Hugh Koch, Paul Elson and Ron Bracey of Hugh Koch Associates, Cheltenham, look at the ways in which you can get the most out of your experts and their evidence. Within the context the of personal injury litigation, the meeting of minds between lawyers and clinicians (and other experts) requires more than lawyers knowing the law and clinicians knowing their clinical practice. Both must be business-minded in the way they handle their professional interaction. This article clarifies several of the key expert-oriented issues that the lawyer deals with to ensure they can maximise the quality expert service they receive. It covers effectiveness and professional quality, customer responsiveness, interview process, report content (including range of opinion), interpretation of ‘other’ medical evidence, opinion on reliability, employability, and the joint opinion process.
The decision to instruct an expert in one particular field can rely on several factors: effectiveness and professional quality, efficiency (administration, waiting time for appointment and report) and general customer service. Effectiveness is typically judged by their professional qualifications, past experience of an experts input to litigation and, their professional track-record as reflected in their C.V including relevant publications. Different weighting is given to effectiveness/outcome versus efficiency (time) factors depending on multi-track/fast track considerations. Increasingly the process of preparing a medico-legal report, quite rightly comes under scrutiny.
Variables such as pre-interview contact with claimant, prompt appointment start, expert manner and courtesy and general ease of process are crucial variables in ensuring the smooth operation of obtaining an expert opinion that the claimant will understand and, in general terms, accept. Once obtained, an expert report will be assessed on its content and whether:
- Questions raised on instruction have been answered;
- Key medico-legal factors such as causation, diagnosis, prognosis and treatment have been addressed as appropriate;
- A range of opinion has been provided.
This latter variable has been of crucial importance and emphasised since the introduction of the CPR rules in 1999. In many fields of expert opinion, an assessment based on interviewing the claimant and reviewing other medical evidence both clinical and medico-legal must take into account alternative views. This acknowledges that data, evidence and literature in most fields is not one sided and that alternative explanations or interpretations of data are often possible within a certain defined range. The court and those enjoined in the litigation rightly expect proper and robust analysis of evidence on which to them base decisions on the balance of probabilities.
Case law attests, sometimes quite publicly, to the occasions when experts have been dismissive of alternative views and held too exclusively to one particular point of view. ‘Range of opinion’ clearly can relate to any of the key medico-legal aspects of a report (e.g., diagnosis, symptom duration and so on). Experts need to develop robust methods of expressing this ranges. Comments on and interpretation of other medical (e.g., GP and hospital records) or medico-legal evidence (other expert reports) is crucial and again is subject to differential quality from experts. This can be managed by both lawyers and expert by following steps:
- Provision of computerised GP attendance records which are as complete historically as possible and up-to-date (see Koch, Lille & Kevan 2006).
- Possible highlighting of areas of records to be addressed by the expert.
- Ensuring the expert keeps within his/her own area of competence when commenting on other reports provided. This is of particular relevance in the complex field of chronic pain, where the causation of a pain experience may be erroneously labelled as organic or psychological by the psychological/psychiatric or orthopaedic expert respectively.
Implicit in the obtaining of an expert report is the request for information or opinion about the reliability of the evidence available. This is often, misinterpreted as solely meaning the claimant’s reliability and truthfulness. Although this is part of the picture, the wider and more complex issue is whether the overall evidence can be considered a reliable set of data on which to base a quantum assessment by the court. This entails assessing reliability on several fronts:
- Consistency of claimant account with other evidence.
- Consistency of evidence with contemporaneous GP attendance records;
- Consistency of course of apparent symptoms and claimed disability with known literature on similar disorders;
- Reliability factors in interpreting standardised test results;
- Social and psychological factors relating to credibility and truthfulness within the interview itself.
Personal injury litigation has often needed to address employment related issues. However this is increasingly becoming an essential part of the expert opinion as loss of earnings and employability are more closely scrutinised. This is never more pertinent than in, for example, the psychological or orthopaedic arenas where a ‘claimants’ ability or capacity to work is affected by physical, social, psychological, occupational and economic factors.
Despite the adage ‘two experts will always produce at least three different opinions’, the advent of the joint opinion or heads of agreement and disagreement, has been an effective mechanism for clarifying apparent divergence of views between two similar experts. Since 1999, experts who provided extreme opinions have tended to disappear and the resulting opinions when subjected to the joint opinion process have usefully produced:
- A logical appraisal of what the expert’s written conclusions were in terms of agreement and disagreement;
- An analysis of clinical and social factors affecting disagreement.
The dangers and pitfalls of such debates have been well documented (Gaylor, 2001; Koch & Kevan 2005). A joint opinion is not about compromise, it is to provide both parties and ultimately the court with reliable and credible evidence, including logical differences of clinical opinion. The issue of timeliness and expert responsiveness can, in practice, frequently be a source of lawyer-expert tension. This has recently been addressed by both lawyers and experts (with a help of court-set timetables) setting time limits for the provision of reports, written clarifying responses and joint opinions. Meeting such time limits is an essential part of commissioning or providing a business-like expert service and is significantly helped by both parties’ acknowledgement and understanding of the legal/court-related and clinical pressures on adhering to these.
The provision of an expert service to lawyers and the court is based on several quality variables which can be managed by lawyers and experts alike. These involve customer responsiveness and process improvement (Koch, 1991). For this to operate, the working relationship between both parties benefits from periodic reviews and mutual feedback either on a particular case or in general. This is highly professional relationship moves towards total quality when the many factors cited and discussed above are addressed.
Koch HCH (1991) Total Quality Management in Healthcare. Longmans, London.
Koch HCH, Kevan T (2005) Psychological Injury. XPL Press, St Albans.
Koch HCH, Lillie FJ & Kevan T (2006) Perfect Attendance. Legal and Medical.