How to Reduce the Re-traumatisation of Claimants in Medico-Legal Litigation Claims

 

The EWI has been provided with a copy of a recently written paper setting out the risk of re-traumatising claimants in medico-legal litigation and proposing reforms to reduce this risk. We have attached the paper and encourage readers to consider it and participate in the discussion.

Summary of the paper

The aim and objective of the paper is to make recommendations “to minimise the risk of re-traumatisation and the potential for causing additional iatrogenic harm during the medicolegal process in personal injury and clinical negligence claims due to claimants being asked unnecessary questions by experts regarding the index event(s).”

The paper examines the perspective of a claimant faced with life-changing injuries, describes the psychological response to trauma, and sets out the psychological and emotional impact of having to recount or relive traumatic experience for the purposes of litigation. The paper notes that these issues arise in part because the demanding clinical caseloads of experts may leave them needing to rely on information from the claimant which could have been obtained from the background documentation.

The authors set out 5 recommendations for industry-wide consideration. We have discussed the reform proposals with the lead authors, who have indicated that these recommendations would apply to cases involving catastrophic or severe injuries where the instructing solicitors are aware that the Claimant may have suffered psychological trauma (i.e. they would not apply in a fast or intermediate track, or lower value claim). They would also not apply in circumstances where there were issues with the Claimant’s veracity or credibility.

The authors propose that the reforms be implemented through, for example, the Civil Procedure Rule Committee or the Serious Injury Guide

The 5 recommendations for reform set out in the paper are:

1. Instructing solicitors should provide experts with sufficient background information to minimise the expert’s need to ask the claimant direct questions about the index event.

2. Experts should carefully review the instructions and medical records before the assessment.

3. Experts should only ask claimants about the index events if there is a clear need to do so.  Only experts with the appropriate skills, training and experience should ask claimants detailed questions regarding the index event(s) resulting in their injuries.

4. Where it is necessary to ask such questions, experts should take care to minimise the risk of re-traumatisation.

5. In most cases, the focus of the assessment should be on the current history and presentation.

Issues for discussion

The EWI supports the principles set out in the paper and the aim and objective of the authors. The paper is a good starting point for a broader discussion among the medio-legal community of the risk of worsening the psychological trauma and the need to work within a trauma informed approach. We have set out below some issues we think could benefit from the input of the wider expert witness and legal community, but welcome views on other issues.

1. The concentration on the claimant side

We note that the authors work primarily on the claimant side. However, the paper’s lead authors have told us that they are engaging with a wide range of stakeholders on the defendant side. We would welcome a broader discussion from both claimant and defendant representatives on the proposals for reform.

2. Prescriptive wording of the reform proposals

The recommendations are worded quite prescriptively and may not be broad enough in their construction to be applied effectively to the wide range of circumstances which arise in different types of litigation and factual scenarios.

In particular, reform proposal 3, as it is currently worded would appear to require the instruction of an expert with the appropriate psychological skills, training and experience to ask detailed questions regarding the index events.  An orthopaedic surgeon, for example, might struggle to provide an opinion if they cannot directly ask the claimant about those events. We would be interested in views as to whether formal psychological training is expected and if a basic understanding of trauma-informed approach could be sufficient. Do you think these expectations should be different for, for example, psychiatrists versus orthopaedic surgeons?

We discussed our reservations about the prescriptiveness of this proposal with the paper’s lead authors who indicated the intention was not to be prescriptive, that experts could still ask questions if they need to, and that there was no intention to have penalties for non-compliance. To make sure that the reforms are clear on this point, they suggested that the wording in recommendation 3 could potentially be rephrased to make it clear that experts would not be restricted from asking the questions they need to ask, but that they should consider first how they should ask those questions and whether they are the right person to be asking them. Clear guidance and reassurance that professionals should still ask any clinically or legally necessary questions—in a trauma-informed manner—could help prevent under-assessment or omission of key details relevant to the court.

There appears to be a need to consider how the legal community might need to adapt its approach in order to accommodate these recommendations. For example, in cases where the facts of the index event are not disputed, it may be helpful for claimant and defendant instructing parties to agree a shared factual summary, allowing experts to rely on this and potentially reducing the need to question claimants directly. Implementing this approach would require a significant cultural and procedural shift among instructing parties and would need collective agreement across the legal profession.

3. The expert’s duty to the court

The overriding duty of an expert witness is to the court. There have been cases where the court has found that the expert had not met this duty because they have not been sufficiently thorough in asking the questions they should have asked. The reform proposals should perhaps be contextualised by a clear statement that experts must ask everything which they consider necessary in order to fulfil their duty to the court.

The paper’s lead authors have indicated to us that the recommendations could include a statement to this effect if stakeholders felt that this was required.

4. For future consideration

The paper concentrates on the Part 35 medico-legal processes which impact claimants. However, there are other interested people who could also suffer trauma, such as the practitioner or other defendant who may be required to recount the index events for a witness statement. The authors might wish in the future to propose that these reforms be reflected in other processes.

Community discussion

We would welcome the input of the medio-legal community, including representatives of both claimants and defendants, on the proposals in the paper, including the initial issues for discussion which we have set out above.

You can join the discussion by completing the EWI survey, commenting under the post on Linkedin or by emailing policy@ewi.org.uk. We will work with the paper’s authors to publish a document setting out the views that have been expressed.