Expert Witness 2018 by The Solicitors Group

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EXPERT WITNESS 2018

Celebrating 14 Years of Quality Legal Exhibitions & Training

A. Logan Pain Management Ltd. Consultant Pain Management

Dr Andrew St Clair Logan FFMPRCA Expert in assessment of long term pain following injury with regards to causation, prognosis and further treatment. •

Consultations available

Spire Cheshire Hospital (Warrington/Manchester)

Please contact at: Nuffieldhealth The Grosvenor Nuffield Hospital, Wrexham Road Chester CH4 7QP

•

Spire Murrayfield Hospital (Wirrral)

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Chester Wellness Centre

•

Nuffield Health (Chester)

Email: painconsultant@aol.com Direct telephone: 07791681278 1

EXPERTS IN

MENTAL HEALTH

ExpertMinds is a specialist mental health care and expert witness service service that aims to deliver the highest quality treatment, with client satisfaction at the heart of everything we do. At ExpertMinds, we refuse to compromise on our care and with a bespoke package of care provided to every one of our clients, endeavour to ensure that they leave our service feeling that we have truly made a positive difference.

ExpertMinds The Colony Wilmslow Altrincham Road Wilmslow SK9 4LY

Tel: 0161 327 0766 Email: info@expertminds.co.uk

Our experts cover many aspects of mental health: General adult psychiatry Child and Adolescent Mental Health Personal Injury Criminal law Immigration and Asylum matters Capacity, DoLS, Court of Protection Testamentary Capacity Prison Mental Health Pre-sentence reports Offending / forensic matters Risk Management S37/41 Fitness to Plead Fitness to Stand Trial

Contents...

Expert Witnesses: Understanding Your Duty to the Civil Court................................................ 8

What’s the role of the expert witness?...................................................................................... 8 To what extent must the expert witness follow the court rules?............................................. 9

The Challenges for Expert Witness: 2017 Survey Results.......................................................................................................... 26

Litigants in Person......................................................................................................................... 26 The money factor......................................................................................................................... 27 The wider issues............................................................................................................................ 27 Technology issues......................................................................................................................... 28 Rates of Pay.................................................................................................................................. 28

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London Pain Centre

Consultant in Pain Medicine Clinical Medical Consultant in Pain Management at Guy’s & St Thomas Hospital London, England from 1996 to date. Author editor Pain Clinic Manuals edition 1 and 2 (BMA prize for Ed 2) Author of Intravenous Anaesthesia. Reviewer: EJA, Neuromodulation. Regular teacher/ demonstrator practical procedure courses at GSST & elsewhere. Been on the Television (BBC1): - City hospital demonstration PRF for Cervical DRG’s. Past Treasurer to NSUKI (Neuromodulation Society of UK and Ireland). zICO registered for data protection Regularly appraised and last revalidated for GMC October 2016.

Medico-Legal

LONDON PAIN CENTRE

I initially attended courses run by Professional Solutions, 118 the Strand, Symposia by Lyons Davison, Lynden alexander.

I have spent a week undertaking the Mediation course at 118 the Strand, and passed the exam. Lectured to PI lawyers at British library on when to instruct a pain medicine expert, other groups of lawyers on CRPS, Invited speaker Cambridge Medico-legal forum. Given oral evidence in district, county and high courts and have given oral evidence six times in the last three years. Instructed by claimant and defendant with no preference. Very rarely instructed as a single joint expert. Practice mostly personal injury but increasingly I am instructed on negligence cases (most frequently to comment on causation, condition and prognosis with recommendations for treatment – very rarely for liability). I have been preparing medico-legal reports since 1991. I see on average two new claimants a week, which allows time for all the other medico-legal requests such as joint statements, conferences with counsel, answers to part 35 questions, review of surveillance and the preparation of addenda when further documents are made available for review.

CV Download

n.padfield@btconnect.com 020 7349 9717

www.drnicholaspadfield.com 4

the

SOLICITORS group Independent Architect with RIBA Chartered Practice status and Member of The Chartered Institute of Arbitrators, with extensive Expert Witness experience, both as a Party Expert and as a Single Joint Expert, in the following areas:

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Architect / Client / Builder Disputes Party Wall Disputes Town Planning Disputes

Building Defects arising from New Build, Conversions, Refurbishments, Alterations and Extensions, particularly in the Domestic Sector

Not yet registered or referred by a

Architect Professional Negligence and Fee Disputes

Proficient in the analysis of evidence and the preparation of Reports. Public Inquiry and High Court experience. Registered with UK Register of Expert Witnesses, Waterlow Legal, X-Pro and Expert Witness. UK wide coverage

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Signing up couldn’t be easier... Visit the website: www.thesolicitorsgroup.co.uk Select ‘Publications’ from the top navigation Select ‘Charities Publication’

