Michael Cohen says that Lord Irvine's 75 per cent certainty test is only serving to add to the many problems medical experts face when trying to carry out their evaluations efficiently. Michael Cohen is chairman of the Academy of Experts.
Medical experts are reporting increasing frustration. Although there are many complex reasons ranging from their instructions to who pays for them to sit and wait (usually their patients) two problems are emerging as front runners.
The first is recent, and almost seems to have been activated by the Lord Chancellor's view that the solicitor should have to pay the cost of determining whether the client has a case.
Although from time immemorial experts have been asked for a quick view or impression with their compliments the requests seem to have changed recently.
Now evaluations are required without cost to solicitors or their clients, and before the expert has even been appointed.
As one medical expert said last week: “I am being asked for my conclusions as a freebie. To comply will take almost as long as writing the report. Not only am I expected to do the work free but I have no certainty of even being appointed if the case proceeds.”
When Lord Irvine's 75 per cent certainty test and performance monitoring come into force, solicitors will need to be ultra careful if they are to avoid being put into an extremely exposed position.
And the expert will be at the thin end of the wedge which does not sound like a prescription for a good working relationship. Solicitors and experts should be working together in harmony, rather than in an exploitative relationship.
The other current favourite frustration is not new, and is about access to information. Medical experts are constantly complaining how long it takes to obtain medical records, and therefore how expensive it is.
Surely NHS inefficiency cannot take all of the credit? Whatever the cause, it is time that action is taken to curb both the delays and true costs of obtaining medical records.
Meanwhile, expert witnesses are reporting an increasing number of people who are being examined refusing to answer any questions. They sound like captured soldiers waiting to be tortured: “That's for you to find out” and “I've been told I don't have to tell you anything other than my name.”
I have no means of knowing whether solicitors are telling their clients to say nothing when being examined by the other side's medical expert, but it is worrying.
In these days, with efficiency a prime objective, it is strange to find tactics like these being used to prolong cases and increase costs. Lord Woolf talks of controlling abuses by the courts using the stick of costs there would appear to be some obvious targets.
The medical members of the Academy of Experts have been working together to produce new and improved methods of increasing efficiency, in the interests of facilitating more efficient dispute re solution.
If they were to look at this subject next, alongside solicitors and the Clinical Disputes Forum, they might produce a new protocol.