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Medico-Legal Magazine Welcome to the third issue of the Medico-Legal Magazine, produced by SpecialistInfo and publishing partner Iconic Media Solutions Ltd. As 2016 draws to a close, we have seen much debate on issues with serious consequences for the industry, including the soft tissue injury claims process reform and a fixed recoverable costs review by Lord Justice Jackson, both of which are rumbling on into 2017. In this issue we present articles relevant to these debates, including the statistics behind the perceived “compensation culture” by a costs lawyer, the challenges faced by MROs since MedCo began, and the growing use of mediation to settle medical claims, and its endorsement by the NHS Litigation Authority and the MDU. We also have a topical article on the psychiatric assessment of victims of historical child abuse, and an advisory article for expert witnesses in court from a team of healthcare law experts. The industrial toxicology case study is a salutary lesson on testing the strength of evidence before bringing a claim. Once again the magazine will be circulated to up to 40,000 people in the industry, including doctors, insurance companies, law firms and medico-legal agencies. It is published on the Specialistinfo.com website, and printed copies can be ordered from Iconic. Specialistinfo maintains a database of contact details for 90,000 UK consultants and GPs, and provides medico-legal training courses for expert witnesses. We welcome feedback from our readers, so please contact us with any suggestions for areas you would like to see covered in future, or share your news and experiences with us.
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SpecialistInfo Medico-Legal Services Lisa Cheyne
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Medical Reporting in 2017, The Year of Innovation? Dr David Pearce
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Whiplash Numbers – Fact or Myth? Simon Gibbs
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Patient Consent for Aesthetic Treatments – More Than Merely Cosmetic? Greg McEwen
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Psychiatric Assessment of the Effects of Historical Child Abuse Dr Paul McLaren
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Mediation Within the NHS in Scotland Linda Paterson
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An Industrial Toxicology Case Study Dr Ian Perry
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Factual Witnesses and Expert Advisors – Lessons Learnt from Recent Trial Wins Laura Scott and Chloe Davies
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A Revolution for Medico-Legal Experts? Jonathan Dingle FRSA
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Medico-Legal News
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Lisa Cheyne SpecialistInfo Medico-Legal Magazine
SpecialistInfo t: +44 (0)1423 727721 e: magazine@specialistinfo.com www.specialistinfo.com
Medico-Legal Magazine is published by Iconic Media Solutions Ltd. Whilst every care has been taken in compiling this publication, and the statements contained herein are believed to be correct, the publishers do not accept any liability or responsibility for inaccuracies or omissions. Reproduction of any part of this publication is strictly forbidden. We do not endorse, nor is Iconic Media Solutions Ltd, nor SpecialistInfo affiliated with any company or organisation listed within.
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Standard (Personal Injury) Medico-Legal Course (a general overview for anyone starting a medico-legal practice):
MEDICO -LEGAL COURSES: By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo
Tr a i n i n g C o u r s e s for Expert Witnesses The dates and locations for the five types of ML courses that we are holding during 2017 are listed below and opposite with links to our booking page.
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31st January 2017 – London (limited places left)
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13th September 2017 – London
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22nd November 2017 – Manchester
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Advanced Medico-Legal Course (for those who want to update their knowledge): •
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6th December 2017 – London
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Mediation Training Course (5 days or can be split into 3 Modules - please call for details): •
9th-13th January 2017 – Manchester
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6th-10th February 2017 – London
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6th-10th March 2017 – London
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3rd-7th April 2017 – Birmingham
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10th-14th July 2017 – London
MORE DATES TO BE ANNOUNCED
Clinical Negligence Medico-Legal Course (we recommend moving onto this course only after some basic training has been completed): •
1st February 2017 – London
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9th June 2017 – Birmingham
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14th September 2017 – London
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23rd November 2017 – Manchester
£1,600-2,000 (plus VAT) (or £400 plus VAT per day if split into Modules) For further information about the Mediation course please visit: www.specialistinfo.com/a_ml_mediation.php
(limited places left)
£355 (plus VAT)
To book your place on one of the above courses please complete the booking form on our website by clicking on one of the above links (discounts are available for multiple bookings – please call Lisa to discuss or to book over the phone).
For further information about the Clinical Negligence course, please visit: www.specialistinfo.com/a_ml_clinicalneg.php
Please contact me, Lisa Cheyne, on 01423 727721 or email me at lisa@specialistInfo.com
Court Room Skills Medico-Legal Course (mock court sessions with realistic cross examination): •
2nd February 2017 – London (limited places left)
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15th September 2017 – London
Numbers are strictly limited so early booking is advised to make sure you do not miss out on these enjoyable and highly informative courses. I look forward to hearing from you soon Kind regards Lisa Cheyne Medico-Legal Course Manager
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MEDICAL REPORTING IN 2017, THE YEAR OF INNOVATION? By Dr David Pearce, Director, Nephos Solutions MedCo has seen little evidence of the mature, fit for purpose Medico-Legal sector that industry has spent so many years portraying to both government and the market in general. Calculated disruption to both randomisation and the accreditation process have failed to achieve the antagonists’ goal of making MedCo last as long the HIP packs did in conveyancing. And there appears to be little retreat in these tactics following the recent belated implementation of the review, with emergency meetings and rumours of calls for refunds for the shell companies, despite three public statements during the summer that none would be given.