William Bates, BSc (Hons), Dip. Arch., RIBA, ACIArb Oaklands, High Street, Horam, Heathfield, East Sussex TN21 0EJ email enquiries to: will@williambates.co.uk

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2018

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Need an Expert in Psychiatry or Psychology? We are a well established company, with a panel of reputable Experts selected for their experience in the field of mental health. Expert in Mind Ltd has a strong working relationship with all panel members, offering a one stop interface between instructing party and Expert. Our experience in this sector, and knowledge of our Experts enables us to advise you on the best Expert for you. We can promptly provide their timescales and fee estimates. Each Expert is assigned a personal assistant meaning that you have one case manager with whom you can discuss any aspect of your case from start to finish. We are not a call centre, nor an agency, we are here to ensure a seamless process in the provision of Expert mental health assessments and there are no hidden extras. Our psychiatrists and psychologists operate in London and the South East, having considerable experience in providing medico-legal reports in a range of areas, including: • • • • • • •

Clinical Negligence Personal Injury Family Law Risk Assessment Employment Tribunals Capacity Assessments Immigration

Tel: 01424 444130 Fax: 01424 234625 General Email: office@expertinmind.co.uk Web: www.expertinmind.co.uk 7

Section 1 Expert Witnesses: Understanding Your Duty to the Civil Court

The evidence of an expert witness can make or break a case, so the pressure on an expert can be intense at times. But for the opportunity of giving expert evidence in a court of law, expert witnesses must understand and comply with the rules of the court (the Civil Procedure Rules). It is vital to understand that expert witnesses need to be more than experienced and knowledgeable in their field of expertise. They need also to know the extent of their duties to the court, while also complying with their duty to the client, because there can be a potential conflict there.

Whatâ&#x20AC;&#x2122;s the role of the expert witness? Expert witnesses play a crucial role in litigation, their primary responsibility being to assist the court to reach a final ruling. They do this by providing expert evidence, analysis and opinions on matters which are outside the expertise of the judge and other witnesses. However, they must only comment on matters within their expertise. The instructing solicitor should make very clear to the expert the scope of what their expert report should cover, clearly identifying the relevant issues. They may or may not be required to give oral evidence in court, depending on whether the case goes to a final hearing. The expert witness must sign both a Statement of Truth and a Declaration of Awareness of the Civil Procedure Rules, Practice Directions and Protocol in their expert report, so they must be familiar with the court rules. If you are to act as an expert witness, your instructing solicitor will be able to give you any advice and information that will help you discharge your legal responsibilities confidently and effectively.

To what extent must the expert witness follow the court rules? The duties of an expert witness are set out in Part 35 of the Civil Procedure Rules (CPR), and when instructed, the solicitor should explain these duties to the expert. The expert’s overriding duty is to the court, not the parties, and that expert witnesses must be independent. If the court has any doubts as to an expert’s independence, their evidence can be rejected. The CPR require that the expert must consider all material facts, and comment where there is a range of opinion. A problem that faces experts who frequently give expert evidence in court is the regular updates to the CPR (more than 60 amendments have been made since 1999). This can make it difficult for expert witnesses to comply. In November 2017, for instance, new amendments came into force with welcome changes - including that expert evidence can now be presented on an issue by issue basis, and generally providing more flexibility. There are worthwhile courses available for expert witnesses to enable them to maintain compliance with the CPR and minimise the risk of breaching them. A recent case1 has also laid bare the risks that expert witnesses must be alert to in relation to their broad duty to the Court, and the extent of their duty. Harris v Johnson was a clinical negligence case following injury caused as a result of the use by a consultant neurosurgeon of a surgical instrument which penetrated the dura (the membrane protecting the spinal cord) and came into contact with – and damaged - the extreme right-hand side of the cord. At issue was whether the surgery had been incompetently performed, or whether the spinal cord injury was just a very unfortunate accident with no negligence involved. The neurosurgeon was found not to have been in breach of his duty and the defendant successfully applied for summary judgment at the beginning of the trial. The expert evidence was significant, and concerned (in part) impact of the duties of an expert on a case. The allegations against the surgeon could not succeed on the basis of the expert neurosurgeon’s evidence, including the experts’ agreed position in their joint statement that he had reached at least the minimum standard required. Crucially, the judge found that the expert’s position was illogical, and said: “This stubborn adherence to a position which was logically indefensible was one of a number of factors which substantially undermined [his] credibility.”

