The importance of recognizing the different types of specialized surgical evidence (2023)

1. September 2016

It is generally understood that surgeons hired to produce reports for use in court are hired only to substantiate the report and only for that purpose. This assumption is wrong. Expert opinions come in many forms, and acknowledging this fact will have an impact on the approach to report writing and the way the expert writes the report.

Expert opinions are just one aspect of expert opinion.

A litigation expert is generally engaged to provide opinions on: Has the level of care fallen below that which can reasonably be expected of a reasonably competent expert in the field, or has an injury, loss o damage for breach of duty o what is the extent of injury, loss, or damage resulting from an accident or other adverse event? But that's not the whole picture, and there are other types of expert evidence that can be just as important to lawyers as they are to the judges hearing cases, and are often included in a court report. It is important to be aware of the different roles that an expert may have as a court expert and the different but often overlapping reasons why the expert may have been engaged. The recent Supreme Court decision in Kennedy v. Cordia (Services) LLP1 was concerned with an engineer's testimony in relation to a landslide case and although this is an appeal from Scotland the Court's comments apply equally to England and Wales and medical experts. .

The Kennedy v. Cordia case

The case itself was medically relatively simple. Tracey Kennedy, a family doctor, slipped on an icy driveway and broke her wrist while visiting an elderly patient. She demanded compensation from her employer. A health and safety expert said that if he had been fitted with a clip-on accessory called the "Yaktrax" for his shoes, he probably would not have slipped and broken his wrist. He felt that Cordia did not adequately assess the risk of such an event. Cordia challenged the expert's report on the grounds that it was inadmissible because she did not have the relevant special skills or expertise. The original court decision was that Cordia was responsible, but that opinion was overturned on appeal, and Ms. Kennedy and her legal representatives petitioned the Supreme Court to overturn that decision. The Supreme Court followed.

The expert as a factual witness

Like any other witness, the surgical expert can be an expert who provides evidence of what he observed as long as it is relevant to a matter at issue in the case. For example, a surgeon may record an examination of the applicant, or the applicant's appearance or movements as they enter or leave the office. Like any other factual witness, it is important, particularly when the evidence may be challenged, that the medical expert provide evidence of the circumstances in which the facts were established in addition to the evidence of the facts. For example, in relation to the clinical encounter with the applicant, the report must include the time spent together with any information demonstrating the reliability of the expert's testimony. For other observations, information on how long the applicant was observed, from what distance, whether the view was clear and under what lighting conditions.

The expert as a witness to expert facts

As an expert witness, a surgical expert may also testify on a subject based on his knowledge and experience, drawing on the work of others, e.g. B. on published research or the shared knowledge of a team of people with whom he or she works. For example, a medical expert can show how a joint works, what the possible effects of a particular fracture or disease on the joint or bone, or what is present but not immediately apparent (e.g., by palpation). This may not be evidence of an opinion but evidence of facts known and shared by like experts. The same rules apply to the admissibility of such witness evidence as to the admissibility of expert reports. Therefore, in order to be allowed to provide this evidence, the expert must state their qualifications from education and experience to provide expert evidence (most likely in the CV section of the report) and also indicate where they are from. information received, if this is not based on your own observations and experiences. This expert factual evidence may be presented alone or in combination with or as the basis for the submission of expert evidence.

The expert giving his opinion on "missing" facts

Sometimes the expert must express an opinion on the facts (balancing the probabilities) or determine the need for it. For example, there may be missing or missing observations or readings in the medical records, or missing or missing X-rays or other images, the content of which could be important for the issuance of an opinion. Based on other information or data and expert knowledge, the surgeon can offer an opinion as to what that missing fact was (weighing the probabilities). In order to be able to make such a judgment about the "missing" fact, the expert must be able to justify his experience in this regard. This is likely to be covered by the standard resume section of the report, but if not then the experience should be explicitly mentioned.

The expert proves “pure” opinion

"Pure" opinion evidence, as opposed to expert factual evidence, will address, for example, expert medical evidence, condition and prognosis, causality, or standard of care. This is what one normally thinks of when referring to expert opinions.

Rules on the admissibility of expert opinions

Whether expert evidence or expert opinion, the same four considerations apply to the admissibility of qualified evidence:

1. Will the evidence help the court in its task?
2. Does the witness have the necessary knowledge and experience?
3. Is the witness impartial in presenting and evaluating the evidence?
4. Is there a reliable body of knowledge or experience to support the expert evidence?

