The Value a Well-Written Medicolegal Report Can Make to your Defence
With any medical procedure, there is an inherent risk that an adverse event may occur, which may ultimately lead to a claim of medical negligence and litigation. Often, as part of a case, independent expert advice in the form of a medicolegal report will be sought to offer an opinion on the standard of care received by the patient, issues of causation and the claimant’s prognosis. The decision of whether to defend or settle a claim is based heavily on the expert evidence and thus a well-written medicolegal report may play a crucial role in the outcome of a case. It is therefore vital that when considering potential expert witnesses to compile the medicolegal reports that will be used to defend a claim, the defence team selects practitioners with a sufficient level of expertise.
The first step in preparing a medicolegal report is to examine the events surrounding the alleged incident. This will help to identify any inconsistencies, particularly in the chronology of events, in the records and can be especially important if the claimant has visited several different doctors for diagnosis or treatment. It should also elucidate whether the claimant ‘doctor-shopped’ or if medical treatment was sought after the claimant had consulted with lawyers about the possibility of launching a legal case.
A good medicolegal report will consider the plausibility of the alleged incident as a cause of the symptoms reported by the claimant, and determine whether an alternative explanation is more likely. It is also important to consider whether the claimant’s symptoms are typical of those normally experienced by a patient suffering from the condition in question. Some symptoms or side-effects may actually be an accepted course of an illness or result of treatment, so their occurrence would not necessarily indicate negligence on the part of the treating physician. Furthermore, a deterioration in a patient’s condition does also not always indicate that medical negligence has occurred. Even with appropriate care and treatment, not all patients make a full recovery.
The claimant’s previous medical history is arguably the most important part of the available evidence in a case. From this, it may be possible to identify an alternative cause of the symptoms reported by the claimant. The medical records will also indicate whether any different diagnoses were explored by the examining physician, and if so, why they were rejected in favour of the current diagnosis. Furthermore, a re-examination of the patient may shed further light on their condition and result in a re-evaluation of the original diagnosis.
It will also be apparent from the medical records whether the claimant has suffered similar symptoms in past, and if so, for how long and what the severity of these symptoms was. The records may also indicate a pre-existing vulnerability that has led to the development, or worsening, of the claimant’s condition, and this may be something which would have happened anyway even if the incident in question had not occurred. This aspect can be particularly important in cases involving chronic pain. Therefore, in these circumstances it could be argued that even if causation is established the consequences of it should be time-limited, as the vulnerability would have manifested itself relatively quickly anyway. In such cases, the claimant’s post-incident medical history may be as important as their pre-incident history in helping to identify medical conditions that may be responsible for producing or worsening the reported symptoms.
The medical records will indicate the treatments suggested by the examining physician, whether these have been concluded and whether any alternative or further treatments are deemed necessary. Any delays in seeking treatment or failure to comply with prescribed therapies should also be highlighted as these may have a detrimental effect on prognosis. Thus, any evidence of failure to comply with treatment would limit the claimant’s chances of successfully seeking compensation. It is also important to examine whether the claimant’s condition is expected to improve in the future. While successfully demonstrating that the claimant’s condition is likely to improve significantly at some point will not absolve a doctor from an allegation of negligence, it may have a substantial bearing on the amount of compensation that can be claimed.
In any medical negligence case, a claimant will only be successful if he or she can show that a duty of care was owed and that the level of care received was below the standard that could reasonably be expected. Furthermore, any damage suffered must be as a direct consequence of this breach in the duty of care. Unlike a criminal case, in which facts must be proved beyond reasonable doubt, proof on a balance of probabilities is all that is required in a civil case. However, the burden of proof lies very much with the claimant. Thus, if a case is to be successful, the jurors must be convinced that the evidence provided by the claimant is more plausible than that provided by the defendant. In reality, the majority of claims are abandoned by the claimant. This often occurs on receipt of the expert’s evidence, when it becomes apparent that the case is weaker than was first thought. Therefore, a well-written medicolegal report, which can demonstrate either that no negligence occurred or that no harm was suffered directly as a consequence, will be instrumental in defending a claim of medical negligence.
About Medicolegal Partners
It’s a pre-requisite of working with Medicolegal Partners that our experts have an NHS practice or extensive NHS experience in addition to their private practice. This demonstrates their commitment to their continuing professional development and ensures their knowledge, skills, clinical and medico legal practice remains current.
They are experienced expert witnesses and work on cases instructed by defendant or claimant. For more information about their fields of expertise – click here.
Gossman W, Robinson KJ, Nouhan PP. Expert Witness. [Updated 2019 Dec 20]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2020 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK436001/
Mitchell, M. W., & Smith, M. Z. (2017). Handling and Defending TBI and CRPS Cases. The Brief, 47(1), 39–45.