Rule 31.36 UCPR 20005, states that at the commencement of professional negligence proceedings (excluding a claim against a legal practitioner), an expert report must be filed with the Statement of Claim, unless the Court orders otherwise. If this is not complied with the Court may dismiss, the whole or part of the proceedings, either on application by one party or the Courts own motion.
More than one expert may be required by a party in the proceedings to give evidence on a particular issue or issues, but the number of experts will be limited (Practice Note No. SC CL 7). Therefore, as PI or med neg lawyers we are required to speak with, brief and conference with experts as part of managing, supporting and progressing our cases. How do we get the best out of experts? Here are 9 simple tips…..
We want to make sure we minimise the harm to our clients by the adversarial court process, so we need to know how we manage clients, particularly those who genuinely have a psychiatric illness or PTSD. Everyone will have their own methods in briefing and dealing with experts on behalf of their clients, so these tips are provided, with that understanding;
- Ask the expert only about the usual liability, causation etc questions. In addition, if the client has a psychiatric illness ask the expert how best to run this case in consideration of the clients psychiatric illness. Collaborate with the expert to explore ways to prove your case without further detriment to the client.
- Inform the expert of the weaknesses in your case as well as your side of ‘the story’, at the outset. This will decrease time and the chance that the ‘weaknesses’ will be put to the expert for the first time at hearing, which could prove disastrous.
- Direct the expert to the following foundational areas that require an expert opinion. This list can be useful in all PI and med neg cases, however, parts are particularly applicable when the client has an alleged psychiatric illness or PTSD;
- identifying data;
- source of information
- history of the event/accident
- post accident course (medical/surgical course and functional assessment)
- past history (legal, medical & psychiatric)
- family medical and psychiatric history
- personal history and life events
- mental status
- independent information from reliable others
- summary and formulation
- prognosis. [Hoffmann BF, How to write a psychiatric report for litigation following a personal injury. AMJ Psyc 143:164-9, 1986]
- Organise, bind and provide clinical notes chronologically, paginate & tab, a brief case summary and any agreed facts.
- If its your usual practice provide a “Provisional Statement of Assumptions” i.e. “these appear to be salient matters from the notes, please peruse to determine factual basis of provisional assumptions.”
- Be specific in the letter of instruction, especially if there are voluminous documents being provided i.e. (Box 1 contains X, Box 2 contains X etc) which includes not burying important information in other documents, hoping they are not going to be found.
- Provide the expert with critical and crucial information prior to the clients consultation and report provided. If you wait until some months after to provide crucial information, it will be much more difficult for the expert to remember and focus attention on this crucial information, they have seen many patients in the interim.
- Ask your expert to comment on the other sides report, expert and reference literature.
- Organise phone conferences with your expert and barrister, when required, even prior to the provision of a report, if necessary.
Compliance with Rules 31.37 – 31.45 UCPR 2005 is essential when managing experts and expert reports, even with respect to the service of supplementary expert reports. A supplementary expert report, which is often a source of contention in proceedings is defined in Rule 31.34 UCPR
Make it as easy as possible for your experts to assist and support you and your clients.
If you require a technical barrister to assist you in your med neg or PI cases, contact Louise on (02) 9336 5399 or firstname.lastname@example.org. Louise was employed in medicine for 15 years prior to law in ophthalmology, urology, plastic and reconstructive surgery, neurosurgery, nephrology and gynaecology/obstetrics.
Sign up to my med neg/PI or family law blog at http://www.sydneybarrister.net.au so you never miss a post!