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A Reflection on Life as an Expert Witness during the COVID-19 Pandemic
- Nov 2, 2021
- Latest Journal
As I return to the Somek and Associates Headquarters Office this week, I can hardly believe it has been 16 months since I was last here. It has been lovely to be with colleagues again and to get back into the routine of working once more from a proper office. As I reflect back over the last 16 months, I am incredibly proud of how quickly our company and its experts readily adapted to the “new normal” and how determined everyone has been, to support the timely progression of medico-legal cases. Having been asked whether I think the landscape for the Expert Witness has changed as a consequence of the pandemic, I can offer the following reflections.
The Virtual Assessment
Whilst virtual assessments were not a new concept prior to the first Covid-19 lockdown in March 2020 and had had a role for some practicing clinicians, it was a new method for many expert witnesses in the fields of care, occupational therapy, physiotherapy and speech and language therapy. After consideration of the best virtual platforms to use and ensuring the security of the same, we were able to identify that the suitability of a virtual assessment was dependent upon:
❖ The nature and complexity of the claimant’s condition
❖ The claimant’s knowledge, skills, and abilities in respect of video technology (or the availability of a family member who could assist them whilst also maintaining social distancing guidelines)
❖ The nature and complexity of the specific assessment techniques
❖ The claimant’s context and environment
Whilst virtual assessments were not preferred for situations where the claimant had a significant cognitive deficit or where specific hands-on assessment of muscle tone or objective measurements of grip strength/ range of motion or sensation were required, they did prove very successful for many groups of claimants, particularly in the field of Care and Occupational Therapy. Feedback from our experts indicates that they were able to discuss the claimant’s pre-existing condition and lifestyle, their subjective account of their clinical condition and functional abilities. A discussion of the claimant’s past care requirements was also able to be undertaken in full. Experts also reported being able to objectively assess through video observation:
• Bed, chair, toilet, bath, and car transfers
• Carers hoisting a child from bed to wheelchair/in and out of standing frame
• Stair and step mobility
• Functional abilities e.g. hot drink preparation, play activities
• Dressing/ undressing skills
• Manipulative/prehensile skills (including use of upper and lower limb prostheses)
• Putting prosthesis on/taking it off
• The home environmental (access, room size, wheelchair/mobility accessibility throughout, the suitability of furniture, size of garden and property)
• Speech/ communication and the use of the eye gaze system
• Concentration and memory, with certain cognitive assessments being administrated through screen sharing
Indeed much of the feedback from our experts has been that they consider in the majority of their cases, the information obtained from a virtual assessment was largely on a par with that obtained using a face-to-face assessment method and as such they felt very able to provide a CPR compliant report. That said, a face-to-face assessment will also offer the additional advantage of easier rapport building with a claimant, the tangential observation of how the claimant presents within the context of their own environment (e.g. how they interact and assist their children or cope with their pet). Other environmental observations such as the size or lighting conditions of a room may be less distinctive virtually.
Ultimately the future reliance upon virtual assessments as a replacement for the face-to-face assessment is still to be tested, and there has been a reluctance from solicitors and barristers to rely wholly upon an expert’s report when a virtual assessment took place, certainly in circumstances where the opposing expert undertook a Face-to-Face assessment where understandably they are concerned as to the perception of reduced credibility of a virtual assessment, and a negative impact upon the outcome of the case. I suspect that time will tell on this one as experts and their instructing parties are more familiar with and better at articulating the specific case strengths of the virtual assessment. It would certainly be a shame to simply lose all the experience and intelligence that has been accrued to date.
It would be very interesting to hear of any cases that do proceed to trial purely on the basis of a virtual assessment. Given the need for proportionality and cost efficiency in litigation, I consider the virtual assessment will continue to have an important role in respect of, for example loss of service reports (where there is no disability), or where the claimant has made a significant level of recovery. I also consider it could be a useful alternative to a face-to-face assessment, where a re-assessment is required (the original assessment having happened Face-to-Face) or where a report by a solicitor is required at very short notice and is certainly something that Somek and Associates will continue to offer.
Early Influencing Factors
At the height of the pandemic, with all of our experts being practicing clinicians and often working many extra hours, we were required where possible to support their ability to work clinically by agreeing to the postponement of some of their case deadlines or re-allocation of instructions were agreed by the client. Our clients were always extremely supportive and indeed grateful to our experts. The Coronavirus Act (2020) also mandated that social distancing practice and correct use of Personal Protective Equipment were adhered to. Our robust risk assessment process for face-to-face assessments, and the move to virtual platforms meant that the safety of the experts as well as claimants and their families, was paramount at all times. We stayed regularly in touch with the clients on all of our cases and there was a real sense of us all “working together”.
