Medical Expert Evidencein courtMr Vaikunthan Rajaratnam

MBBS(Mal),AM(Mal),FRCS(Ed),FRCS(Glasg),FICS(USA),MBA(USA), Dip Hand Surgery(Eur),Dip MedEd(Dundee),FHEA(UK),FFST(Ed),FAcadMEd(UK).

Senior Consultant Hand SurgeonAlexandra Health, SINGAPORE

This work is licensed under a Creative Commons Attribution 4.0 International License.

Learning OutcomesAt the end of this lecture you will be able :-

• Understand the accepted definition, role and responsibility of the experts within the legal framework

• Understand the current changes and development of the Civil Procedure Processes globally

• To describe and determine the reliability, validity and credibility of an expert opinion

26 July 1996  Access to Justice Report

Woolf Reform

(a) be just in the results it delivers;(b) be fair in the way it treats litigants;(c) offer appropriate procedures at a reasonable cost;(d) deal with cases with reasonable speed;(e) be understandable to those who use it;(f) be responsive to the needs of those who use it;(g) provide as much certainty as the nature of particular cases allows; and(h) be effective: adequately resourced and organised.

use of single joint e

xperts

Pre-action Protocols

• encouraging the early exchange of all information relating to the prospective legal claim

• aiding settlement of the claim without the commencement of proceedings

• producing a foundation for efficient case management where litigation cannot be avoided

Jackson reforms

 Lord Justice of Appeal since 2008.  He was co-author and general editor of Jackson and Powell on Professional Negligence from 1982 to 1999.  Since then he has been consultant editor.  He has been an editor of the White Book since 2000 and editor-in-chief since 2010.  At the Inn, he was Master of Moots from 1998 - 2004.

The Rt Hon Lord Justice Rupert Jackson

Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - 'the LASPO Act') which came into effect on 1 April 2013.

Deadlines

• Mitchell v News Group Newspapers, the Court of Appeal sent out its clearest message yet to civil litigators that relief from sanctions will rarely be granted when a party fails to comply with court directions, rules and orders. In the case – the decision was reached on 27 November – the claimant solicitors missed a deadline to submit their costs budgets.

• Before this judgment, parties were able either to agree an extension of time among themselves, or at least expected courts to be sympathetic.

Independence - The MoJ initiative

• proposed a prohibition on either party having a financial interest in an intermediary through which a medical report is obtained, with a view to ensuring independence in the way a medical report is commissioned.

• the accreditation system for medical experts.

Conditional Fee Agreements (CFAs) and Damages Based Agreements

(DBAs)

• No win no fee agreements (CFAs and DBAs) are available, but the payments that the lawyers can take are controlled in personal injury cases. In CFA cases, if a success fee is charged by the lawyer, it is payable by the claimant and cannot be more than 25% of damages, excluding damages for future care and loss

• 25% cap on damages that may be taken as a success fee in personal injury cases

• ban on the payment and receipt of referral fees in personal injury cases.

Whiplash reform

• fixing the costs of obtaining medical reports in whiplash claims,• . The fee for the first report is fixed at £180.

• prohibiting the reporting expert from also treating the claimant • allowing defendants to submit their version of events to the expert.• accreditation for medical experts

Whiplash reform contd

• secondary reports are provided by • orthopaedic consultants (£420); • accident and emergency consultants (£360); and • GPs/physiotherapists (£180).

should only be commissioned on the recommendation of the expert completing the initial report.

From 6 April 2015, Doctors must be registered with MedCo Registration Solutions

 Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA Protocol) 

Accreditation of experts

• a peer review and • auditing of reporting• sanctions

• removal of • or restrictions applied to accreditation

78th Update to the Civil Procedure Rules 

Claim Notification Form - 6 April 2015• the first report in a soft tissue injury claim must be a fixed cost

medical report commissioned from a medical expert or medical reporting organisation sourced via the MedCo Portal.

• after 1 June 2015, claimants’ legal representatives must undertake ‘previous claims’ checks on potential claimants and insert the unique reference number generated by that search in the additional information box in the Claim Notification Form.

• 1 January 2016, medical experts must be accredited by MedCo Registration Solutions in order to provide the initial fixed cost medical report in a soft tissue injury claim.

Personal injury claims involving fundamental dishonesty• There were around 775,000 motor personal injury claims registered

to the DWP Compensation Recovery Unit in 2013/14, compared to around 520,000 claims in 2006/07, representing an increase of around 50% in claims. This increase has coincided with a 23% decrease in the number of road traffic accidents reported to the police - between 2006 and 2012 they decreased from 190,000 to 145,000, although trends in unreported accidents are unknown. Public liability claims such as for “trips and slips” have risen from around 95,000 in 2010/11 to around 104,000 in 2013/14 and employers’ liability claims have risen from around 81,000 to around 105,000 over the same period.

