EWJ Dec 2023 - Journal - Page 46
determine how the accident happened and whether it
could have been avoided. Health and safety and other
specialists may also be required depending on the circumstances of the claim. Medical experts may also be
required to help determine core issues such as
whether a claimant’s injuries suggest they were wearing a seatbelt or whether wearing a seatbelt might
have made a difference to their outcome. Medical experts may also be needed to determine how the accident caused or exacerbated the claimant’s injuries.
This can be tricky to determine where the claimant
has a complicated recovery or where they have
pre-existing conditions or vulnerabilities.
When are experts involved?
Clinical negligence
In clinical negligence claims, the claimant typically
engages their legal team when they realise they have
suffered an adverse outcome, but it can be difficult for
them and their legal team to identify whether something has gone wrong with their treatment. For this
reason, medical expert witnesses are instructed early
to provide advisory reports on liability issues. The instructing solicitor will provide copies of the claimant’s
medical records, imaging, serious incident reports and
complaints correspondence. At this point, the medical expert will consider whether there has been a
breach and, if so, advise on causation and viability of
the claim.
Experts and quantum
In relation to quantum, a team of medical experts will
be required to examine the claimant’s injuries and
what they have lost and/or what they need as a result
of those injuries. Medical experts will produce reports
on ‘condition and prognosis’ to explain the nature of
the claimant’s injuries and how they impact the
claimant’s life, discuss any treatment options and provide a long-term prognosis. It is particularly important for the expert to flag any change in the claimant’s
needs that may occur over time. Non-medical experts
will then produce reports to help quantify those
recommendations.
At this early stage, the expert’s involvement may not
be under the formal requirements of CPR Part 35.
This is to allow the legal team to obtain quick and costefficient ‘screening’ advice from the expert so they can
advise their client on their prospects of success and
identify whether a full report is justified.
Personal injury
In personal injury claims, the timing of expert
evidence depends on the nature of the claim. The
legal team can often engage with the defendant and
allege negligence without expert evidence if this is relatively straightforward to determine. If liability is admitted, expert evidence on that issue won’t be
required. However, it is common to involve experts to
examine any physical evidence (such as the accident
scene, equipment or vehicles) if it will not be available
later. Reports would typically be obtained if the
defendant does not admit liability early.
Example in practice
A claimant who suffers a traumatic brain injury
may require experts covering the following core
disciplines:
l Neurology – to confirm the presence of a brain
injury and comment on any physical symptoms
arising from it, discuss prognosis and epilepsy risk
l Neuropsychology – to establish the extent of any
neuro-cognitive or neuro-behavioural issues and
advise on appropriate input
Serious injury claims are complex to run, and liability
and quantum issues are typically dealt with separately.
If the case is challenging on liability, it may be sensible
to wait until that issue has been resolved before obtaining significant evidence on quantum issues. This is
because if the case is lost, the cost of obtaining those
quantum reports will not be recovered from the losing
side as the issue was not being dealt with at that time.
However, the legal teams will take a view on any core
evidence that needs to be obtained to understand the
claim’s potential value. This enables advice to be offered to their respective parties during any settlement
negotiations.
l Neuropsychiatry – if there are psychiatric issues
pre- or post-injury that the neuropsychologist cannot
deal with
l Care – to design a package of care support in light
of the medical evidence to assist the claimant with their
life-long needs
l Occupational therapy – to consider what equipment
the claimant needs to help manage their day-to-day
life
l Accommodation – if the claimant’s home is unsuitable, a disability architect to advise on their housing
needs and provide costs for alternative accommodation and/or adaptations
Preparation of expert evidence
Regardless of whether the issue to be determined is
liability, quantum, or (more unusually) both, the legal
teams for each party will compile their evidence and
work towards a date to exchange that evidence. Typically, this is done in phases: documentary evidence
first, followed by lay witness evidence and finally expert evidence. Experts will be kept up to date on the
other evidence obtained and expected to review it in
detail if it has a bearing on their opinion. This includes
consideration of the other party’s served evidence
where relevant. This allows medical experts to be provided with updates on the claimant’s progress, any ongoing rehab, any treatment they are receiving and any
other changes to their life that have a bearing on the
expert’s opinion.
l Neuro-physiotherapy – if the claimant has an
ongoing need for input, to prescribe the package of
input they need with guidance from the medical
experts and provide a cost for this
This is a basic, non-exhaustive list, and additional
experts would be needed to address the claimant’s
specific presentation and needs. In a serious injury
claim, it is common to have more than 10 experts on
each side.
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DECEMBER 2023