A medical report from an independent medical expert is required in all personal injury claims. There are three main reasons for obtaining a medical report:-
- To identify the injuries sustained as a consequence of the accident.
- To consider and recommend any further medical treatment or investigations if there are ongoing symptoms which are attributable to the accident.
- To assist in valuing the claim for compensation
In most accident and injury cases only one medical report is necessary, but in more complex personal injury claims or cases involving serious injury, further medical reports may be necessary from medical experts in other fields of medicine or to deal with related care issues. This ensures that the most complete and accurate picture is available before attempting to value the injury claim. It also minimises the risk of under-settling the claim, which is a common problem where inexperienced or unqualified people attempt to deal with personal injury law.
Under the online road accident claim process the medical expert will be asked whether or not they feel it is necessary to review the Claimant’s medical records before completing the report. This approach was agreed between the Claimant and Defendant’s representative when the online road accident scheme was set up. It was adopted in an effort to speed up the settlement of injury claims and to minimise legal costs.
In all other personal injury claims the medical records will be obtained either directly by the injury solicitor or through a medical agency and sent to the medical expert for review. The medical expert will usually arrange an examination of the Claimant before completing the report. It can often take between four and six weeks for the report to be prepared after the examination has taken place.
Details of nominated medical experts are generally sent by the Claimant’s representative to the Defendant who then have 35 days in which to object to the instruction of any of the nominated experts. If no objections are received by the Claimant’s solicitor within this timescale, they can then proceed to instruct whichever expert is appropriate. It is generally accepted that the expert who is instructed should not be the Claimant’s treating consultant.
The expert’s overwriting duty is to the Court. Their responsibility is to assist the Court in settling the claim in a fair manner. The expert must include a statement in their report that they understand and have complied with this duty. This means that the expert should not have any regard as to which party is instructing him or as to which party is paying his fee.
Either party may obtain expert medical evidence in an accident claim, though generally it is the Claimant’s solicitor who will arrange this in the first insistence. If there are issues arising from the medical report then the Court rules permit either party to put clarifying questions to the medical expert. The medical expert must provide written replies. If the Defendant is still not satisfied with the medical evidence which has been disclosed they may then try to obtain their own medical evidence. Defendants do not have to go through the same nomination process, though they may need the permission of the Court before instructing their own expert. The Court will try to limit the number of experts used in any claim so the Defendant will need to show that there is a good reason for obtaining their own medical evidence. It is more likely that the Court will give permission to the Defendant to obtain their own medical evidence if is it a high value injury claim or there are complex medical issues involved.
Again, when the Defendant’s medical report is disclosed, either party may put clarifying questions to the expert. If there is disagreement between the experts the Court will generally order that the experts prepare a joint statement setting out the points which they both agree upon and those points that are not agreed. It may be necessary for the experts to attend Court to give evidence in person if there remain significant disagreements between them. It will then be for the Court to decide which experts’ evidence it prefers. That is not to say that the Court thinks the one expert’s medical opinion is wrong but simply that one interpretation of the medical issues is preferred over another.
Some personal injury Claimants can be disappointed by the opinions expressed in the medical report when this is obtained. Some Claimants will wish to obtain a new report from another expert. In such cases it is essential that the reasons why the Claimant does not agree with the medical report are identified clearly. It may be appropriate to return to the consultant with this additional information and maybe put clarifying questions to him at this stage before the report is finalised and disclosed to the Defendant.
A Claimant may wish to instruct an alternative expert without disclosing the original report to the Defendant. This is in the hope of obtaining a more favourable report. This is known as “expert shopping”. The civil procedure rules and the Courts do not allow this. The Court of Appeal ruled in the 2011 case of Edwards-Tubb v J D Wetherspoon that the Claimant was not permitted to obtain another report, even before proceedings were issued and served, without first disclosing the original unfavourable report to the Defendant. Only when the original report has been disclosed can an application be made for permission to instruct another expert. The Claimant will need to give good reasons why the original medical report is not agreed. The Court will not give such permission lightly.
We, at Slee Blackwell, take the instruction of experts very seriously and as a result cannot guarantee that we will instruct the expert which is located closest to the Claimant’s home address. What we can assure you is that we will consider the medical evidence carefully and attempt to instruct the most appropriate medical expert who will provide us with a clear well informed and well reasoned report in support of our clients’ claims.