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Finding a physiotherapy expert
  • Jun 10, 2020
  • Latest Journal

Sometimes it can be difficult to locate the right expert physiotherapist, and whilst some will belong to various directories, the majority will belong to the Medico Legal Association of Chartered Physiotherapists, which has over 200 members undertaking a wide variety of medico-legal work. MLACP members can demonstrate that they are currently educated, trained and competent in medico-legal report writing to be eligible for inclusion in the Directory of Members. Those listed are not endorsed by the Association, but have agreed that solicitors may contact them directly to discuss their client’s expert witness needs.

Physiotherapy is a profession supplementary to medicine, and physiotherapists are independent practitioners bound by a code of professional conduct and standards in the same manner as other medical professionals. Physiotherapists use a range of physical, cognitive and other interventional approaches to restore, maintain, improve, or manage the planned decline of movement and activity in individuals caused by ageing, disease, injury and/or disability.

The statutory regulator for physiotherapists is The Health and Care Professions Council. Physiotherapy has been a fully autonomous diagnostic profession since 1977. The titles ‘physiotherapist’ and ‘physical therapist’ are protected by law and only those listed on the relevant register held by the Regulator may practise using a protected title. Some physiotherapists may also prescribe Prescription Only Medicines (POMs) for their patients, including some controlled drugs.
 
The degree to which an individual physiotherapist will undertake diagnosis of their patient’s presenting condition will depend on their experience and job role, and whether they are able to request and/or interpret diagnostic imaging investigations to assist with their clinical decision making. However, all physiotherapists are required to make a differential diagnosis and plan the management of their patient’s condition independently of other medical professionals, and in accordance with regulatory requirements and good professional practice.

Commissioning an Expert Report
There are many different types of report that solicitors might ask an expert physiotherapy witness to produce. Each will have their own particular requirements and the solicitor must be clear what type of report they require and are asking the expert to write to ensure that their report complies with the relevant rules and fulfils the client’s needs.

Costs are often unnecessarily incurred through a failure to adequately sort and annotate the document bundle and to be sufficiently precise in the issues to be addressed by the report. In the initial stages it is often wise to seek advice prior to the commissioning of a full report:
Advice Notes
Solicitors may ask for brief advice from an expert before deciding whether to accept a case. This may be a short letter or a desk-top report giving an opinion as to whether there is merit in pursuing a clinical negligence claim.

Solicitors may also ask for brief reports at a pre-litigation stage to enable them to write a Letter of Response to a claim. This can be common in NHS work which is managed through the NHS Litigation Authority. NHS Resolution specifies that reports should not contain a detailed outline of events, specifying the basis for the claim and limiting the length of the report to 3 – 4 pages with a maximum cost set at the outset.

Clinical Negligence Reports
These are independent reports which are used as evidence in cases of alleged clinical negligence. Such reports must meet the requirements of the current Civil Procedure Rules (Part 35). Physiotherapy expert evidence provided for the civil courts is tested to the civil standard of ‘on the balance of probabilities, more likely than not’. Experts can be instructed either by the claimant or the defendant (or their insurers) or in some cases a Single Joint Expert is appointed to act for both sides.

Liability reports:
In order to establish clinical negligence both breach of duty and causation must be proved. Sometimes separate ‘Breach of Duty’ reports may be requested in order to limit unnecessary costs, because if breach of duty of not proven establishing causation is not necessary. A liability report will give an opinion on the standard of care provided and whether a failure to act as ‘a reasonably competent physiotherapist’ contributed to causing the alleged harm. This failure usually takes one of two forms:

Action: A rugby player attending a physiotherapist complaining of shoulder pain and muscle spasm was treated using a number of techniques including acupuncture. Shortly after treatment he experienced acute breathlessness and attended hospital where a pneumothorax (punctured lung) was diagnosed. This is a known risk associated with acupuncture of that area, and is a result of poor technique. In addition the patient had not been warned of the potential adverse outcomes of the treatment

Inaction: A 43-year-old plumber slipped and twisted his knee. He was seen by a physiotherapist following referral by A&E. Testing of the joint was suggestive of both cartilage and ligament injury. Exercises were given and the patient was reviewed after 2 weeks at which time there was slight improvement but the patient was still unable to work. Further exercises were given and another review arranged. This process continued for two months during which the patient was unable to work. He was eventually referred to the orthopaedic department, scans were organised, and he was listed for urgent repair of the anterior cruciate ligament and resection of the cartilage. The claim alleged correctly that referral should have been more timely resulting in loss of wages and a less favourable outcome of surgery.

Failure to advise: One of the most common claims results from a failure to advise patients with central low back pain of the risks and symptoms of spinal cord compression (cauda equina syndrome) which is a condition requiring immediate surgery. Symptoms include loss of bowel or bladder control and loss of sexual function, and these can become permanent if action is not taken within a reasonable timeframe.

Condition and Prognosis Reports (Quantum) and Physiotherapy Needs Reports
To establish the amount of damages that might be awarded if a claim for clinical negligence is successful, accurate costings are a vital part of the report and may have a significant impact on the amount of any damages awarded to a successful claimant. Physiotherapy quantum reports typically involve a consideration of past, current and future physiotherapy costs, equipment costs, and other costs that may be associated with helping the claimant achieve a lifestyle as close to their pre-injury life as possible. Any report needs to consider all of these elements factored in for the normal expected life time of the patient.

Independent reports may be used for ensuring that the needs of vulnerable adults and children are met as part of health, social service or educational provision clearly stating current and future physiotherapy needs including equipment and including costs for the length of time required. The nature of the report may vary depending on what purpose it is to be used for. They may be requested by a solicitor, or can be commissioned by parents of children with special educational needs, or advocates for vulnerable adults.

All reports should include a clear physiotherapy assessment so that it can be clearly seen on what basis recommendations are made.

Whiplash Injuries
All whiplash claims are now managed through a central portal run by the not-for-profit company MedCo. All physiotherapists who wish to write whiplash reports must be accredited with MedCo either as an independent expert or as part of a larger medical reporting company. There are rules in place for the fees paid for this type of report and how claims are managed.

Tribunal Reports and Reports for Criminal investigations
Physiotherapy reports can be used in Tribunal settings such as Employment Tribunals; in Regulatory Tribunals such as fitness to practice hearings held by The Health and Care Professions Council (HCPC), and as evidence in criminal cases. Physiotherapy expert evidence provided for the criminal courts is tested to the criminal standard of ‘beyond all reasonable doubt.’

An expert physiotherapy report for criminal proceedings may be asked to give an opinion on a range of physiotherapy matters. For example, whether a defendant was capable of committing an alleged crime based on the existence of some physical injury or disability, or whether behaviour that a complaint believes is inappropriate amounting to some form of assault is acceptable professional behaviour.

Cases are thankfully infrequently brought against physiotherapists, and when they are the accusation is usually ‘assault by touching’. It is frequent for these cases to fail in the Crown Court where no expert physiotherapy witness is called, but for the physiotherapist to be sanctioned by the HCPC at a Fitness to Practice tribunal where expert opinion is properly sought.