Monday, 12 December 2016

Expert Opinion In Whiplash Claims

My short post on the irrationality of some of the Government’s “whiplash” proposals prompted this response from Richard Rawlins, Consultant Orthopaedic and Trauma Surgeon.  It is a timely contribution on the use of expert evidence in minor whiplash claims given not only the consultation but also the recently reported settlement and subsequent defamation claim involving an expert witness, Dr Grace Kerali.

I welcome contributions to my blog from those who have particular insights to share. Richard’s views are his own. I am sure they will provoke debate.


In his Foreword to Reforming the Soft Tissue Injury (‘whiplash’) Claims Process, Lord Keen advises: “The government is bringing forward a package of measures to crack down on minor, exaggerated and fraudulent soft tissue injury (‘whiplash’) claims stemming from road traffic accidents (RTAs). The reform package announced in this consultation will save the industry around £1bn a year…”

Finance is important, but as a medical expert witness, I am concerned about medical practice, and the requirement that experts should be unbiased.

Evidence Based Medicine

Modern doctors are enjoined to be as scientific as possible, yet it is only little more than 20 years since the evidence based medicine working group announced a ‘new paradigm’ for teaching and practising clinical medicine. Tradition, anecdote, and theoretical reasoning from basic sciences has been replaced, in so far as is possible, by evidence from high quality randomised controlled trials and observational studies, in combination with clinical expertise. ‘EBM’ is now the mantra and scientifically grounded doctors do their best to base their opinions on corroborated facts.
Which is all very well until we consider patients whose allegation is pain, suffering and loss of amenity (PSLA) affecting the muscles, ligaments, tendons, and nerves of the cervical spine, as a result of a road traffic accident. Often described for the alleged mechanism of injury as ‘whiplash’ by definition, bony integrity is not breached.

The Veracity of a Patient’s Account is for the Court, not The Expert, To Determine

I can find statistics to support any contention, and contentious the diagnosis of whiplash certainly is. The term is a colloquialism - there is no satisfactory International Classification of Diseases (version 10) classification. ‘S16.1XXA - Strain of muscle, fascia and tendon at neck level’ is probably best for injuries not involving bones. And the diagnosis is almost entirely dependent on the patient’s history.

For all their scientific scepticism, doctors are inclined to trust that patients will give an accurate account of their condition. How else can the cause of their problems be treated? But ‘whiplash’ rarely benefits from any treatment at all, and doctors mostly become involved only at the behest of the ‘claims industry’. Support and TLC always helps patients, but formal counselling and physiotherapy rarely provide more than entertainment whilst time passes.

If a patient asserts they are suffering, there is no test which will prove they are not. And that is all a medical expert witness can say about the matter. Doctors do not take histories under oath, do not cross examine forensically and are not trained to judge demeanour let alone malingering - except in the most egregious cases. Doctors acting as experts to the court might well be suspicious of exaggerated or fraudulent histories, but in the absence of any further and better information, we are obliged to report ‘on the balance of probabilities’. The veracity of a patient’s account is for the courts to determine.

The Logical Fallacy of Insisting on a Medical Report

This lax lacuna allows dishonest people to take advantage of the generosity of our altruistic society to gain compensation. But as our Learned Friend pointed out in his perspicacious posting of November 17th 2016, some of the proposals by the Ministry of Justice, might have merit - such as raising the small claims limit for personal injury claims.  Other proposals could “create farcical inconsistency and unfairness.”

Lord Keen’s forward goes on: “At the moment there is simply too great a financial incentive to make claims for whiplash…. This consultation paper proposes that compensation for pain, suffering and loss of amenity (PSLA) for minor whiplash claims will either be removed entirely or replaced by a fixed sum….other measures include banning the settling of whiplash claims without a medical report from an accredited medical expert.” 

This proposal presents a logical fallacy, as it begs the question (petitio principii, if you prefer) - as by whom such a ‘medical expert’ is accredited; what the basis of such accreditation might be; and what the purpose of the expert’s opinion is. MedCo is proposed as the ‘accrediting authority’ - but this is an organisation largely run by players in the claims industry, and is not independent of those having financial liabilities. 

MedCo is not designed to improve standards of medical reporting, but rather to cap fees experts might charge. Many MedCo experts are general practitioners, not registered as specialists in trauma, and (from personal experience), are locums. Judging by the CVs I have seen, few seem to have any experience in actually treating neck injuries and generally have not operated on an injured neck.
If a medical opinion is deemed necessary then solicitors should get such an opinion directly from a GMC registered medical practitioner, and get the GMC to deal with any ethical misdemeanour by the doctor. There is no need for a third party agency. 

