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The Cost of Sub-Standard The issue 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 been instructed. • 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 at risk. In helping the court to decide whether liability is established or what damages should be awarded the expert must understand the 4