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The Future of the PI Expert Witness 2021
- Dec 29, 2021
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There is an old Chinese curse ‘May You Live in Interesting Times’ and for PI medical experts the last few years have been very interesting. Experts have been jailed for contempt of court, sued for tens of thousands of pounds and subject to a barrage of criticism from the courts. At the same time fees have been falling as solicitors and agencies take an increasing cut of a fee that has not changed. It is not surprising that experts have been looking for easier ways of earning money and are becoming risk adverse. There are many roles that are less interesting and place higher value of the sorts of skills that PI professionals have.
As a senior PI expert I have helped many colleagues improve their reports and make them robust through my MERA type audits. Improving reports is not easy because doctors and physios are busy and find it difficult to keep up to date in their own profession, never mind the law. Legal changes are rarely easy to understand even for lawyers and knowing that there is a problem is not the same as being able to find a solution. Experts find the advice given by lawyers difficult to put into practice and thus have seen them as the opposition. It can feel to experts that they are being sniped at from the side-lines by lawyers who have never written an expert report themselves.
Solicitors are also under increasing pressure and whilst there are bad apples in both professions, they are mostly trying to help experts. Solicitors are understandably short tempered with experts who cannot find a solution to their problems. Part of their frustration is that they do not know how to solve the issue either and are hoping that the expert has the answer. Lawyers increasingly feel that whatever they do the third party will raise complaints such as fundamental dishonesty. As changes to law whittle away at the bottom-line cutting corners is the only way to survive. This makes good lawyers feel sad because they want to do a good job.
Getting out of PI.
Many professionals are already taking the steps needed to get out of PI work such as moving into other areas of law and many will not return. Gradually depletion the stock of high performing professionals has occurred in many areas of society. Education and health were previously the envy of the world and are now better known for failing schools and hospitals. The legal system has also suffered cuts with legal aid at its lowest level in living memory. Legal aid was first introduced in 1949 with the welfare state when arguably the UK was poorer than it is today. How we could afford more in the past when we had less money is a reason for unhappiness generally e.g. student grants.
The law is at a crossroad, it can either adapt to the changes and push an agenda of high quality and professionalism or allow changes to cause dumbing down. There will be (or is) a haemorrhage of the brightest and best or a refocus on what is important. Those professions who have allowed the tick box culture to destroy their professionalism are now working in clouds of toxic stress. My own profession – general practice is now dominated by peripatetic GPs moving rapidly between practices trying to reduce their exposure to stress and to survive. GP partners, long the backbone of the NHS are leaving and their numbers falling when for instance consultant numbers are increasing.
There is only one solution that will turn the tide and re-establish the confidence of demoralised PI professionals. It is only when a profession goes back to its fundamentals and fights against the purposeless work can motivation return. Purposeless work is a scourge on our industry and largely imposed by faceless bureaucrats. GPs and solicitors have both tried to keep their heads above water by employing ever growing teams to perform those tasks that have no purpose apart from achieving targets. In PI these teams provide a barrier between the professional and the claimant so both the professional and the claimant interact with these middle people. Their needs get lost in translation and one-size-fits-all solutions.
Back to fundamentals.
At the heart of all the regulations and protocols and guidance is the medical expert report which is used by the court to determine the injuries. It is easy to get lost in the noise of the advice and miss the point that is fundamental to any good report. The medical report should be fit for the purpose which it is required. Any product which is defective should be withdrawn and replaced with one that it is not defective. This does not happen in PI leaving many claims supported by a report that does not address the material issues. Often the authors of those reports believe that their reports are of a good standard and are upset when they learn that they have failed.
The claimant should be at the heart of the process, in management theory the lawyers and the experts should serve the claimant. As both experts and solicitors cut corners the amount of time that is given to the claimant decreases. Experts may complain that the claimant’s do not understand the purpose of their report and solicitors that the claimant forgot to mention key facts at the examination. The claimant is confused by a process that involves thousands of letters but no human being to explain what is going on. As the system moves to unrepresented claimants with a computer that says ‘no’, dissatisfaction is likely to increase.
Justice should not only be done but seen to be done, without a clear idea of what winning looks like some claimants will have over optimistic views of the outcome. Some professionals with laugh at the claimant who values their claim at £1M for a simple RTA but the judge trying to deal with this claimant will not see the funny side. Having a complex system is not a problem whilst there are lawyers to guide a claimant through the process. I hope that we are at ‘peak law’ because if the systems get any more complex even the judges will struggle to make sense of it. There is a need to consolidate laws and guidelines rather create new ones to fix the problems. Sometimes the simple and wrong answer is better than the complex but unobtainable one.
Becoming a happy expert.
For many working in PI the concept of happiness is about as foreign as the idea of having a work-life balance. Weekends increasingly have been sacrificed for the SLAs that appear to have no useful purpose apart from keeping MROs in business. The frustration of an expert is easy to understand when they have provided a report within 72 hours has sat on the lawyer’s desk for 18 months. Of course the case will now be urgent and the expert asked if they can get it back by 16.00. For experts with a day job and a family this may mean cancelling a desirable (but not important) activity such as seeing their children grow up.
Some experts realise that the cumulative weight of these unreasonable demands causes a growing dissatisfaction with their job. Cutting corners is not the answer because the reward of doing a good job is then lost. Getting angry with the claimants or the solicitors equally robs the expert of the enjoyment that pleasant social exchanges offer. Some will get out but others will continue to work despite their increasing cynicism as burnout increases the emotional weight of working. The answer for the PI expert to avoid this fate is simple, focus on quality.
The expert who is able to ignore speed and cost as issues is freed to enjoy the professional challenge in PI work. At first this feels like yet another target but soon the expert is able to see that focusing on quality gives all the benefits and none of the burdens of a micromanaged industry. To some this will seem counter intuitive, if experts produce high quality reports then they will earn less money. Money is happiness isn’t it? Rewarding an expert for good reports rather than for producing cheap poor-quality reports is good for the industry as a whole. Experts need to take the lead by arranging independent audits, challenging rules that encourage poor practice and working slower (so they can say hello to their friends and family).
“If you find yourself in a hole, stop digging" is good advice and for experts it means stop chasing targets that have little or nothing to do with their product. The expert report is a chance to assist the court by setting out the facts and giving opinions on the material issues before the court. At its best it is a document that survives unscathed throughout a prolonged legal process and makes settling the case straightforward. At its worst it spawns satellite litigation which drags on for years before an unpleasant outcome befalls the author. Even an expert who is successful at defending litigation will not describe themselves as happy.
The report must stand on its own without clarification or additions and must foresee the way that the case will go. This is a lot to ask but the best reports are both robust and fair and these experts are rightfully proud of their work. Being happy is not difficult, do something that you enjoy and know that you are doing a good job. Pride in one’s work along with getting on with other people are two of the main pillars that make a job worth doing. I have written about how to achieve these outcomes. My book makes it clear that writing a great medical expert report is not easy, because it is a challenge.
Having professional challenge means keeping learning in that area just ahead of what you know. For some the enormity of what they do not know is too much, for others they believe that they already know everything so there is nothing left to learn. The Art of PI Medical Report Writing was written for those humble enough to accept that they have more to learn who still have the courage to learn more. I hope that it will offer the PI industry a path towards a future where those working in the PI industry will receive rewards. They should not be distributed equally but to given on the basis of quality. The alternative is that the beatings will continue until the morale improves.