Furthermore, the expertâ&#x20AC;&#x2122;s overall analysis of the case was criticised by not distinguishing between two instruments and had proceeded on the misassumption that the surgeon had used a sharp retractor and not a blunt dissector. The court found that this was a fundamental factual error and the expert had not read the material to an appropriate degree before the trial. To make the situation worse, the issue of the misassumption had been raised with the expert during the expertsâ&#x20AC;&#x2122; discussions but had not acted on this. This was a clear breach of his duty. Furthermore, the expert had been similarly criticised by judges in earlier cases â&#x20AC;&#x201C; so this was not an isolated error on the part of the expert. The expert also attracted general criticism for his evidence given to the court. The judge referred to his general intransigence, sloppy attention to detail, and his failure to abide by his duties as an independent expert. These left the judge with no confidence in him; the court could not rely on his evidence - and the claimant lost her case. The ruling is an important reminder that experts must not rest on their laurels. They must understand the extent of their duties to the court throughout. In preparing their reports, they need to give full consideration to their initial instructions, the pleadings, any witness statements, and the evidence as a whole - no undue assumptions should be made. The final report and ensuing evidence must take into account all other evidence in order for the expert to fulfil its overriding duty to the court. Then, in giving oral evidence to the court, the expert witness must remain consistent and have a keen attention to the detail in the case. The majority of expert witnesses are undoubtedly conscientious in their work before the courts. There will be lessons to learn along the way but, unfortunately for the claimant in the Harris case, her own expert witness was unwillingly to learn from the judicial criticism he attracted before this case and failed to comply with his overriding duty to the court.

1Harris v Johnson [2016] EWHC 3193 (QB

Dr Joshua Adedokun Dr Joshua Adedokun Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA FCARCSI,FRCA, FRCA,FFPMRCA FFPMRCA FCARCSI, • Chronic Pain Expert • Personal Injury Chronic PainExpert Expert Chronic • ClinicalPain Negligence

Listed on the Register Adedokun extensive Listed on the UKUK Register of of Dr Dr Adedokun has has extensive Dr Adedokun hasinextensive clinicalExpert Witnesses, Listed onanthe UKexpert, Register of Expert APIL clinical experience the Expert Witnesses, an APIL expert, clinical experience in the experience inofthe management of various Witnesses, anExpert APIL expert, Member of Member of Society of management various Chronic Member of Society of Expert management of various Chronic Chronic Painincluding Syndromes Society ofWitness Expert Witnesses and Expert Witnesses Expert Witness Syndromes including including Witnesses andand Expert PainPain Syndromes Institute. persistent neck, back, neuropathic persistent neck, back, neuropathic or Witness Institute. persistent neck, back, neuropathic Institute. or Complex Regional PainSyndrome Complex Regional Pain or Complex Regional Pain FDS amends:Page template.qxd 17/02/2011 10:57 Page 19 Adedokun accepts instructions Dr Dr Adedokun instructions Syndrome (CRPS) especially (CRPS) especially following personal Draccepts Adedokun accepts Syndrome (CRPS) especially from Claimants, Defendants and instructions FDS amends:Page FDS amends:Page template.qxd template.qxd 17/02/2011 17/02/2011 10:57 Page 10:57 19 Page 19 FDS amends:Page template.qxd 17/02/2011 from Claimants, Defendants and following personal and occupational injuries. from Claimants, Defendants and 10:57 Page 19 following personal andand as a Single Joint Expert. He covers as a Single Joint Expert. covers occupational injuries. as aLiverpool, Single He Joint Expert. He covers occupational injuries. He He alsoalso Manchester, Leeds, Manchester, Liverpool, Leeds, has wide experience in Medical has wideinexperience Manchester, Liverpool, Leeds, has He widealso experience Medical in Medical Birmingham and London. Birmingham and London. Negligence claims. Negligence claims. Birmingham and London. Negligence claims. expertpainreports@gmail.com Other locations Domiciliary Other locations andand Domiciliary visits can be arranged. www.expertpainreports.co.uk visits can be Other arranged. locations and Domiciliary visits

M : 0771 196 3200

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Spire Manchester Hospital 170 Barlow Moor Road Manchester M20 2AF

: 01625523355 523355 TT: 01625 : 07885913912 913912 MM: 07885 MR Kim Hakin

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Mr Kim Hakin is a Consultant Ophthalmic Surgeon working in the NHS and in private practice. Available for medico-legal consultations in London and Taunton.

BSc CChem MRSC RFP Maurice Rodé MFSSoc BSc CChem MRSC

Maurice Maurice Rodé Rodé BSc CChem MRSC RFP BSc CChem MRSC MFSSoc Maurice Rodé BSc CChem MRSC BSc CChem RFP MRSC RFP BSc CChem MRSC BSc CChem MFSSoc MRSC MFSSoc BSc CChem MRSC MCSFS BSc CChem MRSC RFP BSc CChem MRSC MFSSoc

Michael Handy Michael Handy Michael Handy Michael MSc CChem MRSC RFP Handy MSc CChem MRSC MFSSoc Michael Handy

His special interests include the management of cataracts, ocular trauma, eyelid and lacrimal surgery, including cosmetic eyelid surgery, facial aesthetic injection and laser treatments.