Frankly, to assess PSLA for minor “whiplash” injuries, I cannot see that any medical opinion is necessary at all. The ‘assessment’ comprises nothing more than taking a history and demonstrating the comfortable range of movement demonstrated by the patient. What would be a good professional title for one who makes such determinations? If neurological, orthopaedic, or significant psychological symptomology is evidenced, a specialist opinion is called for, and, by definition, that will not be ‘PSLA due to soft tissue injury’.

All that experts can opine is: “This patient says they have suffered pain and loss of amenity as a result of a ‘whiplash’ type injury. There is no means whereby I can corroborate the history given, and it is for the court to determine its veracity.” That statement should be included in the declaration experts all sign. 

Wind up the MedCo Service

Lord Keen goes on to say that, “the proposals are aimed squarely at tackling the compensation culture which has grown up around whiplash claims in recent years. That culture is fuelled by a substantial industry of sustained nuisance cold-calls and targeted advertising which encourages motorists to make claims when little or no injury has been suffered.

Very well, but if the perceived problem is that motorists are making fraudulent claims, then say so, and address the frauds directly. Carry out some basic demographic research (there was hardly a taxi-driver in one county I worked in who had not been involved in a shunt); ban cold-calling for claims; ban targeted advertising by ‘claims-handlers’; remove the ‘guidance’ by NHS England (which Trusts are not obliged to follow), that NHS Trusts should not allow advertising on their premises by PI lawyers or claims handling firms, and make it an unequivocal instruction; tighten bans on referral fees; ban solicitors from outsourcing other companies to administer the claims process (there should be no need for ‘medical reporting organisations’); and wind up the MedCo service. 

The ‘Whiplash consultation’ paragraph 44 anticipates the proposed reforms “will help MedCo with its robust enforcement programme to ensure that prognosis periods are accurate. But no prognosis is ‘accurate’: a prognosis only assesses what is likely. After the event, (of prognostication), not only patients, but their lawyers and reporting doctors will inevitably be affected by confirmation bias, and report symptoms in their own best interest. Given the difficulty the government has identified with establishing a diagnosis of whiplash, and the propensity for claims to be exaggerated, if not fraudulent, it is hard to see how MedCo’s ‘enforcement programme’ will have any practical application.

Paragraph 45 suggests: “An examination at six months would enable the medical expert to assess whether the claimant was still suffering from pain or other symptoms related to injuries sustained in their earlier RTA.” No, it would not. As stated, all that an expert could do is report what the patient asserts. There is no examination which might reasonably corroborate a patient’s claims. For sure, there are a few tricks of the trade which might raise suspicions, but they rarely allow the expert to assess the veracity of the patient’s account. That is the job of the court. Absence of evidence of a corroborating sign, is not evidence of absence of significant genuine symptoms. 

Ensure Medical Experts can be Truly Independent

If a motorist’s claim is for genuine and significant injury, then they are deserving of compensation. The quantum is for the courts to determine. As Learned Friend has pointed out, the government’s present concern is only for ‘minor soft tissue injuries caused to occupants of motor vehicles.’ Perniciously, the government is proposing no compensation if the PSLA lasts a second less than six (or nine) months. At present, the government seems to have no particular concern about injuries sustained in trips and falls, nor for defendants other than drivers. Is that fair?

An apparently ‘minor’ injury can become a major problem. And, (worthy of repetition), there is no way to prognosticate accurately. I have always taught that there is no such thing as a ‘minor injury’, only a ‘minor doctor’. To which aphorism I can now add , ‘only a minor medical expert’. Surely, all injured patients are deserving not only of care and compassion, but also compensation. Raising the small claims limit for personal injury claims might help deal with the ‘claims culture’, but doctors should remain as independent, unbiased experts, reporting to the courts, and not be dragged into political, economic or cultural controversies, or lured into working for ‘reporting organisations’.  

Mr Richard Rawlins MBA FRCS is a consultant orthopaedic and trauma surgeon with a medico-legal practice (reporting for both claimants and defendants), based in Bath, London and Torbay. A former member of the BMA’s Medico-legal Committee, Chairman of its Clinical Audit Committee and an Associate Member of the GMC, Mr Rawlins has lectured at a number of whiplash related conferences. He is also a member of The Magic Circle, and is used to dealing with delusion, deceit and deception!