Timely access to medical records was a challenge at times, with many NHS staff working remotely and staffing levels reduced due to staff needing to self-isolate due to contamination or close contact with a COVID positive individual. We opened up an emergency telephone number for use by experts and claimants in the evenings and at weekends for calls related to their impending assessments and any change in the health status or circumstances of expert or claimant. The COVID protocol also encouraged closer co-operation between parties.
The Experts Meeting
The virtual platform has also changed the nature of some experts’ meetings, with more meetings happening using a video platform than simply happening by phone. This certainly offers the experts a more personal experience and an ability to better detect the effectiveness of the experts in responding to questions put by their counterpart. Another advantage is that some of the joint statement drafting can also happen “live on screen”, as opposed to in the days that following the experts’ meeting. I consider that the virtual platform will continue to play a part in Experts’ Meetings.
Almost overnight our face-to-face conferences became virtual ones and from the perspective of our experts this has been largely successful and of course result in a reduction of costs associated with travel time and expense. Difficulties have occurred with the technology from time to time, but conferences appear to have been better attended by more experts at the same time, undoubtedly because it is easier for many of the busy clinicians to make time for a video conference than the longer time required of their attendance in person. The ability for Counsel or other medical experts to share a document on the screen to further discussion, has made the process much more cohesive and helpful. In the past where experts have been unable to attend in person they have frequently dialled into conference by telephone and it has certainly been our experience that a video attendance is always better than a telephone one for issues of audio clarity and simply knowing when you can interject! I do consider that a large proportion of conferences will continue to be held remotely, even if in part. I equally recognise, that Counsel/ the solicitor may wish to meet their expert in person before they ultimately enter the witness box.
We have had experts who have attended virtual trials and hearings during this time and Somek and Associates has undertaken work with its experts regarding the preparation required of them for a virtual trial and prepared a guidance document covering the environment, access to their documents using separate display screens, dress code, contacting their instructing solicitor during the trial/hearing and of course ensuring that they have their Zoom cat filter disabled! The Academy of Experts produced similar Guidance for Experts giving Remote Evidence.
We are aware that there are still further inroads to be made generally in respect of virtual trials/hearings, from timetabling to access to essential documents. We are however pleased to have been involved in cases that started and concluded within the period of the pandemic to date.
So where do we see ourselves over the months and years ahead? Well we have for the last few months begun receiving new case enquiries/instructions relating directly or indirectly to the COVID-19 Pandemic. From clinical negligence cases concerning the standard of nursing care related to infection control in the hospital environment to, COVID-related respiratory and neurological conditions/ long COVID. We already know that so many people have lost their lives and anticipate an increase in Fatal Accident and Dependency claims.
Of course, there are also cases related to a delay in diagnosis or management of conditions such as cancer. We have not as yet been made aware of cases related to staff from other healthcare departments being moved/ re-deployed to critical care units where they may have lacked suitable knowledge and skill or related to the return to practice via temporary registration with their professional body, of those previously retired clinicians who may not be clinically up to date. Will this be defensible? We anticipate cases in these areas might however emerge over the coming years, along with cases relating to the standards of practice afforded to them by their General Practice Surgery, at a time when video or telephone assessments were used as an alternative to Face-to-Face assessments.
We may also see the impact of COVID-19 in employment related claims whether related to the health and safety of their work environment or expected working practices or related to contractual issues relating to their re-deployment. Access to adequate personal protective equipment claims under The Employers Liability Defective Equipment Act of 1969 are certainly anticipated, as are claims relating to the impact of working conditions on the mental and physical health of those key worker staff on the front line (whether in the NHS, public transportation service, schools, or supermarkets).
On the other side, there may a reduction in litigation due to a reduction in personal injury claims secondary to road traffic accidents, with so many less vehicles on the roads (albeit this is rapidly returning to pre-pandemic levels). Similarly there has been a reduction in the number of elective patient admissions and outpatient appointments and therefore there is likely to have been a reduction in clinical errors. This is coupled of course with the outpouring of public support of the NHS as evidenced by the weekly “clapping for carers” and the messages of thanks in the windows of homes and businesses alike. There is a strong possibility therefore that there will be a reluctance to litigate against the NHS. As an organisation Somek and Associates is well placed to offer quantum and liability experts to provide reports on such matters and are continuously reviewing the demand in specific specialist areas to ensure we have the right capacity and expert skill set.
As an organisation we wish to support the Legal Profession as these cases progress, and judgements are handed down and although this year has brought considerable challenges, we do at Somek and Associates feel proud to be such an integral part of the shaping of legal history.
Jessica Thurston, (MSc Occupational Therapy, BSc (Hons) Occupational Therapy).
Jess is Chief Operating Officer and Care and Occupational Therapy Expert Witness, Somek & Associates Ltd.
Somek & Associates is one of the largest providers of Expert Witness services in the UK, and has over two hundred experts, which include, occupational therapists (care experts), nurses, midwives, physiotherapists, speech and language therapists, and other allied health professions.