In claims for personal injury, medical professionals have an important role to play. They give opinion evidence within their area of expertise and in doing so must satisfy their duty to the court as set out in the civil procedure rules and case law. Briefly put, the evidence they give is to help the court make its decision. It must be independent, objective and unbiased. They should consider all material facts, including those which might detract from their opinion, and where there is a range of opinions amongst their peers they must state what that range is and give reasons for their own opinion. Importantly, and something that is perhaps forgotten by some experts, this duty to the court overrides any obligation to the instructing or paying party - they should not act as an advocate.
The court is not, however, bound to accept the opinion of the expert or even give permission for their evidence. Quoting Judge Truman in the Court of Appeal case Griffiths v TUI (UK), Lady Justice Asplin aptly stated: “…the court is not a rubber stamp”.
Keoghs has increased awareness and knowledge in this area and has developed appropriate strategies to investigate and challenge poor quality medical evidence. We previously reported successful outcomes where medical evidence has been challenged; for example the case of AD v Haven Insurance Company Limited in which a claim for alleged permanent injury and significant past and future losses valued at £166,000 was dismissed and found to be fundamentally dishonest, resulting in the recovery of £19,600 in costs.
A significant trend is the increasing number of claims for psychological injury where diagnoses of significant conditions such as post-traumatic stress disorder are made with the uncritical acceptance of subjective evidence and little, if any, consideration of other relevant evidence such as medical records. One of the drivers of this behaviour is the reforms leading to the OIC and the increase in the small claims limit. In particular, a ‘minor psychological injury’ is not defined in either the Civil Liability Act 2018 or Whiplash Injury Regulations 2021, and it is anticipated we will see more psychological reports in the future. This makes it imperative that insurers have strategies in place.
However, claims for psychological injury present something of a specific challenge to claims handlers and lawyers alike; particularly in the lower value, high volume space where incidences of such claims are increasing but where knowledge is perhaps lacking. Here we look at three claims in which we pursued a multi-claim strategy to challenge the medical evidence of a specific Consultant Psychologist, resulting in judicial criticism, the rejection of his evidence, and the dismissal of the claims for psychological injury.
Following a review of multiple claims assisted by our data analysis tools, it became apparent that the expert in question was producing reports which were remarkably similar and predominantly contained a diagnosis of PTSD, anxiety, and depression. He conducted his examinations by telephone and rarely had sight of medical records. Where he did have the records, he did not give them proper consideration. We, therefore, ran defences that the medical evidence had not been prepared to the standard expected by CPR 35 and pursued a strategy of detailed and focused Part 35 questions and applications to cross-examine the expert.
Following a road traffic accident, a claim was pursued for minor short duration physical injuries and PTSD, generalised anxiety and depression. The claimant had significant pre-existing psychological symptoms but the expert’s review of the medical records was cursory and failed to take any proper account of her medical history.
At trial it was submitted that the medical evidence was contradictory and fatally flawed to the point that the court should not rely on it. Furthermore it couldn’t establish that the psychological symptoms were attributable to the accident on the balance of probabilities.
The whole claim was dismissed as unproven with the judge rejecting all the medical evidence. It was noted that the expert evidence was “at odds with the GP notes” and it was difficult to see how the expert reached their conclusions. In rejecting the evidence, the judge stated: “The burden of proof still rests with her and it is for her to place before the court medical evidence to corroborate her claim. The medical evidence as to her psychological injury I find it to be too contradictory and just incorrect as to be such that the court can place any weight upon it. I therefore reject the evidence”.
The claimant here was the passenger in a vehicle which swerved onto the opposite side of the road into a head-on collision with another vehicle. A claim was made for physical injuries and, once again, PTSD, generalised anxiety and depression. There was also a claim for tinnitus – an increasingly common addition.
Following Part 35 questions, we applied for and were granted an order that the expert attend trial for cross-examination on the basis that the evidence appeared inconsistent, flawed and a breach of his duties to the court. At trial following cross-examination the judge said: “I must say that I am troubled by [the] report, most notably by a lack of detail and analysis ... [it] does not scratch beneath that to evaluate the claimant’s clinical history … there is no explanation for the prognosis period… and offers no detailed reason for such an opinion… His oral evidence was that he has since received further training and developed his reports, but that simply does not excuse errors or poor expression in terms of language”. Significantly, the judge went further: “I found his oral evidence was such that he was seeking to act more as an advocate at times for the claimant”.
The claim was dismissed in full, including the claims for physical injury and tinnitus. Regarding the psychological injury the judge said: “I consider the evidence… completely unreliable, and I place no weight upon it, and in doing so I find that the claimant fails to be able to submit evidence in support of the psychological injuries”.
The claimant in our third case was a passenger in a vehicle struck by another emerging from a side road. The claimant pursued compensation for physical injuries and, unsurprisingly, PTSD, generalised anxiety and depression. We once again challenged the evidence by way of Part 35 questions but didn’t apply for the expert’s attendance at trial due to short timescales. We nevertheless submitted that the evidence should be rejected.
The claimant was found to be an honest witness and succeeded in proving that she suffered physical and minor psychological injury. However, the claim for PTSD, generalised anxiety and depression was dismissed with rejection of the medical evidence of the psychologist: “I am much more troubled by the psychiatric evidence… [he] hasn't taken great care over his report… he did not see the claimant face to face… I am not satisfied that the expert prepared his report with care or attention…. I cannot find the report reliable. There are a number of questions posed by it and it is too unreliable”.
In such cases the claimant has the burden of proving their claim on the balance of probabilities and it is not necessary to prove that an expert is wrong, just that their evidence is defective and unreliable. The medical evidence should be properly analysed and its merits assessed for avenues of legitimate challenge. By developing and deploying appropriate strategies the Healthcare-Enabled Fraud team at Keoghs has raised judicial awareness of these issues. This has resulted in suitable case management to allow proper challenge at trial leading to successful claims outcomes and useful judicial comment.
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