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The Cost of Sub-Standard
The Jackson reforms are upon us. Extended tracks, fixed fees and non-recoverability of success fees will
force a close consideration of the costs incurred in presenting an injury claim and how most efficiently to
put the claim together. The medical report is essential for a successful recovery, or effectively to defend a
claim, and important parts of any case will be built on the foundations of the medical opinion.
A sub-standard medical report can be expensive for the lawyer obtaining it! Not only will it frequently result
in damages being undervalued but also in time being wasted by the legal team in interpreting the report and
seeking clarification or amendments. With fixed costs this is a particularly important issue. Most claims
never go to a disputed hearing, but the report, as interpreted or understood by the parties’ representatives,
will be used to assess the strength and value of a claim, and to negotiate settlement. Further, an expert
providing a sub-standard report cannot be relied on to uphold important aspects of the claim in a joint
discussion with a competent expert, or at a hearing, with potentially disastrous consequences.
The lawyer dissatisfied with the report can obtain another but costs will be wasted. If the report has been
disclosed the court is unlikely to permit a change of expert.
IS THE REPORT FIT FOR PURPOSE?
This writer, who has the dubious privilege of reading dozens of
reports in the course of a months’ practice, would suggest that a
significant majority of medical reports prepared for civil litigation,
whether obtained through a medical reporting agency or direct
from a clinician, are not fit for purpose. Those failings vary from
the subtle to the gross.
The following examples demonstrate the failure of the medical
expert to understand his/her role in the claim in which s/he has
• She will not make a recovery from these persisting symptoms
within the foreseeable future
• As, despite her limitations, she is managing in her job, in my
view she is not at a disadvantage on the open labour market.
• The left wrist will have a long term disability of ten per cent
• There is a more than 50% chance that she will require a knee
replacement during the next 10 years. She may then require a
further revision of her knee replacement as she is relatively young
While it is likely that the expert understands the requirements of the
CPR (the Rules, Practice Directions and Protocol), on which most
training is centred, and will have complied with the CPR, the Rules
do not address any of the matters in these examples. Statements
such as those above prevent a proper valuation of the claim.
THE EXPERT’S DUTY
The clinician, holding him/herself out as providing expert reports
in civil litigation has -
• A duty to help the court on matters within the expert’s
expertise, a breach of which can result in sanction from the
court; • A duty of care to the client to use reasonable skill and care in
providing his/her services in writing a report, a breach of
which can result in a claim for damages suffered as a result of
any failure on the part of the clinician ; and
• A professional duty under the GMC guidelines to be accurate
and not to mislead, to understand exactly what questions the
clinician is being asked to answer and to use language and
terminology that will be readily understood by a non-medical
audience, breach of which may put the clinician’s registration
In helping the court to decide whether liability is established or
what damages should be awarded the expert must understand the