Australia: Tips for briefing medical experts in personal injury cases

Expert medical evidence is crucial in all personal injury cases, but it is always difficult to predict exactly what evidence a court will accept. There are several steps that can and should be taken to improve the likelihood of particular medical expert evidence being accepted, which include choosing the 'right' specialist with appropriate expertise and ensuring that he or she has been appropriately briefed.

In this article we provide five practical tips to consider when choosing and briefing an expert to provide a specialist medical opinion.

1. Selecting the right expert

In choosing an appropriate medical expert, it is important to consider the injury, including the symptoms reported by the claimant, for which the expert opinion is required. For example, in relation to a back injury, a neurosurgeon may be a more appropriate expert than an orthopaedic surgeon depending on the claimant's report of sciatic symptoms. In the case of a head injury, a neuropsychological rather than psychiatric review may be more suitable. Some consideration should also be given to the expert the other party (or parties) will be obtaining evidence from. In some instances, it is appropriate to wait for other parties' evidence to be obtained and reviewed before you seek further expert opinion.

The chosen expert must also have the relevant qualifications and expertise, as well as up to date industry experience for his or her evidence to be accepted. The following cases are just three examples that serve to demonstrate this principle:

• In Lewin (by her litigation guardian Lewin) v Gould [2014] QDC 231 (Lewin), the District Court of Queensland did not accept an orthopaedic surgeon's evidence as he had not practised orthopaedics since the early 1990s (more than 20 years before his evidence was given) and did not have the relevant expertise in paediatric orthopaedics when he did practise.
• In Sintiris v Telstra Corporation Ltd [2012] AATA 900, a treating orthopaedic surgeon's evidence was accepted over that of a vascular surgeon and general surgeon with respect to a knee injury.
• In Austin v Parmalat Australia Ltd [2013] QSC 227, the Supreme Court of Queensland was not convinced that a neurosurgeon had the appropriate expertise to diagnose cognitive deficits from a closed head injury and traumatic onset of epilepsy. Further, the Court found that a clinical psychologist did not have the expertise to provide medical opinions in relation to the plaintiff's alleged cognitive deficits.

2. Providing instructions and supporting documentation

A detailed letter of instruction should be provided to the expert setting out the date of injury, mechanism of injury, nature of the injury and initial symptoms, limitations and restrictions previously reported by the claimant. Some experts also like to be provided with a summary of the existing medical evidence, but they will still be expected to read and 'interpret' these records themselves when forming their own opinion.

Asking the expert to answer specific questions relevant to the injured person's precise circumstances and injury will assist in ensuring the expert addresses all relevant issues. Together with general questions regarding diagnosis and whole person impairment, the specialist should, if necessary, also be asked to consider the mechanism of injury as well as any pre-existing or subsequent conditions, injuries or illnesses (including the current or future impact they may have). In these circumstances, the expert should be asked to apportion any whole person impairment to any other non-incident related injury, illness or medical condition. If factual issues are in dispute, the expert can be asked to provide opinion on the basis of various factual assumptions.

Taking into account the specific questions asked of the expert, all relevant documentation held on file should be provided with the letter of instruction. Generally this includes all claim documents, pleadings (statement of claim, defence and statement of loss and damage), medical reports and medical records, prior claim files, pharmaceutical benefits scheme history and any other relevant documentation. It is always preferable that, if obtainable and depending upon the specialist briefed, copies of relevant imaging (from before and after the incident) be provided to the expert. If causation is in issue, all witness statements, incident reports and other relevant documentation outlining how the incident occurred should also be provided. The expert's attention should be drawn to anything specific in the documentation upon which comments are sought.

If further documentation is obtained during the course of the claim which may alter the expert's opinion, it should be provided to the expert for their comment.

3. Timing of the review

Most medical evidence is obtained once the claimant's injuries are considered to be stable and stationary during the pre-proceeding stage. However, where a matter looks like it will be protracted before proceeding to trial, it is appropriate to consider arranging a further medical review and obtaining a supplementary expert report before certifying the matter ready for trial. This will help to ensure that the relevant evidence is up to date.

4. Expert evidence rules

Where a report is being sought in connection with actual or expected litigation, it is important to ensure that the expert's report complies with the expert evidence rules contained in Chapter 11, Part 5 of the Uniform Civil Procedure Rules 1999. While most medical experts who provide medico-legal evidence are aware of their obligations under the rules, it is not appropriate to simply 'remind' the expert in the letter of instruction. The obligations should be highlighted and made clear.

5. Content of the report and expert evidence at trial

There are lessons to be learned from the Lewin decision, in which the relevant orthopaedic surgeon's evidence was found to be based on factual inaccuracies. As a result, reliance on his evidence was seriously eroded.

An expert's report will generally set out what the injured person has reported to them in relation to mechanism of injury, symptoms, limitations and restrictions and the documentation referred to. If any factual statements or assumptions made by the expert appear to be inconsistent with any other documentation or reports made by the injured person, either before or after the review, the expert should be consulted again to comment further or clarify their opinion.

Ultimately, following these five steps and undertaking extensive proofing prior to trial can safeguard against any 'surprises' on the day, and help to ensure that the expert's opinion and evidence are clear and more likely to be accepted by a court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.