Over two decades of being connected with medico-legal work in a local, national and international arena, of organising medical conferences and as a Medical Practice Director closely concerned with the provision of orthopaedic expert witness medico-legal reports, I have watched personal injury litigation develop and expand beyond recognition. 

From the original 'doctors note' type of report we are now involved in something that has so many intricacies that we hardly recognise it. In addition to this, the demographic changes and more frequent movement of individuals during their working lives have caused the medical profession the same complications as the legal system in the tracing of individual records. We do not live in a police state and in the same way that individuals are not obliged to register a change of domicile with the police, neither are they required to register with a medical practitioner or to consult one, even in the event of an accident, so it is often difficult to trace all of the records which may be relevant to a particular case.

Trite though the saying may be, experience only comes with time, and having studied law and been the Practice Manager of an extremely busy medico-legal practice for many years, it has become clear to me that it is a considerable advantage if both sides understand the other's requirements and problems. I have read with interest the many articles itemising the lawyer's requirements of the medical practitioner, but have yet to see any comment on the requirements of the medical practitioner from the instructing solicitor (except perhaps in relation to delays in settlement of fees! - about which, more below).

BACKGROUND INFORMATION

It is helpful if the legal practitioner understands the intricacies and logistics of providing a medical report. In a sense the actual appointment to see the patient/client and the dictation and typing of the report are the simplest aspects to arrange, since they are within the direct control of the expert or his medical director or practice manager. An expert whose practice involves a regular throughput of medico-legal reporting will soon have these aspects honed to a level of efficiency which represents the importance of this area to his workload. There are, however, many other aspects which are totally outside the control of even the most experienced and efficiently-run expert witness practice, none of which are proffered (and should not be accepted) as an excuse for delay, but the understanding of which will assist the solicitor.

CHASING RECORDS

The single most common cause of delay in preparing a medical report is difficulty in obtaining the source notes. Many factors affect this seemingly simple process. Often the patient who is required to sign the 'Release of Notes Authority' (which is either done at the solicitor's office, and actioned by the solicitor, or is sent to the expert witness for sourcing) has an inaccurate recollection of exactly where any relevant treatment was carried out, or does not recall the precise dates. Certainly, few patients know their hospital unit number. These factors contribute to the workload of hospital records departments, which are increasingly overloaded and understaffed. The 1990 Access to Medical Records Act, which requires the records to be produced within 45 days and at a nominal cost, relates only to records from that time. Moreover, much like the 'Patients Charter' in relation to waiting times, the Act often proves unworkable. 

In our practice a Medical Records Officer constantly chases records by telephone, post and fax - the fact remains, however, that excessive forcefulness and heavy-handedness (and even, in some cases, personal visits) mostly serve only to sour future relations with the staff who operate hospital records departments, who are for the most part extremely helpful but over-stretched. 

There are often medical records from general practitioners, records from various hospitals and x-rays from other locations, all of which need to be logistically in the same place at the same time to enable the expert to peruse them and efficiently assess the total picture. General practitioners are loath to let records remain away from the practice for long (or even, in some cases, to send them through the post at all, even by recorded delivery, for fear of loss) and the chances of all the items arriving together are extremely remote. Increasingly, the general practice either photocopies records or invites the expert witness to attend the surgery in order to do so. This in itself requires time and liaison, and some GP's staff feel that such matters are low priority. 

Once one set of records arrives the expert witness then has to wait for all of the other requested records. If these are unavailable the sources often fail to notify the expert witness. Consequently, the expert may be left 'in limbo', unless he has staff who positively chase records and appraise the changing situation.

RECORDS MUST BE COMPLETE

 I have personally experienced delays of up to nine months in the provision and collation of all available records for a client. Once these are collated the expert can then dictate his report. In a situation where time is of the essence experts can provide reports with disclaimers, and in the past some experts have provided reports without access to all of the relevant records. This can prove very costly should the case come to trial and the other side produce some obscure and untracked record which reveals that the client has suffered from an underlying condition since birth. 

EXPERT/CLIENT RELATIONS

The solicitor should always communicate to the client the exact reason for the medico-legal appointment. Many clients are not aware that the appointment is for an assessment of their condition and not for treatment, in the manner of a GP or hospital appointment (it is, in fact, unprofessional for an expert witness to give the client an opinion or to interfere in his or her treatment). It assists both the client and the medical expert if the solicitor has made this fact clear to the client. In addition, it is essential that the expert is allowed to make his assessment, and that the client is entirely clear and forthcoming in his explanation of the facts to the expert. 

NOW, WHICH LEG WAS IT ?(!)

Many of the subsequent queries that delay a medical report are due to a misunderstanding between expert and client. Often the client is under stress, or suffering from his condition, and gives misleading information, which he only realises when he reads the report. The report consequently has to be returned to the expert for amendment, resulting in a further delay. This is an area where the legal adviser can assist, by preparing the client for the medical appointment.

Another situation which often arises is the client having a flawed recollection of the earlier events during discussions at the expert witness appointment. An expert witness, trained throughout his medical career in the taking of a patient's history and immediate note taking, rarely gets significant details wrong. However, clients have been known to state that they injured the wrong limb, or were sitting on the wrong side of the car at the time of the accident, etc. Preparation of the relevant facts with the legal adviser is extremely advisable and helps to avoid queries or delays at a later stage.

WAITING TIMES

Like solicitors' firms, expert witness practices vary considerably. Some expert witnesses work within a hospital set-up, others have private rooms with one secretary and still others have two or three offices with a larger staff dedicated to their private practice. The provision of a medical report depends upon these factors and also on the amount of time which is dedicated to the many other aspects of a medico-legal case, of which the appointment for the client is probably the easiest to arrange.

