EWJ FEB 59 2025 web - Flipbook - Page 77
being structed after the first case management
conference;
In order to avoid the need for major amendments
resulting from any misunderstanding, experts should
always raise areas of concern, confusion or doubt with
the instructing solicitor early on in the instruction
process, so that wrinkles can be ironed out before the
report is drafted.
b) Factual evidence, which should include medical
records (in personal injury cases), factual witness statements (either drafts or exchanged), evidence from
other sources such as internal inquiries, root cause
analyses, the post-mortem report in a fatal case, accident reports, police reports, etc. Quantum experts will
require quantum factual documentation, too, for example care and case management records, therapist
records, etc.; and,
Between the combination of the letter of approach
and the letter of instruction, the role of the expert and
the nature, scope and terms of their instruction should
be clear and agreed, so no significant issues should
then arise from the preparation of the report.
c) Expert evidence from other relevant experts, e.g. a
causation expert will ideally want to see the breach of
duty expert report.
Dr Jock Mackenzie is a partner on the medical claims
team of Anthony Gold Solicitors
https://www.bondsolon.com/insight/what-to-expect-when-youare-instructed-by-a-solicitor/Highlights from the 2024 Bond
Solon Expert Witness Conference
2. The letter should then set out the history and
relevant chronology in detail, initially as ascertained
from the medical or similar records, including the relevant past history, the presenting history, the index
event(s) and all relevant details. However, it should
also contain reference to the witness statements and
any other potentially relevant evidence as mentioned
above, e.g. internal investigation documents, inquest
documents, etc.
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3. The letter should then draw attention to any
pertinent discrepancies in the evidence and factual disputes where the expert should opine on each scenario.
4. Having identified the evidence to the expert - while
noting that what evidence is relevant to the expert’s
opinion is ultimately a matter for the expert – the most
important element of the instruction letter is then the
specific questioning, which delineates the scope of the
expert’s instruction. These questions will set out what
the instructing solicitor is seeking from the expert.
There are a few points to make about them:
Mr Nikhil Shah
a) The questions should be sufficiently detailed and
clear that the expert is able to understand the scope of
the instruction; if any questions are unclear, the expert must not hesitate to raise the issue with the instructing solicitor to obtain clarity before answering
them;
Consultant Trauma
and Orthopaedic Surgeon
FRCS(Tr & Orth), FRCS(Glasg), MCh(Orth), MS(Orth), DNB(Orth).
I provide medico legal reports in personal injury
in various conditions - trips, slips, whiplash injury,
hip surgery, complex pelvic acetabular fractures,
long bone and articular fractures, ankle, lower
limb injuries, hip/knee joint replacements,
periprosthetic fractures, soft tissue injuries and LVI cases.
b) Some questions will likely be broad, open questions;
others will be narrow, closed questions: both are fine,
but an expert should not feel obliged to answer a question which is outside their remit or which they do not
feel either able or comfortable answering; and,
I also provide clinical negligence related reports in my specialist
area of practice concerning hip and knee replacements, revision
surgery, and trauma including pelvic-acetabular fractures.
c) Questions posed are not usually intended to be
exhaustive but more as a guide to the issues in the
case; if the expert identifies other issues in the case
which the solicitor has not mentioned in the questions,
it is pertinent for the expert to raise them.
Instructions from claimant/defendant solicitors or single joint
expert approximately (ratio 45:45:10). I provide the regional
tertiary service in pelvic-acetabular fractures.
Secretary Amy Brookes 0161 393 3059
Consultantcare Ltd, Riverside Buildings, Mill Lane, Cheadle, SK8 2PX
Contact:
After the questions section, it is usual to have an administrative section, reminding the expert of the matters that they need to consider when preparing their
report, particularly for a CPR-compliant report. My
personal practice is often to include a short summary
document for the expert which sets out the relevant
law, practice and procedure, primarily as an aidememoire and checklist. I conclude my letters by explaining that the expert can ask any questions before
finalising their report.
EXPERT WITNESS JOURNAL
Consultations at:
76 Gartside Street, Manchester M3 3EL
47 Rodney Street, Liverpool, L1 9EW
John Charnley Wing, Wrightington Hospital, Hall Lane, Appley Bridge,
Near Wigan, WN6 9EP
Ad hoc clinics in London
nikhil.shah@consultantcare.com
www.privatehealthcare.co.uk/privatespecialists/
find-a-doctor/knee-surgeons/nikhil-shah
Email:
Website:
75
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