Fraud in personal injury claims

Mr Vaikunthan Rajaratnam MBBS(Mal),AM(Mal),FRCS(Ed),FRCS(Glasg),FICS(USA),MBA(USA),

Dip Hand Surgery(Eur),Dip MedEd(Dundee),FHEA(UK),FFST(Ed),FAcadMEd(UK).

Senior Consultant Hand SurgeonAlexandra Health, SINGAPORE

Association of British Insurers

• 59,900 dishonest motor insurance claims were uncovered in 2013, an

increase of 34% on 2012, with a value of £811 million (up 32% on 2012).

• represent around 8% of all motor claims registered with the Compensation Recovery Unit in 2013.

Supreme Court 2012 Summers v Fairclough Homes

• power to strike out the entirety of the claim where the claimant grossly exaggerates the extent of his or her injury, including any award for a genuine injury.

• BANNING INDUCEMENTS TO ISSUE PERSONAL INJURY CLAIMS

“On acceptance of your case we will pay you an upfront ‘welcome’ payment. This payment is on top of your eventual compensation

payment”

Medical Expert Evidencein courtMr Vaikunthan Rajaratnam

MBBS(Mal),AM(Mal),FRCS(Ed),FRCS(Glasg),FICS(USA),MBA(USA), Dip Hand Surgery(Eur),Dip MedEd(Dundee),FHEA(UK),FFST(Ed),FAcadMEd(UK).

Senior Consultant Hand SurgeonAlexandra Health, SINGAPORE

The Role of the Expert Witness

• In both civil and criminal cases, the opinions of the witnesses are not, in general, admissible. They are normally confined to stating the facts. It is the view of the court that it, that is the judge or judge and jury, are as well equipped as the witness to draw inferences from the facts to which the witness testifies. • But there are many issues that the court is required to determine which are so far removed from the court’s experience that it needs to obtain the opinion of experts to help it determine the issue in question.

“If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns” Buckley v Rice Thomas (1554)

Federal Rules Evid., Rule 702

• TESTIMONY BY EXPERTS. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The expert duties

(1) must advise the parties of any findings the expert makes;(2) may be deposed by any party;(3) may be called to testify by the court or any party; and(4) may be cross-examined by any party, including the party that called the expert.

entitled to a reasonable compensation

The expert witness performs two primary functions: 1) the scientific function — collecting, testing, and evaluating evidence and forming an opinion as to that evidence; and 2) the forensic function — communicating that opinion and its basis to the judge and jury

The challenges of the Expert Witness

• is the witness qualified? • Is the witness competent?• Is witness’ testimony legally and factually relevant?

“In trial, harm to litigants results from improper qualification of an incompetent expert or failure to qualify a competent expert ... The incompetent expert is a vehicle for unreliable proof, while the later denies the opportunity to present credible evidence.”

Christopher F. Murphy, Experts, Liars, and Guns for Hire: A Different Perspective on the Qualification of Technical Expert Witnesses, 69 Indiana L.J. 637, 649 (1993).

Checklist Expert Testimony

• 1. The expert’s name, address and area of expertise.• 2. The expert’s qualifications and employment and educational

experiences in his or her area of expertise.• 3. The instructions provided to the expert in relation to the

proceeding.• 4. The nature of the opinion being sought and each issue in the

proceeding to which the opinion relates.• 5. The expert’s opinion respecting each issue and, where there is a

range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

• 6. The expert’s reasons for his or her opinion, including,• i. a description of the factual assumptions on which

the opinion is based,• ii. a description of any research conducted by the

expert that led him or her to form the opinion, and• iii. a list of every document, if any, relied on by the

expert in forming the opinion.

• 7. An acknowledgement of expert’s duty to the court signed by the expert.

Rules of Civil Procedure, effective January 1, 2010,Canada.

