Detailed Evidence Gathering for the Solicitor and the Expert in Medicolegal Reports

26 Aug 2020

In the majority of medicolegal cases, the outcome is dependent on the opinions expressed in experts’ reports. Therefore, these must be based on high quality evidence, particularly in cases where the questions surrounding breach of duty, causation and the damage sustained by the claimant are complex. Furthermore, once a case has gone to court, it is not possible to raise new matters which have not already been examined in the reports. It is therefore imperative that important evidence is not missed out, as this could have serious consequences on the outcome of the case.

When gathering evidence for a claim, the claimant’s medical records are probably the most important source of information. These will include clinical records written by doctors and consultants but also by other practitioners, such as nurses, physiotherapists and other clinicians. The medical notes may also contain other types of records, including x-rays, ultrasounds and other scans. There may be a substantial amount of material in the medical records, and as it may come from more than one source or location, it is important to make sure that a complete set of records has been obtained before work on the medicolegal report can begin. This is particularly true when a claimant has been treated at several different hospitals. It is very likely that records from at least one location may be missing and will need to be acquired. In straightforward cases, review of the medical records is less complicated although important, but the more serious the injury and more complex the case, the more essential full access to all the medical records becomes and investment of time to track them down is well spent and can be crucial to the final outcome of the case.

Due to the amount of material potentially available, it is vital to accurately collate and index the medical records. This comprises sorting the records in to chronological order, identifying missing records and removing any duplicates that may have been included. In cases that span a long time period, or where the claimant has sought a diagnosis or treatment from several sources, it can be particularly helpful to prepare a detailed and cross-referenced chronology of events. An accurate chronology is extremely important as it may highlight cases where symptoms started before the index accident occurred. This is frequently seen in cases involving back pain or similar conditions, where the accident may have exacerbated symptoms already present, but not be the original cause of them. In addition, where the claimant has seen several practitioners, any inconsistencies in the presentation of symptoms should become apparent if a detailed chronology is constructed.

An examination of the patient should always be carried out, even if the injury is minor and a face-to-face meeting does not appear essential to the case. A detailed examination, which might include clinical photographs where appropriate, often highlights issues that have hitherto remained unnoticed, meaning the patient can receive appropriate treatment. In addition, it can provide an opportunity to question the claimant directly about any unresolved issues that have been revealed by their medical records, another reason why full records should be obtained and made available to the expert before compiling a medicolegal report.

Many medical expert witnesses request that claimants complete a questionnaire prior to their medical examination, which is tailored to the case so that all relevant information can be obtained and all angles of the case can be covered. It is arguable whether such a questionnaire, if used, would be disclosable in court but it is wise to include it in the medical report, at least as an appendix. Furthermore, many claimants are understandably nervous while attending a clinical examination with an expert witness and may find it hard to express themselves fully. There is a risk that the medicolegal report will be an accurate description of the appointment, but not of the actual injuries themselves. In such cases, a questionnaire is very useful, as it allows the claimant to explain fully the circumstances of any accident which may have led to their injuries and exactly how their injury has impacted on their life in a less stressful environment of the clinical appointment especially if travel is involved which may exacerbate their condition or pain.

If the claimant alleges that he or she is unable to perform routine tasks, or if it is suspected that the limitation in activities is not as great as is claimed, consideration should be given as to whether surveillance should be conducted. In addition, an internet search of the claimant’s social media should be undertaken as soon as possible and any relevant posts or photographs documented. Even if no deception is revealed, video surveillance can be very useful in giving an insight into how the claimant’s alleged disability affects their day-to-day life and may provide a clearer picture than the claimant’s own account. This is often undertaken by the opposing side (defence) but not often the claimant’s solicitors, it is advised to ensure there are no surprising findings as the case progresses and the expert should be fully updated of findings.  Ideally, the surveillance should be undertaken shortly before the appointment with the expert witness, so that any discrepancies can be questioned. In addition to video evidence, witness statements from employers, neighbours and friends may also be useful in demonstrating the claimant’s level of functioning.

The credibility of the claimant can affect whether a case proceeds to trial, as the less credible a claimant is, the more likely it is that a case will end up in court. It is also important to remember that the higher the value of the claim, the higher the level of scrutiny will be from all sides involved in the case, due to the larger sums of money potentially involved. Thus, detailed and high-quality evidence will be necessary to either prove or defend a claim and solicitors taking the time to look at this closely early in the case can prevent wasted time and manage expectations as well as help achieve a fair settlement.

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:

Our range of specialisms can be found here.  Please follow the links to find out more about each expert and to download their CVs.

Further reading

Gray, A. 2017. Claimant interview tips for experts. Medico-Legal Magazine. 2017;5:22-3.

Lewis, Richard K. 2018. Strategies and tactics in litigating personal injury claims: Tort law in action. Journal of Personal Injury Law. 2018;2:113-36.