Expert Witness in Medico-Legal Cases

Mr Peyton has been involved in medico-legal reporting and court appearances as an expert witness since 1983, and is a Foundation Member of the Expert Witness Institute.

Over the last five years Mr Peyton has seen a minimum of 1,500 cases per annum including personal injury, RSI and medical negligence.

The feedback regarding the lecture was excellent - everyone seemed to think it and you were wonderful.

Briege Williams, Belfast Solicitors Association

The following is an excerpt from chapter 8 of Mr. Peyton's book Whiplash. This chapter is entitled The Medico-Legal Assessment and Report and it explains in detail the structure and format of the medico-legal report, including medical history, injuries sustained, subsequent management and treatment, and any comments and prognosis. The book is available in the online shop.

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The audiobook can be easily downloaded to your mp3 player/phone allowing you to listen in your car or on the train.

Introduction

At the heart of medico-legal practice is the medico-legal assessment and report. Its function is to set out analytically which injuries were caused by the accident and the short and long-term effects of these injuries, physically and psychologically. In general, the short-term could be construed as the period up to the case being resolved and the long-term any period thereafter. The essence of the prognosis is an estimation on the balance of probabilities of the likelihood of continuance or deterioration of the condition in the longer term. This is the difference between what may happen– an outside chance but important if it is going to be a significant complication, what may possibly happen–which implies a greater likelihood of occurrence but still less than a 50% chance and what might probably happen–suggesting it is more likely than not to happen, that is, a 50% or greater chance.

What at first might seem a fairly straightforward process of determination based 'on the balance of probabilities' becomes more complicated in the presence of a pre-existing history of a similar problem, or a previous accident. Formal prognosis may also be made rather more difficult due to an inadequate history of the mechanism of the accident, for instance due to poor recollection by the claimant either of the accident itself or of their subsequent clinical course by the time they appeared for an examination.

Other factors which must be taken into account by the medical expert is the emotional and psychological status of individuals as well as the nature of their work and their particular lifestyle. Finally, account must be taken of any underlying physical abnormalities discovered during investigations. These may include underlying abnormalities in the structure of the spine such as osteo-arthritic changes which have not previously given rise to symptoms.

All of this therefore becomes the field of the medico-legal expert witness.

Initial Instructions

The initial letter of instruction from the solicitor to the medical expert should briefly address matters of fact surrounding the accident along with any specific areas which the lawyer wishes the expert to address. It is also helpful if the medical expert is aware at the outset whether or not there are pre-existing xrays and if there is clearance for any further x-rays to be taken.

If there is any doubt, the medical expert should make direct contact with the instructing solicitor. This is essential, as it is surprising how often the claimant cannot remember seemingly obvious facts such as the date of the accident and its exact nature. If they were not the driver of the car some cannot remember exactly where they were sitting and whether or not they were wearing seatbelts. This is compounded if there is some amnesia as a result of the accident and therefore it is advisable that such information be contained with the instructions. It is also valuable to have a list of the initial complaints as given to the solicitor since again it is not uncommon for claimants to forget to mention particular problems at the time of their examination especially if some of the problems cleared quickly and the report is not requested for many months after the incident. It is therefore recommended that a first report is obtained within a matter of months and subsequent reports, if required, a year or more later if there appears to be the likelihood of long-term consequences. There have been a number of attempts to formalise the structure of medico-legal reports, but many find this constrains individual style. Nevertheless, it is reasonable to point out some basic requirements under each heading.

The Format of the Medico-Legal Report

  1. Preamble
  2. Documentation
  3. History
  4. Injuries Sustained
  5. Subsequent Management and Treatment
  6. Past History
  7. Present Complaints
  8. On Examination
  9. Comment and Prognosis
  10. Statement of Independence

Preamble

The full name, age, sex and address of the claimant along with an occupational history should be provided. This would include the claimant's occupation at the time of the incident as well as at the date of the report since it may be necessary in the comment section to explain why there has been a change in occupation and the relevance to the subject incident. The date of the accident and the date of the report stating clearly whether this is a first report or a follow-up report should also included.

The following presentation was recorded at a talk given by Mr. Peyton to the Belfast Solicitors Association on the subject of whiplash and the medico-legal issues surrounding it. (requires flash)

If you only want to listen to the audio without the slides you can use the controls below.