The Litigation Series – Week 7: Expert Reports – Condition and Prognosis / Quantum
Last week my colleague Jason Tang looked at the role of experts in commenting on breach of duty and causation. Experts also have a very important role in commenting on condition and prognosis (how you are now/how you will be in the future) and assisting with the quantification (value) of your claim.
Single expert cases
In a relatively straightforward claim you may only need one expert to comment on condition and prognosis, and sometimes this will be the same expert who commented on liability. For example, in a delay in diagnosis of a fracture we are likely to instruct an orthopaedic expert to comment on both breach of duty and causation. If the expert agrees that earlier diagnosis should have been made (breach of duty) and that, with earlier diagnosis, you might have avoided surgery (causation) then we would ask that expert to examine you and comment on your current condition (how you are now) and what the implications of the delay and the fact that you required surgery are in respect of your future prognosis. This is important because you are entitled to compensation for your entire injury, and if for example you might need future surgery or orthopaedic input then that is something that should be factored in when valuing your claim. Likewise if you are likely to suffer a deterioration associated with pain, suffering or additional disability we would need to know that.
Multiple expert cases
In some claims the position in respect of condition and prognosis and quantum experts is much more complex. For example, experts required to assist in the quantification of losses for a child who has lost multiple limbs as a result in a delay in diagnosis of septicaemia might include: paediatric orthopaedic surgeon; paediatric plastic surgeon (particularly if the limb loss involves upper limbs); care and occupational therapy; physiotherapy; prosthetics; psychology; educational psychology (particularly if there have been interruptions to education or any profound psychological effects); assistive technology and accommodation experts.
Birth injury cases are another example of cases which require multiple experts to quantify, often also including the use of experts to comment on managing a damages award on behalf of a party who cannot manage their own financial affairs, such as a deputy and financial adviser.
If the Claimant has suffered a psychiatric injury as a result of the alleged negligence then this needs to be proven by the use of expert evidence. There is a requirement to link any psychiatric injury to the breach of duty, so there is an element of causation in most psychiatric reports as well as opinion on a claimant’s current condition, prognosis and any recommendations for treatment, with costings.
The role of the court
Under the civil procedure rules the court has an important role in controlling the use of experts. Once proceedings are issued and served and a defence has been served the court will order a first hearing known as a Case Management Conference (CMC). At this hearing the court will consider the position of the parties and grant or refuse permission to rely on particular experts. Should additional experts be needed it will be necessary to apply to the court for permission to rely on them, so it is important to understand exactly which experts are required to comment on which aspect of injury and loss at an early stage where possible.
Because of the considerable expense associated with instructing multiple experts to comment on condition, prognosis and quantification the Court may order a “split” trial, where liability is tried first, and only if the Claimant is successful will the case proceed to quantification.
If you have suffered from a condition due to medical negligence you may be entitled to compensation. For a free initial consultation with one of our medical negligence experts please call 0808 301 2868 or request a call back online.