Rule 26(a)(2)(B)(vi) US an accurate statement of the compensation to be paid for your study and testimony in the case, which would include:• A copy of your current fee schedule or engagement letter for the specific case• A case-specific invoice for the fees, expenses, and estimates of time for future work

Using your professional letterhead• Using 12-point font (Arial font is suggested) and 1½ line spacing• Creating topic headings and short, concise paragraphs• Providing a unique number for each page, table, chart, and exhibit• Including a cover page and table of contents• Indicating when and by whom your report was requested• Including the date you received the documents and formed your opinion• Stating that you may have additional opinions or updated/revised opinions if new information/documents are provided• Defining technical language and explaining any abbreviations• Including a summary of your conclusions/opinions

Report should avoid

• Absolute wording and phrasing• Terminology such as “including, but not limited to,” and “relevant portions of”• Hedge phrases such as “sort of,” “somewhat,” or “I suppose/feel”• Argumentative language• Comments on the credibility of other witnesses• An informal or too friendly tone• Any issues the attorney did not want addressed• Opinions outside expertise or on issues(s) not asked to address

An expert witness qualities (BMA)

• A sound knowledge and practical experience of the subject matter in dispute. - the clinician should be in practice • The ability to communicate findings and opinions clearly, concisely and in terms adapted to the Court or Tribunal before which evidence is being given. He or she must be able to analyse detailed and lengthy documentation, write clear statements that are intelligible to the Court or Tribunal hearing the case, to the parties involved and all of whom are lay persons in the medical context. • Flexibility of mind and self-confidence to modify opinions in the light of fresh evidence or counter-arguments. • The ability to ‘think on one’s feet’, necessary in order to cope with appearances in Court. • A demeanour that is likely to express and command confidence, particularly in court appearances.

The duties and responsibilities of expert witnesses. (UK)

1.Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v. Jordan, [1981] 1 WLR 246 at p.256, per Lord Wilberforce). 2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v. Commercial Union Assurance Co. Plc. [1987] 1 Lloyd's Rep. 379 at p.386 per Mr Justice Garland and Re J [1990] F.C.R. 193 per Mr Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate. 3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup.). 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. 5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup.). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the Report (Derby & Co. Ltd. and Others v. Weldon and Others, The Times, Nov. 9, 1990 per Lord Justice Staughton). 7 6. If, after exchange of Reports, an expert witness changes his view on a material matter having read the other side's expert's Report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and appropriate to the Court."

“Daubert Trilogy.” Daubert v. Merrell Dow Pharmaceuticals Inc.,6 General Electric v. Joiner,7 and Kumho Tire Co., Ltd. v. Carmichael.8

A - reliability and the Daubert test is relevance for “good science.” The reliability prong of scientific evidence is: • 1) whether the scientific theory can be (and has been) tested; • 2) whether the scientific theory has been subjected to peer review and publication; • 3) the known or potential rate of error of the scientific technique; and • 4) whether the theory has received “general acceptance” in the community

B - relevance the particular reasoning or methodology offered can be properly applied to the facts in issue, as determined by “fit.”

Judges “should protect impressionable jurors from experts who lack objective credibility.”

Features of a reliable expert opinion

• state of art technology• literature review • experience • opinion based upon a reasonable degree of scientific certainty.

Credibility of the expert

• Reliance on the person’s resume or curriculum vitae is not sufficient• Establish the expert’s competency and knowledge in the profession

and field (not experience, education, or specialized training) through an examination of the expert’s credentials

• A witness is not deemed an expert until so qualified as such by the court

• able to survive a meticulous cross-examination of the proffered expert witness

• Quality of previous reports/opinions

Federal Rule 26(2-b)

• before an expert witness can offer testimony, that person must provide a written summary opinion discussing the

• testimonial subject matter, • substance of facts and opinion,• basis for opinion, reports, • a list of all publications authored by the witness in the preceding ten years, • a record of all previous testimony including depositions for the last four years,

disclosure statement, report signed by the expert, and disclosing attorney

Evidence Based Medicine

Credentials

• 35 years clinical practice and teaching• Qualifications in medical education• Experience in instructional design and technology (on going Masters)• Publications and research in surgical education• Senior Clinical Examiner(UG) – Birmingham/ Singapore• Examiner PG Ortho Exit exams – Indonesia/Malaysia/Singapore• Examiner Royal College of Surgeons, Edinburgh• Quality Assurance Panel of Visitor in PG ME&T, UK• Core Faculty Member Orthopaedic Surgery – ACGME-I, Singapore• Core Faculty Member Hand Surgery Residency, ACGME-I, Singapore• Fellow - HEA UK, Academy Medical Educators (UK), Faculty of Surgical Trainers Edinburgh• Reviewer for Educational Research Grants HEA,UK• Member of Alexander Health, Research in Education, Singapore• Member of Alexander Health, Medical Ethics Board, Singapore• Visiting Consultant Bangabandhu Sheikh Mujib Medical University, Bangladesh and

Children Surgical Center, Cambodia• Failed medical and digital entrepreneur x 6• Medical Fraud Consultancy/Education – City State Liberty Mutual, Gerling Re and NIAM• 1600 written expert opinion for personal injury in UK (2002-2011)

THANK YOU

vaikunthan@gmail.com