The value a well-written medicolegal report can add to a claim

11 May 2020

When an individual decides to bring a claim for personal injury, and any associated subsequent losses, they will need to be able to prove that an accident occurred, that it was caused by someone else’s negligence or breach of duty, and that this breach resulted in the injuries sustained. A medicolegal report is a fundamental part of a claim for compensation, as it provides the foundation for much of the claim. Not only is it essential in proving that any injuries were sustained as a result of the incident in question, it will be used to assess the validity and potential value of a claim and is therefore vital in negotiating a settlement.

It is unusual for a report to be prepared by the patient’s own GP or consultant. One major reason for this is that as they are involved in treating the patient, they may not be able to provide advice that is truly impartial. In addition, a GP is unlikely to have the specialist knowledge required to assess the nature and extent of injuries suffered by the patient. Therefore, it is much more common for a medicolegal report to be commissioned from an independent expert, or indeed several experts in different fields.

The ideal expert has sufficient competence within their field to be able to offer an opinion, but should also make it clear when a particular issue falls outside their area of expertise. The report must contain all the material facts, even if they conflict with the expert’s opinion, as it must not mislead by omitting relevant details. The report should show that not only has the expert considered other explanations or views but should be able to justify why a particular conclusion has been reached, by explaining the assumptions on which it is based. It is important that relevant medical literature is referred to if it is available, in order to support the expert’s view. However, if the existing data is lacking or poor, this must be noted and the opinion offered should be considered as provisional only.

A medicolegal report is so-named because in order to provide an opinion on which to base the value of the claim, the expert must assess the medical position and then apply certain legal tests to it. Issues to be considered generally revolve around the existence of a duty of care, any possible breach of this duty and whether any harm sustained by the claimant was a result of this breach. In a civil claim, the expert will view the evidence on the basis of a balance of probabilities. There is no requirement to be absolutely certain about what the outcome would have been had the incident not occurred nor about what will happen to the claimant in the future. If the expert’s opinion is accepted by the court, then anything which, according to the expert, is more than 50% likely will be treated as a certainty.

Issues that should be addressed in the report include an objective description of the injuries sustained by the claimant, possible scenarios as to how they were caused, and details of the injuries or conditions that were diagnosed, as well as any treatment the claimant has received, whether that was from a hospital, GP, physiotherapist or other practitioner. An assessment will also be made of the claimant’s level of recovery and if this is not complete, how long the present effects and consequences of the injury or condition are likely to continue for, what restrictions the claimant has as a result of the incident, and what the likely impact of these will be on future employment. The expert may also recommend further treatment if appropriate.

The report should also include details of any similar injuries or medical conditions that the claimant may have suffered from prior to the incident being claimed for. Previous medical history is important because it is possible that the incident has precipitated the development of a pre-existing condition, which until that point may have had no or few symptoms. This is particularly common in relation to back injuries. There may also be an assessment of the risk of the claimant requiring surgery or further treatment in a set number of years from the present time as a direct result of the injury. Once all of these facts have been established, the expert’s report will be used by lawyers involved in the case to assess the value of the claim in respect of the pain, suffering and loss of function endured by the claimant.

It is important to remember that the medicolegal report will be read by individuals who are not doctors, so the language and terminology used should be readily understood by a non-medical audience. Furthermore, any opinions put forward are likely to be closely scrutinised and may be challenged in court. While non-medical readers may not always appreciate the limits of medical science, the weight given to an opinion is usually dependent upon the knowledge and experience of the expert who expresses it. In order to minimise time, costs and stress, litigation should ideally be brought to a conclusion as quickly as possible and a well-written medicolegal report, authored by an appropriate expert, can help to achieve a satisfactory outcome for a claimant.

About Medicolegal Partners

Medicolegal Partners has a range of expert witnesses covering a number of medical areas.  They are all experts in their fields and experienced expert witnesses.  Find out more about us: https://www.medicolegal-partners.com/about-us/

Our range of specialisms can be found here.  Please follow the links to find out more about each expert and to download their CVs. https://www.medicolegal-partners.com/our-experts/

Further reading:

Bird S. How to write a medico-legal report. Aust Fam Physician. 2014;43(11):777-9.

Sullivan JD. The medico-legal expertise: Solid medicine, sufficient legal and a measure of common sense. Mcgill J Med. 2006; 9: 147-151.