MSc CChem MRSC MCSFS MSc CChem MSc MRSC CChem RFP MRSC RFP MSc CChem MSc MRSC CChem MFSSoc MRSC MFSSoc MSc CChem MRSC MCSFS MSc CChem MRSC RFP MSc CChem MRSC MFSSoc MSc CChem MRSC RFP MSc CChem MRSC MFSSoc

Mr Hakin prepares approximately 200 reports a year, with a Claimant:Defendant ratio of around 50:50. He is able to provide an appointment for consultation in London or Taunton within 2-3 weeks of request, with a report turnaround time of less than two weeks.

Registered Forensic Practitioners Extensively Equipped Laboratory Extensively Equipped Laboratory in Central London 4in Chiltern Court, 37 St Peter’s Avenue 186 Temple Chambers, Temple Central London 186 Temple Chambers, Temple Avenue, London EC4Y 0DB Avenue, 186 Temple Chambers, Temple Avenue, Caversham, Reading RG4 7DH 186 Temple 186 Chambers, Temple Chambers, Temple Avenue, London EC4Y 0DB 186 Temple Chambers, Temple Avenue, London EC4Y 0DB Avenue, Tel 020 7583 9962 EC4Y Fax 020 9963 London 0DB7583 Temple London EC4Y London 0DB EC4Y 0DB7583 9963 Tel 9962 Fax 020 9963 London EC4Y 0DB7583 FORENSIC HANDWRITING Tel 020 7583 9962 Fax 020 DX 271 LDE Tel 020 020 7583 7583 9962 Fax 020 7583 9963 DX 271 LDE TelEmail 020 7583 9962 020 7583 9963 fds.limited@btconnect.com DX 271Fax LDE HANDWRITING &FORENSIC DOCUMENT EXAMINERS Email fds.limited@btconnect.com DX 271 LDE www fds-ltd.co.uk Email fds.limited@btconnect.com www Email fds.limited@btconnect.com www fds-ltd.co.uk fds-ltd.co.uk & DOCUMENT EXAMINERS www.kimhakin.com www fds-ltd.co.uk

Mr Hakin has an Expert Witness certificate from Cardiff University / Bond Solon Solicitors and he is an expert adviser to Nuffield Hospitals, and formerly to the Healthcare Commission.

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Registered Forensic Practitioners Registered Registered Forensic Practitioners Practitioners Extensively EquippedForensic Laboratory Registered Forensic Practitioners Extensively Equipped Laboratory Equipped Laboratory Extensively Equipped Laboratory inExtensively Central London Extensively Extensively Equipped Equipped Laboratory Laboratory in Central London Extensively Equipped Laboratory in Central London in Central London in inLondon Central London in Central Central London FORENSIC HANDWRITING HANDWRITING FORENSIC HANDWRITING FORENSIC HANDWRITING &FORENSIC DOCUMENT EXAMINERS FORENSIC HANDWRITING FORENSIC HANDWRITING & DOCUMENT EXAMINERS FORENSIC HANDWRITING & DOCUMENT EXAMINERS & DOCUMENT EXAMINERS & DOCUMENT EXAMINERS & DOCUMENT EXAMINERS 186 Chambers,EXAMINERS Temple Avenue, & Temple DOCUMENT

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Dr Khalid Mahmood. MBChB, MRCP (UK) Consultant Cardiologist & General Physician

I have been a full-time NHS Consultant Cardiologist at Solihull Hospital (Heart of England NHS trust) since 2010. I am on the Specialist Register for Cardiology & General Internal Medicine. Expertise includes complications from cardiac procedures, atrial fibrillation, syncope, cardiac arrest and other arrhythmias, chest pain and myocardial infarction, cardiac risk assessment, heart failure and cardiomyopathy, hypertension, stroke, pulmonary embolism, cardiac trauma and insurance claims, thrombosis and anticoagulation. I provide expert reports in a wide range of cases with an emphasis on clinical negligence, personal injury, causation, condition and prognosis.

07795460224

I have attended formal training in the provision of expert witness reports and oral evidence under cross examination. I accept instructions from counsel acting for claimants as well as counsel representing defendants. I accept instructions in civil and criminal cases throughout the UK and can provide screening reports or offer telephone advice on a case, with a report in 2-4 weeks.

Consulting rooms at: Spire Parkway Hospital, Solihull.

khalidmahmood99@hotmail.com 14

Mr Stuart Hislop Consultant Oral & Maxillofacial Surgeon MBCHB, BDS, FRCS Ed, FFST Ed, FDSRCS Ed, FDRCPS Qualified in dentistry in 1978 and medicine in 1987 Mr. Hislop has a full training in Oral and Maxillofacial surgery. He has experience in all aspects of the specialty but his main interests are head and neck oncology including skin cancer as well as reconstructive surgery. He also has an interest in facial trauma both hard and soft tissue.