But evidence of opinion, unlike evidence of fact, is admissible only when it is necessary, and not merely helpful, for the court to have such evidence in order to decide the matter at issue. Evidence of medical expertise treating the condition and prognosis, cause, or standard of care is usually and obviously required. A medical expert's opinion to establish the missing facts is not necessarily obvious and must be justified: the report must explain why it is necessary to establish the missing facts and justify the expert's expertise in providing it.

Provide arguments, not just claims.

It is always essential that the expert explains the basis of his test, if it is not just a personal observation or feeling test. The mere statement carries little weight. Citing a South African case in Kennedy v. Cordia Services LLP, the Supreme Court, stated: “Except possibly where there is no controversy, an expert's blatant testimony is of no real help. A proper appreciation of the report can only be made if the reasoning process leading to the conclusion, including the premises on which the reasoning is based, is disclosed by the expert." And, citing a Scottish case, the High Court stated: "As with judicial or other opinions, it is the reasoning, not the conclusion, that counts."

write the report

The surgical expert must consider these points when preparing a court report:

1. When proving facts observed by the expert, the circumstances of their observation and thus their reliability must be stated. This may include details of the length and circumstances of the clinical encounter with the applicant or the distance from which the applicant was observed leaving the practice;
2. By establishing facts known only by virtue of the particular skills for which the expert has been instructed, in addition to producing the appropriate expert credentials to justify the expert status, the expert must make clear statements about the justification process that led to each conclusion reached;
3. In providing an Opinion on Missing Facts, in addition to providing the appropriate Expert Credentials justifying Qualified Expert status and the ability to provide the Opinion, the Expert must explain the importance and relevance of the missing facts and provide a clear explanation of the reasoning process by which the missing facts were found can be derived;
4. When providing an opinion on condition and prognosis, causality or standard of care, in addition to providing the appropriate expert evidence to justify qualified expert status and the ability to deliver the opinion, it is the reasoning process that carries weight with the judge and is therefore to be stated in the expert report .

Editorial commentary by Mike Foy

It is true that as experts we focus on cause, condition and prognosis in our personal injury reports, as liability is not normally within our purview. Rather, liability is of fundamental importance if an expert opinion is obtained in the case of alleged negligence. Giles Eyre presents another facet of the expert evidence emerging from the recent Kennedy v. Cordia We all would no doubt; provide a clear and concise description of the claimant's description of the injury and our objective findings in the investigation. Where appropriate, we also provide our opinion on the truthfulness of the applicant and any inconsistencies in their presentation of history and continuity of symptoms after the accident compared to medical records. It is currently not common for experts to record the time spent with the applicant. The position of the "missing facts" is interesting. Unfortunately, it is not uncommon for records to be incomplete. The most difficult scenario arises when the records are complete and there are no complaints about relevant symptoms for an extended period of time, although the applicant insists that the problems persisted throughout the procedure. In this case, the expert must have an informed opinion based on his experience in treating the condition under consideration in clinical practice, together with his understanding of the pathophysiology and epidemiology of this condition, the truthfulness of the applicant and the expected time of recovery from the Injury. If the claim alone is insufficient without justification, how do we rationalize the concept of progressive or accelerating symptoms when the expert believes the position on causality is appropriate? A simple assertion of six months, five years, or twenty years is unlikely to help or satisfy the court unless a rationale can be given to justify the position taken. Some instructions for this have appeared elsewhere. Food for thought, indeed.

Giles Eyre recently retired after 40 years as a lawyer specializing in clinical malpractice and personal injury claims. He is co-editor of Clinical Negligence Claims - A Practical Guide (2015). He is mediator and continues to act as registrar. Giles is co-author of a handbook for medical legal professionals and their trainers: 'Medical Legal Report Writing in Civil Claims: An Essential Guide' (2nd edition, September 2015) (www.prosols.uk.com). He frequently conducts seminars and workshops, and trains medical professionals and those who instruct them in forensic report writing, presenting evidence, and other forensic matters. As a Medico-Legal Minder, Giles blogs on topics of interest to coroners.

Author:Giles Eyre, retired attorney and mediator, co-author of Handbook for Medico-Legal Experts

This article was first published in the September 2016 issue of JTO.

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