If I assess a Claimant as part of a medico-legal expert assessment, do I need to prepare records?

Being a specialised healthcare solicitor for over two decades means that I have supported thousands of healthcare clients on  a broad range of matters in the UK and in Asia  ranging from regulatory defence (mainly General Medical Council and General Dental Council), clinical negligence claims, inquests and even manslaughter cases. Over the years in my role as a healthcare solicitor, I have instructed thousands of experts to carry out medico-legal assessments . In my separate role of training expert witnesses, I have always suggested that experts make records when carrying out assessments and keep those records until the case is complete.  

The reason for that is because following an expert’s assessment, reports are written (and thereafter finalised with instructing solicitors) many weeks, sometimes months, after the assessment. It is essential  that accurate and factual notes are relied upon when compiling accurate expert reports. I have had a few cases where Claimants complained via their solicitors that the Defendant expert that I had instructed had wrongly recorded their history or they have challenged a factual inaccuracy. Therefore,  experts should safely retain records in the event there is a later challenge which might follow by way of Part 35 questions upto 28 days following disclosure of their report to the other party. 

 My top tips for experts to ensure accuracy of their records are as follows:

Tip One 

Always prepare the record as soon as you can following the assessment/interaction. There is no mandatory time limit for making a record but it is always best to prepare when the events are fresh in your mind. Memories fade quickly, especially with multiple patients being assessed and sometimes intervening events occur. Delays can affect the accuracy and reliability of a record and, crucially, inaccurate/incomplete records mean that the credibility of the maker of the record (you in the capacity as an expert witness!) can be called into question should there be a challenge. 

Tip Two 

Be mindful that the patient (or their carers/relatives/solicitor) might request/read these. Avoid inflammatory and inappropriate comments which might be perceived to be unfair by a  patient. Always be prepared to have the record scrutinised and never include anything in the record which you cannot justify from a factual perspective.  

Tip Three

Never amend a record if you receive a challenge to the factual accuracy of your report.  Retrospective amendments of records can sometimes be permitted on a legitimate basis, for example, if you spot a factual error such as a date error but it must be crystal clear on the face of the record itself what was amended, when and, importantly, why. Be ultra cautious, always,  otherwise this can lead to all kinds of problems later down the line as to motive,  honesty, accuracy and your credibility…beware! I have seen an expert face hostile Part 35 questions from a Claimant as to why his record made in the actual consultation was missing key information and crossed out. 

Tip Four

Never get drawn in to advising the patient in the consultation. Remember your role as an expert is to prepare an expert report to those instructing you. If part of that instruction is to advise on condition and prognosis including treatment options, then your expert opinion is to included within your expert report. Such advice is not to be included in your assessment record and not to be provided to the Patient – you are not advising as a treating dentist/doctor.  This is an important distinction to remember. 

Tip Five

Check your record before you save/leave it.   I do fully understand the pressures and demands of  busy healthcare roles combined with the demands of expert work too because I have instructed so many experts over the years. The record could potentially help protect you in the event questions are raised and/or you are criticised for a purported inaccuracy that formed part of your assessment especially if that inaccuracy was relied upon as part of your opinion.  You would want to refer back to your record to illustrate why you believe that it was accurate at the time that information was provided to you. 

Practical examples

I can immediately think of two cases where experts that I had instructed were challenged by the Claimant. The first was an expert who had confirmed there was no impairment as the Claimant had alleged. The Claimant disputed the report and said the expert had performed a ‘cursory rushed examination’ lasting less than 5 minutes. Fortunately, the expert had made detailed notes of the time of the arrival of the Claimant, the time of his history taking, the time of his expert assessment and those notes were disclosed to challenge the Claimant’s credibility. Documenting these times can often be very helpful. 

The second instance is where the Claimant gave a history of pulmonary embolism to the expert and the onset/severity of the chest pain was completely at odds with the Claimant’s case. The expert asked the Claimant if it was correct as he wanted to check that he had understood correctly. The Claimant confirmed that it was correct and the expert documented the discussion in the assessment record (specifically that they check with the Claimant they had understood the position correctly). The expert’s records were disclosed when the solicitors challenged the expert’s report. The case subsequently discontinued. 

To summarise, the record made for the purposes of an expert assessment is of course made for a different purpose to an actual treating professional’s assessment record. However,  it is still just as important that it is accurate and kept during the lifetime of the claim (and potentially beyond).

Lisa Nabou