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Whilst I would admit that some aspects of the guidance on the new criteria require clarification, there are significant aspects which support randomisation, fragmentation and appear to level the playing field. Any form of group marketing is clearly banned, but this comes hand in hand with the prevention of Tier 1 companies with shared common ownership from having the same client markets. This clearly prevents double dipping with the same customers. The challenge for progressive MROs in 2017 is to offer instructing parties the ability to work with 4050 MROs in any given year, whilst remaining a fully
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"If the market genuinely wants good independent medical evidence, then it will now embrace the fragmentation that randomisation brings, rather than fight it."
autonomous organisation, deciding which expert to use for any given case, but at the same time making the customer journey for their clients as simple as possible within this randomised world. Looking back at our own short journey, we are proud that those MROs we have accredited have respected the rules of autonomy, and enhanced their reputations over the past 18 months as respected small businesses, many of whom have surpassed the service offered by Tier 1 MROs when independently benchmarked against them. My own opinion is that the sector needs to look towards innovation of the type that took us forward in the first decade of this century. Far from the rhetoric that adorned the Association of Medical Reporting Organisation’s board meetings 10 years ago that WARP and other report writing software, 'devalued what we do', it has been shown that this and other
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advances have hugely enhanced the procurement of medical evidence. If the market genuinely wants good independent medical evidence, then it will now embrace the fragmentation that randomisation brings, rather than fight it. It will look to new operational and technological innovation so that Instructing Parties can have the confidence to instruct multiple suppliers in the knowledge that their cases will be handled diligently and in the most operationally efficient way for them and their clients when using 50 MROs and not one or two. This is the challenge that we have focused on since the announcement of MedCo and is one that we, and we hope others, will continue to relish moving into 2017.
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WHIPLASH NUMBERS – FACT OR MYTH? By Simon Gibbs, Costs Lawyer and Partner at Costs Consultants Gibbs Wyatt Stone
Statistics have a wonderful ability to be manipulated to prove almost anything. However, one would hope that rational and clearheaded thinking would largely avoid this problem in the medico-legal world. But how to explain the strange decline in whiplash claims?
surprising given the inherent problem of diagnosing an injury where the symptoms are largely selfreported. How many of these claims are genuine? A recent headline from the Mirror newspaper gives a typical example of how this issue is often perceived:
For at least the last three years the Association of Personal Injury Lawyers (APIL) has been routinely trumpeting apparent falls in whiplash claims. A typical example being a tweet from June of this year that:
“UK becomes whiplash capital of the world as ambulance chasers look to cash in on compensation”
“Whiplash claims have fallen 41% since 2010/11. Let’s build policy based on fact, rather than myth.” To place this in context, APIL is a campaigning organisation for claimant personal injury lawyers. Their members have been under the cosh for a number of years defending themselves from accusations that this country is plagued by a compensation culture. Whiplash claims have been one of the central examples of this alleged problem. This is not entirely
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The problem (or perceived problem) has become so widely accepted that there have been calls from some quarters, including former justice secretary Jack Straw, to ban whiplash claims entirely, with the matter apparently being given serious consideration by the government. It can therefore be seen that APIL’s repeated claims that whiplash claims are actually falling in number is a direct attempt to counter the growing perception there is a compensation culture problem. APIL claims that their whiplash figures come directly from the
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government’s own Compensation Recovery Unit (CRU) obtained as a result of freedom of information requests. If there has been a fall of anything like 40%+ in whiplash claims in recent years, the obvious cause would either be a significant reduction in road traffic accidents or, alternatively, a reduction in the number of legal claims being made (perhaps as a result of measures to clamp down on the cold-calling of accident victims and/or efforts to regulate claims management companies). So what does the CRU data, freely available on the Department for Work and Pensions’ website, say has happened to motor claims since 2010/11? The figures for settlements recorded shows the number of motor claims as: 2010/11.................................................................659,671 2015/16.................................................................732,788 So the actual figures for motor claims settled shows a fairly significant increase in claims where insurers have had to pay out. More commonly, commentators focus on the number of claims registered. What does the CRU data show? 2010/11.................................................................790,999 2015/16.................................................................770,791 This is a statistically irrelevant 2.6% drop. Neither set of figures suggests any meaningful reduction in accidents or claim numbers. Unfortunately, the DWP does not publish figures for whiplash claims, hence APIL’s reliance on freedom of information requests. If claim numbers are largely unchanged over this period but whiplash claims are down around 40%, it must mean non-whiplash claims are up by almost exactly the same amount in terms of absolute numbers. Whiplash claims are generally claims that fall at the lower end of the injury scale in terms of seriousness and damages paid. On the face of it, it is difficult to see how these figures can be interpreted as meaning anything other than that there has been a massive increase in more serious non-whiplash injuries.