• • • • •

20 years experience. Works in Ayrshire and Glasgow Experienced medico legal expert Also carries out routine oral surgery Will work for both plaintiff and defendant

Tel: 01563 827488

Email: Stuart.Hislop@aaaht.scot.nhs.uk 15

Professor Tipton is a Specialist in Prosthodontics and Professor of Restorative and Cosmetic Dentistry and is one of the UK’s leading dental expert witnesses. Regularly featured in the top 20 most influential people in Dentistry in the UK (Dentistry Magazine), he and his team of Legal Experts at T Clinic have extensive experience dealing with a range of negligence and personal injury cases. He has assembled a team of leading clinicians and expert witnesses who work at T Clinic nationally in all of the various fields of Dentistry – from leading Professors and Specialists to experienced private general practitioners. We know how important it is to have the right expert for each case therefore we will assist you in choosing the most suitable expert prior to commencement. All areas of Dentistry are covered including General Dentistry, NHS and Private, Cosmetic and Restorative Dentistry, Implantology, Oral Surgery, Orthodontics, Periodontics and Endodontics. To secure the services of one of the legal experts at T Clinic, please call or email today. layout.indd 1

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• To deliver expert witness advice

as leaders in the field of Dentistry in a timely, professional and concise manner. • All clients’ appointments occur within two weeks of instruction with a further two weeks needed for each of T Clinic’s experts’ to produce their detailed report. • To issue concise, accurate and clear reports to assist the courts with their decisions. • To ensure communication is paramount throughout the process. • We offer some of the best rates in the UK for dento-legal reports, often half the price of other experts.

06/06/2017 16:39

06/06/2017 16:39 06/06/2017 16:39

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uk.linkedin.com/pub/richard-scott-watson/34/4bb/531/ Expert Witness in Orthopaedic Trauma. Disability analyst. APIL Expert.MedCo Accredited. MEOL Approved Expert. Injury reports and Employment Tribunal reports (Equalities Act.) Waiting list 4-6 weeks. Urgent reports undertaken.Reporting since 1990. Over 21,000 reports. Cardiff University Expert Witness Certificate 2014. Fully trained in CPR, Court appearance (2 per year) and report writing. Low velocity impact traffic accident cases accepted. Winner: FORENSIC INSIDER Orthopaedic Award 2016; Lawyer Monthly Magazine Orthopaedic Expert Witness of the Year 2016 & 2017; Forensic and Expert Witness E Magazine Medico Legal Award 2014/15 and 2016/17; Forensic and Expert Witness E Magazine Lifetime Achievement Award receiver for Trauma & Orthopaedics.

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Rodney Peyton 19

Mrs Robyn Webber MD FRCSEd(Urol) I provide a service in general urology, with a wide range of clinical interests including benign and malignant prostatic disease, bladder malignancy, urinary tract infection, and the investigation of haematuria. In addition, I have sub-specialty interests in the management of stone disease, and reversal of vasectomy. I have had specific sub-specialty training in both of these areas, I was trained in the management of stone disease at the Scottish Lithotriptor Centre in Edinburgh, and have trained in the technique of microsurgical vasectomy reversal.

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The “unhappy” total knee replacement –

Doctor, my knee is still not right!!

