Contents Introduction to the Text Essential Qualities of Medical Experts Legal Context of a Civil Claim for Damages for Personal Injury

Transcription

1 Contents Authors Acknowledgements Contents Foreword i Authors Note iii Picture of Kuthodaw Pagoda, Mandalay, Burma iii Introduction to the Text v 1 Essential Qualities of Medical Experts Medico-Legal Mind Role of the Expert Witness Medical Expert Reports Functions of Expert Reports Writing the Report Comparison of Medical Reports and Medical Expert Reports Dissatisfaction with Medical Expert Reports Consequences Arising from Sub-Standard Reporting Common Problems with Medical Expert Reports Commercial Realities of Litigation Imperative for Developing Evidential Skills 11 2 Legal Context of a Civil Claim for Damages for Personal Injury Purpose of a Civil Claim for Damages Legal Basis of a Claim Breach of Duty Injury, Loss or Damage Causation Contributory Negligence Adversarial Litigation Process Proof Damages: Underlying Principle Types of Claim for Damages Non-Pecuniary Loss Pecuniary Loss Death Possible Future Complications and Provisional Damages Valuation of the Claim Non-Pecuniary Loss Pecuniary Loss Future Pecuniary Loss Costs of Litigation Why Winning Matters Conditional Fee Agreements Part 36 Offers to Settle 31

2 3 Progression of a Claim Civil Procedure Rules Court Managed Litigation Structure of the CPR Overriding Objective Court Management Pre-Action Protocols Pre-Action Protocol for the Resolution of Clinical Disputes Pre-Action Protocol for Personal Injury Claims Pre-Action Protocol for Disease and Illness Claims Low Value Personal Injury Claims in Road Traffic Accidents Commencement of Proceedings Tracks Court Directions Court Control of Expert Evidence Purpose of Expert Evidence The Court s Powers Limiting Experts Fees Legal Professionals Involved in a Case Role of the Solicitor Role of the Barrister Role of the Judge Judge s Approach to Conflicting Expert Evidence 57 4 Roles and Duties of the Expert Witness Duties of Experts The Expert as Fact Finder GMC Guidance CPR Part Narrowing the Area of Dispute Independence Duty to Co-Operate with the Court Process Investigating Claims Restriction on Expert Evidence Form of Expert Evidence Content of Expert Reports Instructions Details of Qualifications Literature Factual Basis of the Evidence Incident/Accident Details and Subsequent Events Examination Findings Factual Disputes 83

3 4.2.8 Disputes between Medical Records and the Claimant s Account Opinion Evidence Fact and Opinion Qualified Opinion Range of Opinion Summary of Conclusions Expert s Declaration Statement of Truth Amendments to Reports Written Questions to Experts Format for the Response Single Joint Experts Comparison of a Single Joint Expert and a Jointly Selected Expert Status of a Single Joint Expert s Report Court Orders Notice of Court Orders Seeking Directions from the Court The Joint Discussion (or Meeting of Experts) Object of the Discussion and the Expert s Role Agenda for the Discussion People Present at the Meeting of Experts The Joint Statement Status of the Discussion and Agreement at Trial Proof Civil Standard of Proof Applying the Standard of Proof Differential Decisions Decision-Making in Civil Litigation Applying On the Balance of Probabilities Establishing Proof Opinion Evidence Causation of Damage Competing Causes of Injury Material Contribution Giving Opinions on Causation Causation Graphs Egg-Shell Skull Principle and Causation Use of Percentages Questions about Percentages Industrial Disease Claims and Material Contribution Application of Material Contribution Test to Complex Factual Situations Apportionment of Damages Approach to the Evidence 140

4 6.4 Acceleration and Exacerbation Differences in Valuation Prognosis and Future Risk Use of Percentages Use of Dates Clinician s Approach to the Future Using Percentages in Opinions on Prognosis Life Expectancy Consequences of Injuries Addressing Consequential Loss Consequences to Assess Pain and Suffering, and Loss of Amenity Medical or Therapeutic Treatment Care and Assistance Current Employment Future Employment and Ogden Life Expectancy Additional Housing, Mobility or Transportation Needs Restrictions on Activities of Daily Living Restrictions on Domestic, Recreational, Social or Sporting Activities Opinion Evidence in Complex Claims Difficulties in Diagnosis Approach to the Evidence Linking the Injury to its Cause Approach to the Evidence Competing Factual Scenarios Approach to the Evidence Exaggeration and Malingering Exaggeration Malingering Approach to the Evidence Observations Outside the Medical Examination Observations Within the Medical Examination Surveillance Evidence Seat Belts and Contributory Negligence Multi-Accident Claims Applying Causation Graphs Approach to the Evidence Cumulative Effects Cases Breaking the Chain of Causation Approach to the Evidence Criticism of Medical Treatment in a Personal Injury Claim Approach to the Evidence Cases that Rely on Expertise 204

5 Structure for a Difficult Opinion Clinical Negligence Legal Principles Legal Principles in Clinical Negligence Claims The Bolam Test Approach to the Evidence Applying the Bolam Test Use of the Terms Negligent or Negligence Level of Skill Required Novices and Specialists Novices Specialists Consent and Failure to Warn Failure to Warn Failure to Treat Conflicting Opinion on Factual Issues Conflicting Opinion on Standard of Care Causation and Material Contribution Reporting in Clinical Negligence Claims Clinical Negligence Marketplace Purpose of Expert Reports in Clinical Negligence Cases Areas of Potential Difficulty in Clinical Negligence Hindsight and Focus Bias Establishing the Factual Basis of the Claim Factual Disputes in the Evidence Series of Events Complex Medical Issues Writing the Report Presentation of the Report Expert Report Structures Linear Report Structure Modular Report Structure Report Templates Presenting Evidence in a Logical Order Writing Skills Writing for the Court Providing Technical Explanations Using Descriptive Language Using Modal Auxiliary Verbs Addressing the Standard of Proof and Relevant Legal Tests Writing Opinion Long-Form Opinion Short-Form Opinion 276 Appendices (a) Personal Injury Report Template Physical Injuries (b) Personal Injury Report Template Psychological/

6 Psychiatric Injuries (c) Personal Injury Report Template Industrial Disease (d) Clinical Negligence Report Template Report Checklist CPR Part Practice Direction to Part Protocol for the Instruction of Experts to give Evidence in Civil Claims GMC Guidance Acting as an Expert Witness Example of a Schedule of Loss 330