571,111. The DWP figures for that year record 790,999 overall motor claims. The number of non-whiplash claims was therefore 219,888 (790,999 less 571,111). If (according to APIL) the total number of whiplash claims has dropped by 41% in 2015/16 it must mean whiplash claims were down to, about, 336,955 (59% of 571,111). The overall number of motor claims that year was 770,791. That would leave a balance of (about) 433,846 (770,791 less 336,955) non-whiplash claims. That is almost a doubling (from 219,888 to 433,846) of non-whiplash injuries during a period where overall claim numbers were basically unchanged. That is wholly implausible. Nothing could explain such a dramatic change in the nature of injuries suffered in RTAs during such a relatively brief period of time (with no significant changes in car design, seatbelt use, road congestion, etc.). (Government figures give the number of pedal cyclist casualties reported to the police (not claims) as a result of road accidents in 2014 as 21,287. Even allowing for a very major increase in the number of cyclists since 2010/11, with a corresponding increase in casualties, and allowing for the fact the number of claims may be higher than the number of accidents reported to the police, an increase in cycling injuries does not seem to be a remotely plausible explanation for the massive increase in non-whiplash claims). The far more likely explanation is that there has actually been no significant change in whiplash numbers but that many claims have simply been “reclassified”, possibly as a result of the new rules concerning soft tissue injuries (which limits the recoverable costs of medical experts’ fees in such cases). Whether this change in classification is as a result of pressure from solicitors or medical agencies on medical experts is a matter which no doubt merits further investigation. In any event, whatever this “drop” in whiplash claims signifies is almost certainly not evidence that assists in the debate about the existence or otherwise of a compensation culture.
To elaborate, previous figures via APIL gives the number of whiplash claims in 2010/11 as being
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PATIENT CONSENT FOR AESTHETIC TREATMENTS – MORE THAN MERELY COSMETIC? By Greg McEwen, Partner, BLM Law, Specialises in defending complex and high value clinical negligence claims, previously for the NHSLA and now predominantly for the MPS. It’s been over three years since the Government Committee chaired by NHS Medical Director Sir Bruce Keogh published its final report into the regulation of cosmetic interventions. The report contained some 40 recommendations for change within the industry, including changes to the way in which patient consent is obtained. In April this year, the GMC published further guidance for doctors who offer cosmetic interventions.1 So has the Keogh Report produced the desired effect? Has the practice of consenting patients for cosmetic procedures changed and if so how? Around the time the Keogh Report was published in 2013, the Royal College of Surgeons’ Cosmetic Surgical Practice Working Party produced a document entitled “Professional Standards for Cosmetic Practice”. In turn, those Professional Standards referred on the issue of consent to earlier applicable guidance produced by the General Medical Council in June 2008, entitled “Consent – patients and doctors making decisions together”. The 2008 GMC guidance is not specific to cosmetic or aesthetic practice. However, in considering the responsibility for seeking a patient’s consent, it clearly recognises the possibility of consent being taken by someone other than the practitioner performing a procedure and covers the potential for delegation, at the time a reasonably widespread practice. There was early evidence of change within the cosmetic industry in the 2013 Professional Standards. At paragraph 5.2.2 it was noted that: “Consent is a process that begins at the first consultation. The practitioner should check for consent at every stage of the pre-procedure processes. Different processes should be followed depending on the relative risk level and the severity of the
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procedure. However, in general, the practitioner performing the procedure should obtain consent from the patient at least once in person and a signature indicating consent must be obtained at least once on the day of the procedure. The Working Party recognises that this is over and above that expected in the NHS but cosmetic practice is a special case where both the practitioner and the patient need to have a common understanding of the expected and likely outcome.” Within the 2013 Professional Standards, it is recommended that for invasive procedures (e.g. surgery and liposuction) consent ought to be a twostage process, with at least two weeks between the stages to allow the patient to reflect on his or her decision. It is also recommended that the operating surgeon should see the patient personally immediately before the procedure, in order to re-emphasise the consent, and should take consent at least once “even if consent has been obtained previously from another practitioner”. Subject to certain safeguards therefore, the 2013 Professional Standards still allowed for the pre-operative consultation to take place with someone other than the operating surgeon, provided the operating surgeon “re-emphasised” the consent immediately before the procedure. Bringing things right up to date, the General Medical Council published a document on 12th April 2016 entitled “Guidance for doctors who offer cosmetic interventions”. This came into effect on 1st June 2016. That guidance contains the following passage on consent: “If you are the doctor who will be carrying out the intervention, it is your responsibility to discuss it with the patient and seek their consent – you must not delegate this responsibility. It is essential to