Appointment waiting times should not be excessive, since if the expert witness is an experienced one, who has a large throughput of medico- legal instructions, his or her work practice should reflect and cater for this. However eminent he may be, an expert cannot keep clients waiting for months for an appointment and expect to continue to receive instructions by volume. Appointments can and should be tailored to the requirements of medico-legal reports and should not be subject to long delays.

Another cause of delay which many solicitors do not fully appreciate is that increasingly hospitals and GP's invoice 'up-front' for providing medical notes and x-rays, and refuse to release the items until their invoice has been paid. If the significance of such invoices is not realised by the solicitor or his accounts department this can significantly delay the release of the items and, consequently, the preparation and delivery of the report.

TRANSCRIPTION PROBLEMS

At the risk of stating the obvious I wonder how many solicitors have ever had to try and decipher GP or hospital notes. Many such notes, frankly, border on the illegible and I have seen groups of doctors puzzling over records in order to try and extract the meanings. Even for an experienced practitioner notes can sometimes stretch the expert witness's abilities to the level of a graphologist, and in some cases the brevity of the notes is such that little can be extracted from them except the prescription. Some practitioners employ medical note transcribers, but since ultimately the expert is responsible for the medical report this method is not one which saves a great deal of time for the expert who then also has to peruse the originals.

COMMUNICATION BETWEEN LAWYER AND DOCTOR / DELIVERY OF THE REPORT

Direct dialogue between solicitor and medical expert is of paramount importance. A rapid telephone call or a short discussion between the two can settle many queries. In our practice we aim to answer all queries by return of post or a quick telephone call, to inform the legal adviser of the updated situation. 

We also aim to provide the medico-legal report to the solicitor within three months of receiving initial instructions from him. Our medical records officer constantly chases records, contacts solicitors in order to appraise them of medical report status and delays and of any other difficulties which we may be encountering. If towards the end of this 'target' period we are still unable to source the total notes we offer the instructing solicitor the option of a medical report with a disclaimer, stating that we have been unable to examine all of the required records due to reasons beyond our control.

FEES (!)

Now to the delicate subject of fees. Experts may work solely within the NHS, be NHS plus part-time private, or practise solely in the private sector. An expert witness's level of earnings may therefore reflect several factors.

All expert witnesses will by now have realised that with the many changes in the legal aid system, etc., there are different fee settlement periods. It is important that solicitor and expert have an understanding on this matter. Many experts are not running a business set-up and are not used to delayed settlement - they have to pay their secretary for her typing time and other involvement immediately and they may resent having to wait indefinitely to be reimbursed. Unless they have specifically discussed and agreed a delay in payment they may, not unreasonably, expect their account to be settled promptly. It is an individual matter for the expert whether he is able and/or willing to accept deferred fee settlement. Some experts may not have this flexibility and in order to avoid any unpleasantness such matters should be raised at the outset of any instruction. I have known many potentially good and mutually-profitable relationships be soured by a delay in fee settlement where this aspect was not discussed and agreed at an early stage.

In the medical profession, just as in the legal profession, you get what you pay for. The more experienced and renowned the expert, the higher will be his fees. You pay for his valuable time and for the formulation of an opinion and report which will carry weight and stand up to cross-examination in court. An extremely experienced expert witness is therefore unlikely to be cheap in the first instance, but will prove invaluable should the case reach court (and every case has the potential to do so).

In addition, a court appearance by an expert normally involves the cancellation of work which may be related to his private practice, and will therefore involve him in substantial costs. Expert witness court fees naturally reflect this. Moreover, if a court hearing is cancelled or postponed for any reason it is simply not possible to arrange a clinic or hospital operating list at the drop of a hat. I know this because I have tried to make last minute arrangements on many occasions. Experts do not like to waste time, and an efficient expert who is up to date with his work often cannot fill the 'cancellation period' with paper work. For this reason the expert will normally charge the pre-arranged fee if the court hearing does not proceed.

QUALITY CHECKS

In conclusion, may I sound a note of caution? Solicitors, especially when instructing expert witnesses outside their immediate geographical area, sometimes find difficulty in locating an individual to prepare a report. The obvious places to seek information are, of course, the various expert witness directories, both those in print (in particular, the Law Society Directory) and, increasingly, the 'online' directories, which are frequently more up to date. In recent months there has been an increase in the number of medical agency services, and we have had first hand experience of some of these. No basic criteria or qualifications are necessary to set up such an agency and no expertise is demanded of the operators. Consequently, anyone can set up such an agency.

As in every unregulated field, whilst there are undoubtedly efficient, reliable and professional agencies, there are also those which have little or no conception of the work involved. 'Vetting' of their experts is non-existent. One such agency recently informed me that they were able to provide a medical report within seven days of being instructed, accompanied by full medical notes and x-ray history. I know from my own experience that, with the best will in the world, this is simply not possible. Be warned that any agency which purports to offer this type of service is suspect. (By way of postscript, the particular agency which offered this service to me has recently ceased trading). A three month turn-round, with a degree of time-flexibility, is a reasonable expectation for a first class medico-legal report.

I hope that if you are a legal practitioner this article will have given you a better understanding of the mechanics and difficulties which are inherent in the preparation of such a report.

Ewa Korab-Karpinski

Medical Director
The Consulting Rooms
10 Packman Lane
Kirk Ella
Kingston upon Hull
HU10 7TL

(also covering London, Birmingham and Nottingham)

Tel     : 01482 659048
Fax    : 01482 659048
Email : karpinski@orthopaedic.org.uk