One of the commonest reasons for litigation after Total knee replacement (TKR) is chronic pain or dissatisfaction. TKR (total knee arthroplasty- TKA) is an effective procedure to reduce pain and improve function in the majority of patients who suffer from painful end stage knee arthritis. It is increasingly being performed even in younger patients in their forties and fifties. However it is not considered universally successful, especially when patient reported outcome measures are considered. Dissatisfied patients demonstrate minimal further improvement or even worsening of outcome scores in some studies. Many continue to be unhappy with their replaced knee even without suffering from a major complication and after technically well-performed surgery. 15-30% of patients remain dissatisfied with their knee arthroplasty to varying degrees. This rate is reported to be even higher with lower grades of osteoarthritis and in younger patients who reported more knee-related dysfunction despite higher levels of self-reported activity post-operatively. Surgeons often have to bear the brunt of managing an unhappy patient. This can damage the doctor-patient relationship, lead to litigation, and can have adverse implications in health economies in which reimbursement is linked to clinical outcome and patient satisfaction. Patients typically expect pain relief, improved walking ability, return to sports, and improvement in psychological well-being after TKR. But many are overly optimistic and have unrealistic expectations of the likely pain relief, length of recovery times, and the inability of this procedure to restore to normal health status. They report symptoms such discomfort or pain (commonest reason for unhappiness), stiffness (loss of movement), reduced function, problems with walking, and reduced strength of muscles or speed of walking. When these parameters are measured objectively, it is found that they have all usually improved compared to how they were before surgery. There is often no technical problem with their arthroplasty. Yet they do not return to the levels found in healthy patients. This leads to a mismatch between expectations of the patient and the outcomes that can be realistically achieved with surgery. Unfulfilled expectations are a major cause of patient dissatisfaction. This is directly related to the patients’ quality of life, which they deem insufficient. However it must be appreciated that quality of life depends on many physical, behavioural, social and psychological factors that are not taken into account. Surgeons need to understand the reasons for dissatisfaction to minimize the number of unhappy patients following surgery. It is now recognised that both physical and psychological factors (such as pain catastrophizing, depression, anxiety and stress) contribute to dissatisfaction. Some of the risk factors that correlate with dissatisfaction include younger patients under 55 years who undergo TKA, the previously multiply operated knee, high BMI (obesity), social and demographic factors (education levels, alcohol, smoking), back pain, and also medical co-morbidities (cardiovascular, gastrointestinal, pulmonary, metabolic, renal, psychiatric - the Charlson co-morbidity index). Identification of these factors before surgery can may help not only in in planning focused interventions to address some of these problems, but also in setting the expectations of patients before surgery. Managing expectations and a thorough counselling and consenting process goes a long way in reducing dissatisfaction after surgery. A detailed explanation of the risks and complications as well as incomplete pain relief is important. Patient selection is the key. Caution has to be exercised in offering TKA in patients who do not have end stage arthritis or who are still functioning at a high level even with presence of radiological signs of arthritis. Patients whose pain levels are disproportionate to the clinical findings and x-rays signs need to be carefully identified, and counselled. A robust trial of conservative management including analgesia, physiotherapy, and functional rehabilitation is essential before considering TKA. Health improvement measures such as weight optimization, cessation of smoking, correction of medical comorbidities should be considered before offering surgery. There is no substitute to a good pre-operative patient education programme. Some authors recommend psychological assessment in patients who have these risk factors before surgery. It is important that patients fully understand the implications of TKA surgery and that it cannot restore them to the levels of a normal healthy person, and in fact in some cases can make them worse than they were. When doubt exists or where indications for surgery are not clear, a low threshold should be adopted to obtain a second opinion from an experienced colleague. Such measures can go a long way in improving patient satisfaction and reduce the litigation relating to primary TKAs.

Mr Nikhil Shah Consultant Trauma and Orthopaedic Surgeon, Wrightington Hospital 21

Mr Nikhil Shah

FRCS(Tr & Orth) FRCS (Glasgow), MCh(orth) Liverpool, MS(orth), DNB(orth) MBBS

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Mr Shah provides personal injury reports in his area of regular practice including Traffic accidents, soft tissue injuries, musculo-ligamentous trauma, common fractures around the upper limb, lower limb long bone and joint fractures. His clinical negligence practice deals with complications after hip and knee replacement and revision surgery as well as pelvic-acetabular fractures. Claimant: defendant : SJE 40:40:10.

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Psychological, orthopaedic assessments & expert witness services throughout the UK Hugh Koch Associates, established in 1993, provides a comprehensive and independent psychological and orthopaedic assessments service plus access to a psychological treatment service, throughout the UK. It’s expert witness services are provided predominantly within the context of: • Personal Injury (Psychological and Orthopaedic) • Employment Injury, Stress & Chronic Absence Management • Expert Witness Psychologists & Services • Medical Negligence • Neuropsychology • Chronic Pain

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How to choose the best expert witness for your case

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An expert can make or break a case so it is essential to choose wisely. With years of academia and an extensive experience of clinical practice behind them, an expert is often best placed to fully understand and diagnose specific motivations or behavioural problems of the individuals essential to your case. A expert’s professional status is recognised by the Court, meaning that they can also provide their independent opinion. But – not all experts are created equal! As a boutique provider of both psychiatric and psychological expert witnesses, we want to share some useful tips on how to find the best professional for your case.

KE MENTAL H & WELLBEING ES

Are you instructing a true ‘expert’?

It surprises many to know that ‘Psychologist’ is not a title protected by UK law; that means technically anyone can ExpertMinds is a specialist menta claim to be a psychologist! Nevertheless, there are a number of titles which are protected and easily verified. care and wellbeing service service Always ensure that your expert is registered with Health and Care Professionals Council (HCPC) under one or more of the following categories: that aims to deliver the highest qu

treatment, with client satisfaction heart of everything we do.