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a shared understanding of expectations and limitations that consent to a cosmetic intervention is sought by the doctor who will perform it, or supervise its performance by another practitioner.” Thus it appears that delegation is now expressly disapproved. It can be seen how the guidance has evolved since 2008, to promote best practice within the industry. It can be seen for example that the 2016 GMC guidance suggests a more stringent approach to consent than that set out in the 2008 guidance. Over time, industry practice has varied (and to an extent continued to do so up until relatively recently) from case to case, clinic to clinic and depending on the particular procedure for which the patient consulted. The once fairly widespread situation of a patient meeting their surgeon for the first time on the day of surgery is now unlikely to satisfy the more stringent requirements of the latest GMC guidance. Those that are slow to catch up are at risk of patient complaints, GMC investigation and court claims. Consider the following examples: 1. A patient has a pre-operative consultation for a cosmetic procedure with a practitioner who does not perform that particular type of procedure. They receive a full explanation of the risks and benefits and opt to proceed. They then meet their surgeon on the day of the procedure. 2. A patient has a pre-operative consultation for
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a cosmetic procedure but for one reason or another the consenting practitioner is not available to carry out the procedure on the day and it is undertaken by somebody else, who meets the patient for the first time on the day. Both of these examples are arguably capable of falling within the applicable guidance from 2008 and latterly 2013 (so long as the doctor performing the procedure “re-emphasises” consent on the day). Since June this year however, practice such as this is likely to fall foul of the prohibition on delegation. Ultimately of course, this is one of the outcomes that the Keogh Committee set out to achieve when it published its report back in 2013 – a tightening of standards across the industry. This was to be combined with a new focus on indemnity and redress, with an emphasis on adequate recourse and redress for patients who suffer an adverse event. In the end, the emphasis on regulation, informed choice and redress will be to the advantage of not only consumers but also practitioners. In the long term, the industry as a whole should benefit from an enhanced reputation. In the meantime however, clinics and practitioners who fail to embrace these new standards may, along with their indemnifiers, find themselves facing an increase in claims from dissatisfied patients. 1
http://www.gmc-uk.org/guidance/ethical_guidance/28687.asp
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PSYCHIATRIC ASSESSMENT OF THE EFFECTS OF HISTORICAL CHILD ABUSE By Dr Paul McLaren, General Adult Psychiatrist and Medical Director of The Priory Hayes Grove The recent public focus on historical child abuse has led to an increasing number of personal injury claims. This presents particular challenges for survivors and psychiatric experts. Survivors will be asked to remember deeply painful experiences associated with powerful negative emotions such as shame, guilt and anger. Their instincts and psychological defences will have worked to suppress their memories of these events for many years. They will usually have been through police and solicitors’ interviews before they get to a psychiatric expert but they will still be raw and frightened and often overwhelmed with shame. To get the most from the interview, the process needs to help the survivor to feel as safe as they can. They may associate psychiatry with social work and professionals who previously abused them. Some find it helpful to have a pre-interview telephone call to ask what will happen, and hearing the voice of the expert before the interview can offer reassurance. The interview has to be finely tuned to the survivor’s mental state at the time. If they are prone to using alcohol or drugs to manage their emotions then they should be encouraged not to drink or use before the interview. That should not be just assumed and some will find that very difficult to do. Clear explanation of the interview process can help to establish it as a safe place. It can be helpful to make a supportive statement, so that if there are any areas which they do
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not want to explore then that should be their choice, and they can stop a line of questioning or even the interview at any time if they wish. It may be best done over a number of sessions, which facilitates the building of trust. For the expert, one of the most challenging questions is the ‘but for’ question. But for the index abuse where would the survivor have ended up? Some will have had traumatic family lives before the index events which led to them being placed in care or taken away from their families. Having objective information on their pre-incident functioning from school or social services’ reports can be helpful. A positive assessment is one which not only fully addresses the issues raised in the letter of instruction, but is also cathartic for the survivor, increasing the chances of them being able to subsequently engage in psychiatric treatment for their injuries. Dr Paul McLaren is a General Adult Psychiatrist and Medical Director of The Priory Hayes Grove and The Priory Ticehurst House. He is experienced in assessing parental mental health in the context of childcare proceedings and preparing medico-legal reports in the areas of post-traumatic stress disorder and psychological disorders complicating physical injury.
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MEDIATION WITHIN THE NHS IN SCOTLAND By Linda Paterson, The Mediation Partnership
The use of mediation within the NHS in Scotland is proving to be a slow burn. The Patients Rights (Scotland) Act 2011 sets out the requirement on NHS Boards to consider and make provision for alternative dispute resolution, such as mediation, to resolve complaints. However, there is still minimal use of this option. A review of a six-month mediation pilot involving five NHS Boards in conjunction with the Scottish Mediation Network (the umbrella organisation responsible for quality standards and promoting mediation in Scotland) concluded that learning from the pilot was limited due to the very few referrals made during the period.
