first which is, of course, the changes imposed by the Ministry of Justice following the review of civil litigation by Lord Justice Jackson. I do not propose to comment on the legal processing changes imposed on the claimant and defendant but to look at the changes affecting the medical expert. You can read our published report of the MOJ Rules of Practice here.
- Dr. Bob Goodall, Medical Director, PMG
The purpose of the changes, as I see it, is to speed up the claim to settlement cycle and to impose proportionality of costs on “low value” RTA personal injury claims. These were some of the intentions of the Woolf CPR changes 1999 but have not been as effective as intended. Low value is defined as general damages less than £10,000. Compared with the changes imposed on the claimant, defendant process the impositions on the medical expert are small but it is important to understand them.
Because of proportionality of cost the bulk of instructions will be directed at General Practitioners. Where a specialist is instructed the defendant could potentially challenge the fee if it was disproportionate to the magnitude of the injury; lawyers beware.
A template has been produced by the MOJ the sections of which will be familiar to anyone undertaking medical reports. There is not a stipulation that the template should be replicated exactly but all the sections must be present and covered within the report.
Seat belt restraint has always been relevant because of contributory negligence and failure to buckle up and the “but for” principal should have been addressed as routine but the new template insists on a separate section with an opinion on modification of the injuries had the claimant been wearing a seatbelt if they were not exempt. “Impossible” I hear you say but the legal process assists by only requiring an opinion “on the balance of probability” or the civil standard of truth – in essence a best guess on the evidence available. Most experts would accept that seat belts prevent impact trauma to face, trunk and limbs but do not prevent whiplash type soft tissue sprains to the spine. Each case needs to be evaluated individually. Taxi drivers carrying a passenger are the commonest exempt group.
- “Medical records are disproportional to information obtained”
It is expected that the majority of reports will be prepared without access to the medical records. Again this is to reduce costs. The MOJ are persuaded that the huge cost of obtaining medical records is disproportional to the information obtained and effect on limiting fraud. The onus is now put upon the medical expert to determine whether medical records are required. My advice to GP’s is to prepare the report without records and only request them if the injuries are markedly disproportional to the accident. The records should not be routinely requested if there is a significant past history and a full recovery to the pre accident status is opined, but, again, if the declared symptoms and physical observation is disproportional then the records can be essential corroborative evidence to mitigate a prognosis. The liability insurers have not declared their position on this but there is the potential to change track if fraud is suspected with a demand that the notes are reviewed. We shall see.
Regarding specialist reports my view is that the records should be reviewed routinely even if it is an MOJ track due to the complexity and potential pitfalls. The expert should acknowledge in the report that the records were necessary in the investigation of the case.
It is important to know that the solicitors are no longer able to provide a witness statement to assist recovery of special damages for loss of amenity so all losses should be addressed in the report, not the financial details but the activities compromised and whether paid assistance was reasonable. Failure to cover this will result in reports being returned for amendments.
Finally the expert needs to acknowledge that a further report will be indicated if the claimant fails to recover over the predicted timescale.
Warp, and I expect, other report generating software will incorporate these changes automatically but those dictating and typing will need to adjust their templates accordingly.
Change for the better or worse? I am neutral on the changes in that for most of us the changes are insignificant. Generally though, I am in the glass half full camp in that the changes consolidate the importance of the medical report in the personal injury claim process which should maintain gainful employment for us all into the immediate future.
The creation of the 'fit note'
My second focus is on a more subtle change and one that has not yet appeared on the PI radar. It is the emergence of the “fit note”. Loss of earnings due to a personal injury form an important part of special damages recovered for the claimant. Indeed the chief reason that many claimants pursue a claim is to recover loss of earnings rather than pain and suffering. In serious trauma the future loss of earnings claim can exceed all other aspects of the claim and run into 6 or 7 figures.
I think the majority of us rarely question the GP’s opinion on certified time off work but probably have a view on non certified claimed time off work by the self employed (taxi drivers spring to mind!).
The creation of the fit note has the potential to add complication to the claimed damages. I know most GP’s in their treating practice feel inadequately trained and experienced to assess a patient and advise on what type of work he or she may be fit for, so inconsistency in certification is likely at least in the short term. I can see a defendant challenging a prolonged certified period of sick leave and asking the medical expert to give a view on whether the claimant may have been fit for sedentary work at an earlier stage.
As medical reporters we have to be prepared to get off the fence and give a pragmatic opinion. It is worth remembering that the purpose of the report is to enable a negotiated settlement between 2 adversaries so both sides (usually) are looking for a means to a reasonable settlement.
It is possible we may see an enhanced role for an occupational health expert to opine on such matters where there is a dispute over large sums – those of you qualified in such matters take note. This will be an evolving area of opinion and challenge and I welcome your comments and experience which we can share through this blog.
The law of unintended consequences has a high profile in matters legal so I make no firm prediction only that whatever we are doing in a year’s time it will be different to now.
Dr. Bob Goodall Chief Medical Officer Premier Medical Group
Thanks for this useful resume of the MoJ requirements, Bob. Most of us who attended the recent conference in Manchester will know that many of these are a natural sequel to the Jackson report into litigation costs.
I welcome many of the provisions of the MoJ requirements, particularly the requirement to specifically comment on seat belt compliance and the principal of avoiding medical record reviews unless there is a specific indication.
Care and attention and work absence are more difficult to produce definitive and fair opinions about since the magnitude of the claims in these respects are, in my experience, more related to the claimant’s personality and perceptions and the specific nature and ethos of their workplace and colleagues than the severity of the accident or their injuries.
Regards
Steve Edwards
Thank you for an excellent summary of the important dilemmas and potential pitfalls of the old and new system.
I agree upon reflection the new system if anything gives greater opportunity to avoid omission of essential information from a GP type report
I do feel as you are saying a simple opinion based on personal experience, statistics and consensus opinion should be within the remit of most practitioners who are willing to have the courage to provide a definitive opinion on the balance of probabilitywith regard to employment and personal circumstances.
As always the differentiation between abnormal illness perception and malfeasance remains paramount and again the Doctors ability to assist in a medical context has been streamlined in my opinion by giving the decision to request further medical information back to the Doctor.
As always but for and the eggshell skull tenets remain central to providing an opinion in individual and compex cases.
Warp has made it easy to comply with the new rules. I find them nearly all useful and relevant. The “working under duress” box sometimes raises a slight smile to cheer the day up. Your tip about the effect of not wearing a seatbelt will be helpful in that difficult question.
Good luck to us all in the future.
I share your glass half full approach to the changes.
The new MOJ reform requirements for expert reports have been promptly addressed by the report writing software, again demonstarting another benefit IT has brought to the low value claims sector.
The issue of time off work and loss of earnings has always been a difficult issue in certain cases and I wait to see what difference the “fit note” will make in this regard. I agree that we need to offer a definite opinion with regards to reasonable time off from their usual occupation even if this seems to contradict their own doctors opinion.
It must be remembered that the patients own GP is their advocate and will often air on the side of caution and avoid contfrontation when if comes to time off work and issue of “sick (or fit) note”. I am not certain that it would require an Occupational Health Physican to challenge this and I feel that any doctor undertaking the role of Medical Expert should be able to comment confidently in this area.
Thanks for a helpful article that will no doubt prompt lively debate.