• Practitioner psychologist • Clinical psychologist • Forensic psychologist • Counselling psychologist At ExpertMinds, we refuse to compromis • Health psychologist • Occupational psychologist • Sport and exercise psychologist care and with a bespoke package of care to every one of our clients, endeavour to that they leave our service feeling that w An expert’s CV, should be succinct rather than rambling, and fairly jargon-free. You should expect to see a full difference. truly made a positive record of qualifications and membership of professional bodies such as British Psychology Society or The Royal College of Psychiatrists (Section 12(2) approval). It is not unreasonable to ask for anonymised sample reports to be provided or for recommendations from other legal professionals who have utilised their services. Also, ask what time they spend on expert witness work? Be cautious about experts with limited links to their field, especially if retired and ask about training undertaken with recognised training providers like Bond Solon.

ExpertMinds

Tel: 0161 826 281

is a specialist mental health The Colony Wilmslow Email: info@expe Altrincham Road Be clear about the type of expert you need lbeing service service Wilmslow SK9 4LY When researching your expert, be specific about what knowledge your case requires. Within the generic headings deliver the highest quality of criminal, family and civil cases, there are further sub-specialties. It may be that you require a child psychologist clinical experienceat centres primarily on ages 3-17. Or, you may need an adult psychiatrist whose expertise ith client whose satisfaction the is in sexual offending or addiction, for example. ything we do. Finding the right specialism of an expert witness can be more complex than first appears. This is particularly the case in family law where issues are often multi-layered with psychosocial problems that have perhaps gone undiagnosed or untreated. It may be that an evaluation has been called for by the court in a criminal or civil case. Additionally, it may be that the solicitor feels that performing one could be beneficial to the case by highlighting behavioural problems that up to now have not been recognised.

s, we refuse to compromise on our bespoke package of care provided our clients,Talk endeavour to ensure to us! our serviceExpert feeling that wegroup have Minds are a small of industry leading and courtroom skilled psychologists and psychiatrists. We pride ourselves, not only on the quality of our work, but our integrity and personal service. We understand ositive difference. that you are busy and are happy to transparently advise you so you can far more efficiently choose the most appropriate psychologist for your case. We also love to talk on the telephone, or in person, with instructing solicitors and recommend this as the best possible way of assessing the communication skills of any potential expert.

Section 2 The Challenges for Expert Witness: 2017 Survey Results

A major annual survey1 of expert witnesses has highlighted many of the challenges being faced by expert witnesses in civil proceedings today. The online Times/Bond Solon Annual Expert Witness Survey 2017 involved surveying more than 800 expert witnesses for their response on issues ranging from technology and litigants in person, to the fees they charge. The results are revealing. Perhaps unsurprisingly, the survey shows that personal injury remains a major area of work for expert witnesses; and 80% of the medical experts surveyed act as an expert in personal injury cases. While 68% of the expert respondents act as an expert in personal injury cases, only 13% said that they are mainly instructed in family cases. This, says Mark Solon of Bond Solon, probably reflects the sharp decline in the use of experts in family court cases since the introduction of the new Family Procedure Rules in January 2013. A significant finding of the survey is that expert witnesses are increasingly unwilling to provide expert evidence for a litigant in person (LIP). Litigants in Person There has been a steep rise in the number of LIPs in recent years, particularly in civil and family cases, following the sweeping cuts in legal aid in the majority of civil cases. Solon highlights a significant problem of acting as an expert witness for an LIP: â&#x20AC;&#x153;Expert witnesses are more and more reluctant to accept cases from litigants in person partly due to poor instructions from litigants in person and low fees.â&#x20AC;? An expert who accepts instructions from a LIP could, if instructions are not absolutely clear as to the issues in dispute, the evidence available, and what is required of them, runs the risk of breaching their overriding duty to the court.

This risk is being borne out in practice: the survey found that two thirds of expert witnesses in personal injury claims will not accept instructions from a litigant in person – and more than three quarters of medical experts would not accept instructions from a LIP. The money factor Over a third of experts who can work in legal aid cases say they would refuse to do so, and 69% said they would not continue working in legal aid cases if expert witness fees were further reduced. Solon comments that given that expert work is a secondary source of income for most experts, if their fees are too low, “experts have to decide whether or not the case is worth their time and worth coping with the stress of respecting the tight deadlines set by the Court”. The challenges are even greater in the small claims court: the Government is pressing ahead with plans to implement further reforms to the PI market, with a higher small claims limit of £5,000 for RTA PI claims (and £2000 for other PI claims). The problem is – acting as an expert witness in a small claims PI case is just not worth the money, and experts are continually having to ask themselves if it’s cost effective to accept instructions. The wider issues An expert witness who is instructed by solicitors, only to later find the law firm has gone into administration, may not get paid. A surprising number of expert witnesses (38%) say they have been affected by a law firm or other instructing party going into administration. Solon cites some of the factors at play: “It’s a challenging time for the legal market. Competition between law firms is high. Law firm mergers are now commonplace placing great pressure on smaller firms with some of them going into administration.” He warns that as more law firms, currently struggling with debts and unbilled work, may go into administration, experts should conduct some due diligence before accepting work. What do expert witnesses say about their counterparts? Worryingly, 75% of the experts surveyed say they have come across poor quality or unqualified expert witnesses, suggesting that there are too many expert witnesses who do not understand the nature of their role or their duties to the court – or, as Solon observes, have not been properly trained in the skills needed to act as an expert witness. 27