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So why this lack of uptake? Anyone with experience of either working for, or using the services of, the NHS would probably agree that this is not due to a lack of disputes. Given the high stress of the kind of situations which are commonplace in healthcare environments – such as demanding patients and time pressures for employees, and pain, fear and overstretched staff for patients, the opportunities for conflict are rife. Mediation has an impressive track record in resolving conflicts in many areas, such as family breakdowns, neighbour and community conflicts, workplace and
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commercial disputes. The generally cited success rate is usually between 80-90%, and through my many years of mediating various disputes this figure has been remarkably consistent. So what is preventing mediation from being used more frequently within the NHS? There are probably a few reasons behind this. The NHS as an organisation has only very recently considered using mediation in any systematic way – and, as with any new initiative, it can take time to embed. Often people do not have a full understanding of mediation and what it entails, making them unsurprisingly wary about signing up for it. People are often unclear about how it fits with other policies and procedures. It is often seen as a last resort, rather than an opportunity to nip a potentially damaging dispute (both on a personal and organisational level) in the bud before it escalates. Often people aren’t even aware that mediation may be an option, and, feeling that there is no other alternative available to them, go straight to more formal proceedings. Once formal proceedings have started, which by their very nature are adversarial, disputes frequently escalate and positions become more entrenched. If these escalate to the level of legal proceedings they can be lengthy, hugely stressful and extreme costly to all concerned, sometimes leading to huge legal fees for the NHS. Sometimes internal gatekeepers lack a full understanding of the potential of mediation, and as a result place such restrictive criteria on referrals that very few cases make it through to a mediator. Where internal mediation teams exist, there may be reluctance by inexperienced mediators to take on cases which are seen as particularly challenging. Even if mediation is offered, many people are understandably apprehensive about sitting down with the person, or representative of the organisation, that they are in conflict with. If they do not receive the necessary information and support at this stage of the process, they are not in a position to make a fully informed choice and are unlikely to pursue the option of mediation. So is it worth continuing to try to establish mediation as an integral part of NHS procedures? I would
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argue that the answer to this is definitely yes. With mediation’s proven track record it has the potential to save the NHS thousands of pounds if used appropriately and effectively. Not to mention exponentially lessening the stress on both staff and patients involved in disputes. So can anything else be done to achieve this? The inclusion of mediation within the 2011 legislation is hugely important, as it legitimises it as a recognised form of dispute resolution. However, this alone is not enough to increase the use of mediation. It requires a culture shift, which can only be achieved through on-going awareness raising and promotion of the values of mediation. In my experience, the key to increasing the use of mediation is to appoint a dedicated mediation co-ordinator or champion (usually in conjunction with another complementary role), ideally within each NHS establishment. This would preferably be someone who is trained in mediation, or at a minimum has a full understanding of how it works and is passionate about its potential. Finally, the culture change required to grow mediation is far more likely to be achieved if people from within the NHS, or with a background in healthcare, are selling the product. Although mediation skills are generic and can be applied in conflict situations in all areas, it is an aspect of human nature that we are more likely to listen to, and take seriously, people whom we feel have a thorough understanding of the types of disputes we are dealing with. Increasing the use of mediation within NHS Scotland will be a challenge. However, given the numerous other issues being faced by the NHS at the current time, I would argue it’s a challenge it cannot afford to ignore. The Mediation Partnership is an independent company whose partners, Aileen Riddell and Linda Paterson, are both accredited mediators with many years of mediation experience. They specialise in providing workplace mediation services and Scottish Mediation Network (SMN) Accredited training for mediators. enquiries@mediationpartnership.co.uk
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AN INDUSTRIAL TOXICOLOGY CASE STUDY By Dr Ian Perry is an Occupational and Aviation Medicine Expert Witness with over 25 years’ experience of taking on cases involving duty of care and injuries at work
As Expert Witnesses we all see cases that we think are interesting. We would not take them on if they were not of interest to us personally, and within our compass of expertise to deal with. To others these cases may not seem to be as fascinating, but they all have lessons for each and every one of us to learn from these experiences. This case involved a man aged 40, who alleged he had been poisoned by a substance, some 10 years previously, following a possible exposure of a few hours a day, over a period of a month. This substance could be carcinogenic if inhaled, producing lung tissue lesions over a period of time. One question that our expert was asked over and over again by the appellant’s legal team, was how long could this period of time be? After all, mesotheliomas can appear 20 to 30 years after exposure. Our expert had to become the world’s most informed person on every aspect of this material, as the case was going to be heard some months hence in a Western Court. Our expert was instructed by the employers of the man
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involved, as they wished to defend the claim, that this man had been unable to work normally for the intervening 10 years, and he was claiming loss of earnings, which was a considerable sum, for that period of time. Where to start? Well where would our appellant have found information that this substance could have affected him for 10 years? Wikipedia is interesting in this type of case and always worth an initial read. To defend such an allegation however requires specialist knowledge and where to find it. Proof is required to support any statement made, and as we know this is a long and arduous task. This substance had a reputation going back long before the start of the Internet. Those who write dissertations for higher qualifications are always being told, especially by me, that you need to read real books, in real libraries, and look up the references in such books, to get the true history and story. This chemical had been used in the metal industry for 70 to 80 years. There were documented cases of lung cancer
