Introduction
To comply with their Part 35 duty to the court, is it necessary for a medico legal expert to personally review the medical records?
The question fell for consideration by David Allen KC sitting as Deputy High Court Judge during the trial of the case pursued on behalf of PHJ v HMA (Unreported) which took place in October and December 2023 but in respect of which judgment has only recently been handed down.
Background
The case concerned a pedestrian v vehicle road traffic accident which occurred in 2016 as a result of which the claimant sustained a severe brain injury.
Medical Evidence
During the trial, oral evidence was heard from experts appointed by both the claimant and defendant including eminent neuropsychiatrists.
Whilst their joint report contained many points of agreement, areas of dispute concerning the type of life the claimant would have lived but for the accident and the extent of the need for further therapy remained in dispute.
As a result of giving evidence on these matters, it came to light the neuropsychiatrist instructed on behalf of the claimant based his reported views at least in part on “a review of medical records, reports and statements” prepared by his wife who is a neuropsychologist.
In preparation for the trial however, the expert did read all of the clinical notes.
Conclusion
Given the vast number of documents produced in a case such as this and in the face of ever increasing pressures to turn around reports whilst incurring reasonable costs, there is clearly justification in using a qualified person to ease the burden by preparing a review.
The Judgment emphasises the need however for Part 35 experts to make it clear in their reports whether they are relying on a review of the documents as opposed to reading them personally as well as the name and qualifications of the person who completed the chronology.
The expert should then study the most important documents for the purpose of forming their opinion.
In addition, we suggest it would be sensible for the expert to make their intentions in this regard clear to their instructing solicitor before agreeing to accept the case.
A copy of the judgment can be accessed here.
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Gemma Quinn is a senior associate in the catastrophic and large loss injury team based in Manchester and a member of the experts subject matter group.