An expert witness must never be seen to be a ‘hired gun’, yet 46% of the experts indicated in the survey that they have come across an expert that they consider to be a ‘hired gun’. Furthermore, 30% say that in the preceding 12 months they have been asked or felt pressurised to change their report by an instructing party in a way that damages their impartiality. Acting as an expert witness is usually hugely rewarding but can be demanding and stressful. Half of the expert respondents admitted that their expert witness work made them stressed. This undoubtedly reflects a number of factors, including the tighter deadlines now imposed by the courts for the filing of expert reports, and maintaining a balance between their expert witness work and their other commitments. Technology issues The civil courts in England and Wales have not yet made much of an inroad into becoming digitalised, but a civil online court is potentially on the horizon following Lord Justice Briggs’ Civil Courts Structure Review (2016). So how do expert witnesses view the use of IT in the courts? The survey shows that more than 65% do not believe that the increased use of IT in courts will lead to the decline, or the end, of expert witnesses giving live evidence in court. However, more than 60% of experts don’t think giving evidence via video-link is as effective as giving evidence in court, primarily because body language and other non-verbal communication would be missed in video links. Direct human contact and being able to see and observe body language, reactions, and so on, are important factors for expert witnesses in court. Rates of Pay The experts surveyed were also asked about their pay rates, and the results reveal a wide range of hourly rates charged by experts. The Survey Report includes a helpful Appendix setting out in detail what experts across the different disciplines – and experts within the areas of expertise in those disciplines) charge per hour for a report, and for the court. Read the Survey in full here: www.bondsolon.com/media/169301/the-times-bond-solon-annual-expert-witnesssurvey-report-2017.pdf

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Dovehouse Psychology Expert Witness Services Dr Sharna Lewis BSc Hons, MSc, DClinPsy, CPsychol Chartered Clinical Psychologist and Expert Witness (Midlands Area). I have considerable experience of conducting psycho-legal reports for Civil and Criminal Court in matters of personal injury, clinical negligence, mental capacity, fitness to plead/stand trial, cognitive functioning/learning disabilities, personality disorders and mental health. I am registered with the BPS and HCPC.

The Role of the Psychologist in Assessing Fitness to Plead and Stand Trial The law on unfitness to plead is concerned with whether or not an accused is able to stand trial and, if not, the procedure that should be used to deal with that accused. If at any time during the Court process the defendant’s competency to stand trial is questioned a full and detailed assessment should be sought. An example would be a defendant who as a result of very low intellectual ability is unable to follow the process of his or her trial. In England and Wales, the test known as the Pritchard test is applied by the courts when deciding whether a defendant is unfit to plead, however the test is outdated and inconsistently applied. Following a consultation paper in 2010 and an issues paper in 2014, on 13 January 2016 the Law Commission published its report on unfitness to plead. The Law Commission proposed that the new test should centre upon the defendant’s decision making capacity and capacity for effective participation in their trial. This brings the new test in line with modern Court proceedings and the test for capacity in civil proceedings which focuses on decision making abilities (Mental Capacity Act 2005). Up until recently the determination of a defendant’s lack of capacity relied on the evidence of two or more registered medical practitioners in general such practitioners tended to be psychiatrists. The new legislation has recognised that other professionals are suited for this role. In particular psychologists are routinely involved in assessing, formulating and treating mood and cognitive disturbances and consideration of the assistance required for defendants to participate effectively in the trial process is very much within their expertise. Consequently, the Law Commission has stipulated that one of the experts must be a registered medical practitioner duly approved under section 12 of the Mental Health Act and the second expert can be either a registered medical practitioner, registered psychologist or an individual having a qualification appearing on a list of appropriate disciplines approved by the Department of Health. A psychological assessment will usually include a detailed evaluation of the defendant’s mental health, cognitive functioning, verbal reasoning and comprehension skills, attention and concentration, short term memory, decision making abilities, suggestibility and any other relevant psychological factors. This information will be used in order to form an opinion about whether the defendant is deemed to be fit or unfit to plead and/or stand trial but more importantly the expert can make recommendations to the Court which will allow a vulnerable defendant to fully participate in the proceedings. At the heart of the Law Commissions’ recommendations is the belief that there should be a full trial wherever possible, this is because only such trials engage all the fair trial processes and guarantees for those involved. A departure from a full trial should be a last resort that is only taken when it is in the best interests of the defendant. In order to fulfil this criteria reasonable adjustments to the criminal process should be made. info@dovehousepsychology.com

07716846488 32