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attributed to this chemical in the late 1940s. The very long literature search showed that the last cancer case to be written up was in early 2016, in a person working in the metal industry in the Far East. Most journals of occupational medicine and industrial medicine around the world are available in English, and one quickly learns to put the right words into the various search engines when using the Internet. On the world wide evidence available, no one had developed a lung tumour or any other lung complication from this chemical after a period of 6 to 9 months. Our appellant was complaining of fatigue, skin irritation, rhinitis, an inability to concentrate, and an upset stomach, which needed a special diet. He also complained of a loss of libido, all during and after a period of 10 years. The Internet describes that all of these signs and symptoms could be attributable to the chemical under investigation. He was medically examined by our expert. He looked very fit. He was well nourished, and was very alert. He did however have an allergic rash on his chest, with general dermatographia. It was at this point, that months of investigation and hard work, were taken over by animals. He was asked if he had any pets. He stated quite proudly that he and his partner had taken in stray cats for many years. They had three at the moment. The scratch marks on his chest looked feline. Do you cuddle your cats? Oh yes he said, and sometimes they do not like it and try to get away. His claim suddenly weakened. He had not connected the cats to his allergic symptoms. No one found in the literature search, who had suffered with allergic symptoms, had complained for more than a few months, even after a fairly heavy exposure. He was not told any of this. He had made his statement to the Court. At the time of the medical examination it had not been available, and so had not been read. The examiner was therefore not biased in any way. His intimate relationship with his partner was fine. He had fathered a child with a previous partner in the time frame, so libido was not discussed any more. He had been thoroughly investigated for his stomach symptoms, gastroscopy, colonoscopy etc. and IBS had been mentioned. It seems that whatever investigation he asked his GP for, it was done. It was his GP who had said he was probably suffering from the effects of his exposure to
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the chemical, as there seemed to be no other explanation. There were however, no recorded cases of IBS in anyone who had accidentally ingested the substance since it was first used. There were no reports of any chronic gut inflammation or tumours. As to his actual exposure, there was some vagueness. He stated he had seen a bag possibly containing the stuff lying around, and that the ground where he worked he was sure had been contaminated. The Company had in fact cleaned up the site before he arrived, as there had been some spillage in the past. However once again animals proved a point about possible exposure. The appellant’s love of animals did not help his case. He was asked about the health of the other people who were there with him. Did anyone else become unwell. Did anyone have a cat or a dog. Had he seen any rats, mice or birds on the site. No one apparently had reported any illness of any sort to his knowledge, but there was a dog. The dog lived permanently on the site where he had worked, and it had given birth to seven puppies almost on the day he arrived. At no time whilst he was there did a single puppy die, or become ill. When he left some 5 weeks later, all the dogs were well and running around everywhere. Had the ground been contaminated, at least one of those puppies should have been affected. Our expert wrote his report and gave his evidence to the court. The fact was stated that there was not a single case written up anywhere in the world, of anyone exposed, suffering from anything described, 10 years later. When challenged as to whether it was still a possibility that he could still develop some condition after all this time, the answer was, that based on all the evidence available to date, no, it is not possible. How can you be so sure? The answer was that if no one anywhere in the industries that used this material all the time and who had a much higher, more constant exposure had developed symptoms, then this person’s minimal if at all exposure, was certainly not going to produce any signs or symptoms after all this time. This view was accepted and the case was settled in favour of the employer. No appeal has been lodged.
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FACTUAL WITNESSES AND EXPERT ADVISORS – LESSONS LEARNT FROM RECENT TRIAL WINS By Laura Scott, Solicitor and Chloe Davies, Senior Solicitor from Hempsons Solicitors, healthcare law experts, charity lawyers and specialist NHS lawyers with offices in Newcastle, Harrogate, Manchester and London
We all know the importance of testing your evidence throughout a claim, before deciding whether to progress to the next step. Robust factual and expert evidence is crucial for both Claimants and Defendants, and a failure to recognise, and address, any deficiencies in the evidence can have critical consequences. Even if you manage to gloss over a weakness in the written evidence, there is a significant risk it will come to light in expert discussions and next to no chance that it will not surface on cross-examination at Trial.
Witness Evidence It is obvious that, where expert opinion turns on a particular version of events – whether that be in respect of symptoms, events or conversations – clear and accurate witness evidence is crucial in assisting the judge in settling the factual discrepancy.
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For the Defendant, where breach of duty remains in issue, the evidence of those involved in the direct management of the Claimant is the foundation upon which a solid defence is built. Without a robust clinician, capable of providing clear, concise and coherent evidence, the challenges which we face at Trial are ever more difficult. So what makes a compelling defence witness? Clinicians do not need to recall everything that occurred during the attendance. Given the typical passage of time, it can raise suspicion if clinicians remember everything about attendances; particularly those where appointments are routine or injuries are generic, or where their recollection goes beyond what is recorded in the medical records. Where a clinician cannot recall the specifics, it is helpful for them to refer to their usual clinical practice or whether, for example, the factual
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circumstances being alleged are simply something that they would never do/say. Inferences can be drawn from usual practice and it can help to fill gaps in the contemporaneous medical records. Typically, reasons for a clinician usually saying/ doing something can be well explained and justified. In one trial, the Claimant alleged that the failure to record a test within the records indicated that it had not been performed. Notwithstanding the clinician’s inability to recall the attendance, the Court accepted that the test was one which he always performed. It is important to set out within a witness statement, a clinician’s background, training, experience, any supervisory roles or relevant research. This information cannot be ascertained from the medical records but goes a long way towards painting a picture of the overall standard of care provided. For example, in one of the trials, it assisted the Judge to provide the surgeon’s audit statistics as published by the Association of Coloproctology of Great Britain and Ireland. This demonstrated how many of these procedures the surgeon performed, their mortality rate, how they ranked amongst the surgeons at that Trust and that their statistics were better than the national average. Witnesses should direct responses to the judge and provide explanations in lay-man's terms, especially for complex medical issues. It is not the role of the witness to fight the case. A good witness sticks to the facts, answers the questions posed and provides honest, clear and reasoned responses, without exaggeration. They do not become defensive when challenged. One trial was discontinued following the Claimant’s evidence, with neither the Defendant’s factual or expert witnesses having been called. Whilst there were many factors that led to discontinuance, stating that the injured leg had swollen to five times the normal size from the ankle to the groin and an admission that the updated Schedule of Loss included a claim for past losses that had not been incurred, certainly did not help. In another, an overly defensive Claimant quickly lost the Judge’s sympathy.