Thursday, 1 December 2016

For Want of a Nail: Crossman v St George's

For further discussion of this and other important cases in 2016 you can purchase Learned Friend's Clinical Negligence Cases Review 2016 - see here or go directly to STORE

For want of a nail a shoe was lost,
for want of a shoe a horse was lost,
for want of a horse a rider was lost,
for want of a rider an army was lost,
for want of an army a battle was lost,
for want of a battle the war was lost,
for want of the war the kingdom was lost,
and all for the want of a little horseshoe nail.

As "any fule kno" the test of causation in clinical negligence is the but for test (and material contribution, see past posts).

The test should not be applied too expansively - it should not be taken too literally: but for my negligent driving this morning, another motorist would not have been later for a GP appointment. If they had not been late the appointment would not have been re-arranged. But for the appointment being re-arranged they would have been diagnosed with a serious heart condition before the cardiac arrest ...

In fact I am not liable for the cardiac arrest even though, but for my negligence, it probably would not have occurred.

In Caparo v. Dickman, Lord Bridge said:

It is never sufficient to ask simply whether A owed B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless”. 

It is not within the scope of my duty of care as a motorist to prevent cardiac arrests suffered due to late diagnosis.

Is it within the scope of a surgeon's duty of care to prevent his or her patient from suffering a non-negligent complication of surgery? By non-negligent I mean a complication that has arisen notwithstanding proper performance of the surgery.

Where the "non-negligent" complication would probably have been avoided had the surgeon given proper advice about the proposed surgery, because the patient would have avoided the surgery in the light of that advice then, applying conventional principles, the surgeon is liable.

Chester v Afshar concerned a different situation. These are the opening words of the (minority) judgment of Lord Bingham in Chester v Afshar:

"The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor's negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but it is not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question?"

The majority held that the conventional approach should be varied: As Lord Steyn concluded:

"I have come to the conclusion that, as a result of the surgeon's failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles."

Thus the "but for" test would not have afforded a remedy to Miss Chester because she had not established she would have elected to avoid surgery. An exception to that rule of causation was carved out to vindicate the patient's right of autonomy.

In Crossman v St. George's Healthcare the Judge begins by distinguishing Chester v Afshar. The facts of Crossman were that a proper plan was agreed to manage the patient's neck condition conservatively for three months and then, if symptoms persisted, to proceed to surgery. Surgery involved a 0.5% risk of radicular nerve damage. Circumstances and negligent management conspired to bring the surgery forward, such that the period of conservative treatment was avoided. 

It was agreed evidence that the conservative treatment would have been ineffective and that the surgery would have been undergone, with the same risk of radicular nerve damage (and other risks).  

The surgery was properly performed but the Claimant suffered radicular nerve damage. 

Thus, but for the negligence, the claimant would have undergone the same surgery but some three months later.

This is not a judgment about informed consent. It is about causation.

The judge discussed Chester v Afshar but held that it did not apply to the present case, which could be decided according the conventional principles. The risk of nerve damage was very small. It would therefore have been very small if, as should have happened, the surgery had been performed 3 months later. The Judge held that "Had [the claimant]had the operation on a different occasion, on the balance of probabilities the operation would have been successful." Accordingly the damage would have been avoided but for the defendant's negligence.

It seems to me that the Judge applied the "but for" test in its most "expansive" form. Too expansive an application allows for this argument from Lord Bingham in Chester: "But for your negligent misdelivery of my luggage, I should not have had to defer my passage to New York and embark on SS Titanic". 

One question which might have been addressed in the judgment was whether the scope of the defendant's duty of care extended to protecting the claimant from the risk, or the materialisation of the risk of "non-negligent" nerve damage. 

The occurrence of nerve damage was entirely co-incidental to the breach of duty. The timing of the operation was irrelevant to the exposure to the claimant of the risk of radicular nerve damage. Hence, arguably, it was not part of the defendant's duty of care to fix the timing of the operation in order to reduce the risk of, let alone to prevent, radicular nerve damage. The timing of the operation was within the scope of the duty of care only because it was necessary to give conservative treatment an opportunity to work. The injury that it was within the scope of the duty of care to prevent (in that respect) was for the claimant to undergo an avoidable operation. But, the evidence was that conservative treatment would have been ineffective and the surgery would have been performed even without the breach of duty. Thus that particular injury did not arise. 

It would be surprising if this judgment were not subject to further scrutiny. After all, there must be very many instances where administrative or clinical negligence has led to the timing of an operation being altered. Is the NHS going to be liable every time a non-negligent injury arises from an operation that ought to have been performed on a different date or at a different time?