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Expert Evidence Once witness evidence has been dealt with, the next challenge is expert evidence. So what makes a persuasive expert? Experts must maintain their independence; their duty is to the court and they are not a hired hand. Opinion that lacks justification but supports the case of their instructing solicitors is likely to cause a judge to consider the entirety of their evidence cautiously. Experts need to be relevant. In cases relating to NHS treatment, where liability is in issue, the expert should, ideally, have been in NHS practice at the time. Experts who, on their face, appear to be superstars in their game are not always the best experts. How can experts who have never worked in the NHS comment upon the options and timescales for treatment available in an NHS setting? No matter how much preparation such experts do before trial, they simply cannot create experience that they do not have. Experts also need to consider breach of duty by applying the standard of care that was supported by a responsible body at the time. In one trial, an incredibly experienced and well respected expert surgeon, conceded that practices had changed since his day and whilst he would have done things differently “with the benefit of hindsight it was an error of judgement but it was not a breach of duty”. Which leads on to another point – opinions should be based on the information the clinician had at the time, not hindsight. Can the expert’s opinion be supported by literature? If so, has it been disclosed and is the information relied upon being applied in context and correctly interpreted? In one trial, the expert advised that there was literature in support of his opinion. When pressed for specific details and asked to adduce copies to the Court, he was unable to do so. Whilst the reasons for the successful defences were multifactorial, there is no doubt that factual and expert evidence played a significant part. The key lesson learnt was to test your evidence at every stage - any deficiencies will come out eventually!
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A REVOLUTION FOR MEDICO-LEGAL EXPERTS? By Jonathan Dingle FRSA, Barrister and Course Leader for SpecialistInfo Medico-Legal Courses
Dame Janet best known as Lady Justice Smith
Dr Mike Devlin Head of Professional Standards, at the MDU
In 1966 Robert F. Kennedy delivered a speech that included a passage: there is a Chinese curse which says “May you live in interesting times.” He could hardly have contemplated the rise of President-Elect Trump or Ambassador Farage1 - but for medico-legal experts these are interesting times. Having lost their protection from being sued in Jones v Kaney2 and been given a role in weeding out fraud3, forced in low value matters to register with MedCo4 if they want to work independently in this area of work, there are now remarkable proposals coming from Government to limit damages for soft tissue injuries to £425 whatever a doctor finds. There is even a proposal, again from the Ministry of Justice, to remove the burden on defendants to pay for legal costs and the medico-legal expert’s fees in proving the injury!5 Quite what this will mean in practice is very difficult to predict. In higher value cases, there will be a premium on resolution, whether from expert determination or adjudication, to doctor-led mediation under the NHS Litigation Authority’s new scheme which will be announced in January. It is certain that evidence will need to be tightened and medico-legal experts will need to understand the context and best practice in resolving claims, be they clinical negligence or personal injury matters. This should not depress the community. There is no reason to be dour – a can-do attitude will be far more effective. To that end, a leading former High Court Judge has called practitioners to a seminar in Manchester on 18th January 2017.
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Perhaps best known as Lady Justice Smith, Dame Janet was called to the Bar in 1972, practising in Manchester and specialising in personal injury and clinical negligence cases before taking Silk in 1986. She prepared The Shipman Inquiry in 2002 and that same year became only the fourth woman to be appointed to the Court of Appeal. Dame Janet has been the Treasurer of Lincoln’s Inn, the Independent Assessor for Miscarriage of Justice Compensation and President of the Council of The Inns of Court. More recently she was appointed by the BBC to lead the Savile Enquiry and her report was published in February this year. Dame Janet also acts as an independent assessor and an accredited Mediator. Under her chairmanship, practitioners will meet at Exchange Chambers, Deansgate, Manchester6 on 18th January to hear and discuss ways of making the medico-legal and claims resolution process better – a New Year’s Revolution. Despite the passing of Fidel Castro, the author believes that revolution is in the air – and that the new year will toss real firecrackers onto the embers of the personal injury and clinical negligence world. To that end there are assembled a conspiracy of experts in various fields. Recognising the importance of medico-legal experts, Dr Mike Devlin, Head of Professional Standards, at the MDU will address the seminar, and will discuss the challenges that experts face. Mike is a former Army Medical Officer who brings a very practical style to the role in the MDU. He sees the difference doctors make in society, and personal injury claim, and is passionate about the ethical and effective work that medico-legal experts are required to undertake. In the public sector, the NHSLA will discuss their approach to evidence in 2017 and leading personal injury silk, Bill Braithwaite QC, will look at the ways that experts can adjudicate disputes. A panel will then discuss options and experts will be encouraged to join the debate.
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Newly-crowned Personal Injury Mediator of the Year, Jonathan Dingle will look at the role of mediation and how the NHS is going to work its scheme. He will draw on the increasing use of mediation in Trusts both to iron out complaints and to help Consultants and other staff work effectively. He will explain the role of experts as mediators and the strengths and weaknesses of mediation. Presentation, though, is important – in the witness box and on paper. Leading BBC character actor, Andrea Gordon, will offer a session in the seminar, on presenting evidence as an expert witness or indeed a barrister. Andrea’s courses in non-verbal communication are sought after and it will be interesting to compare the way in which medico-legal experts think they appear and how they actually come across when giving evidence. The real force of the day, though, is in discussing and understanding the Revolution in resolving claims that is coming. By October 2017 there will be a whole new game in town and those who understand its business and requirements will be well placed to work in it and to thrive. It will be a collaboration between all the professions involved and the results of the day will be passed on to those discussing the way ahead through the number of senior judicial figures attending. Robert Kennedy never had the chance to do what history perhaps intended for him. Castro perhaps over-achieved. But even in the sometime arcane field of medico-legal reporting there is a time to be interesting. The author hopes to see as many experts as possible in Manchester on 18th January* to fulfil the proverbial prediction. *A New Year’s Revolution will be held at Exchange Chambers, 210 Deansgate, Manchester M3 3NW from 0900 to 1700 on 18th January for full details click here The fee is £80 plus VAT. It includes materials, lunch, and a prosecco networking reception. Any profit will be donated to charity. To book a place please call 0207 353 3936 or email revolution@218strand.com The author acknowledges (hopes) that at least one of these might not eventuate 2. Jones v Kaney [2011] UKSC 13 3. See: Section 57 Criminal Justice and Courts Act 2015 4. http://www.medco.org.uk/home/faqs/ 1.
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https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/570181/reforming-soft-tissue-injuryclaims-process.pdf 6. Exchange Chambers, 201 Deansgate, Manchester M3 3NW 5.
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MEDICO-LEGAL NEWS The Civil Justice Council has published a report on concurrent expert evidence and hot-tubbing, and its use in English litigation.
Underfunded, underdoctored, overstretched: The NHS in 2016
The Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals have published a joint statement, on their shared vision for the future of HM Courts & Tribunals Service MOJ Sep 2016
The Royal College of Physicians (RCP) has long argued that we need to rethink the way we deliver healthcare: breaking down barriers between hospitals and the community, and working in partnership with patients to deliver joined-up care. To achieve this, they suggest that we need a health service that is funded to meet the demands placed on it by our growing population. This report is the first of a series in the Mission: Health campaign which will be focused on three major themes – working for health, delivering health, and creating health. Email: missionhealth@rcplondon.ac.uk
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CLICK TO READ MORE Transforming Our Justice System
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Mediation Awareness Week UK took place over 8th to 14th October 2016
A new birth injuries compensation scheme has been announced by Health Secretary, Jeremy Hunt
Its aims were to promote, for the public benefit, the awareness of mediation across all aspects of dispute resolution in the UK and internationally. The Patron of Mediation Awareness Week UK is Sir Alan Ward QC, Chairman of the Civil Mediation Council, former High Court judge and former Lord Justice of Appeal. Events included a Medical Mediation Symposium Medical Mediation attempts to resolve conflicts in the medical setting through the use of an impartial third party. This can involve health professionals and families who cannot agree on treatment options for family members, other conflicts between health professionals and patients/families such as communication breakdown and end of life care. Medical Mediation is also effective in helping to resolve complaints about medical care or negligence.
The new Rapid Resolution and Redress scheme, which is out for consultation, would investigate the 500 cases of avoidable harm to babies, during birth, which happen each year in England.
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A press release, on 18 October by the Law Society, suggests that The Department of Health is now planning to fix costs for clinical negligence claims of up to £25,000 This is an amendment following last year's 'pre-
consultation', which suggested fixed fees should be applied on claims up to the value of £250,000.
CLICK TO READ MORE CLICK TO READ MORE A new sepsis toolkit has been launched by the Royal College of General Practitioners (RCGP), in partnership with Health Education England and NHS England.
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According to the Law Society Gazette, the MOJ will publish proposals for Whiplash reform before the end of 2016, despite rumours that the Lord Chancellor, Liz Truss, has dropped George Osborne’s planned reforms.
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Clinical Risk journal have published a Special issue on Patient Consent after Montgomery, including articles on how the landmark Montgomery v Lanarkshire Health Board case in 2015 has impacted on consent in obstetrics, surgery, psychiatry and allied health professionals.
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