Expert witnesses – how choosing the right team of experts help to value a claim.

In a medical negligence case the legal test for negligence is whether a patient has received ‘reasonably competent treatment’ or not. This is not the same as the best or the only possible treatment option. Nor is it the treatment that would have turned out, with hindsight, to have been the best option. Instead, it acknowledges that different ‘responsible bodies’ of medical opinion sometimes disagree, reasonably, about what treatment someone should be offered.

How, hypothetically, someone’s treatment and progress would have been different if they had received ‘reasonably competent’ treatment – instead of the treatment they actually had.

This evidence is needed in all personal injury and all medical negligence cases. The parties (and ultimately a trial judge, if the case went all the way to a trial) need to know (1) what someone’s diagnosis is, (2) what treatment is reasonably needed, and (3) what their prognosis is for the future, after they have had any treatment.

These experts often feature in amputation cases. Orthopaedic surgeons can be very useful in describing someone’s initial injuries and treatment – and their prognosis from a surgical perspective. However an expert in rehabilitation medicine can help to give long term opinions on how the claimant is likely to be able to function in the long term, over the rest of their life.

Similarly to rehabilitation medicine experts, a spinal cord injury expert can give long-term opinions on how a claimant with spinal cord injury is likely to be able to function over the rest of their life.

A very important expert. Patients with serious injuries, with long term effects, may need care or assistance to try, as best as possible, to provide them with the independence they enjoyed ‘but for’ their injuries. Some experts have a nursing care background, with experience case managing (organising) care regimes for seriously injured clients. Some experts have a background in working as an occupational therapist, advising patients on equipment and strategies to maximise their independence. Whether the expert has a care or an occupational therapy background, they can give opinions on (1) what care regime (e.g. family care, professional paid care, agency care, directly employed care, daytime care, sleeping night care, waking night care, one or two carers, etc etc) someone reasonably needs and (2) what aids and equipment (including wheelchairs, mobility aids, aids to help in the kitchen, bathroom, etc) are required.

Many people who have suffered a serious injury – with a resulting serious effect on their home lives, work, relationships, hobbies, etc – can suffer psychological injuries as well. A psychiatrist or psychologist can diagnose any injuries (such as, for example, an adjustment disorder, depression, anxiety, or PTSD) and can recommend treatment.

Sometimes, sadly, severe injuries can lead to chronic pain conditions. Especially where someone has been referred to pain management doctors by their treating surgeons, pain medicine experts can be needed. They can give opinions on someone’s diagnosis (which is sometimes controversial), potential treatments, and how their functioning is likely to improve or change over the long term.

While this might seem crude, every serious injury case involves predicting how long someone’s needs will last for – and therefore what their life expectancy is. Most people are assumed to have a ‘normal’ life expectancy, in line with tables produced for the general population by the Government Actuary’s Department. However, if there is clear evidence that someone’s status is “atypical”, whether as a result of their injuries or their pre-existing conditions, then life expectancy evidence can be needed. Sometimes this is provided by a separate expert, while sometimes it is provided by a medical expert (such as a spinal cord injury expert, for example).

Physiotherapy experts can often work closely with the orthopaedic and care/occupational therapy experts. They can advise on what treatment a claimant reasonably needs, both now and in the future. However they can also have an important role in predicting how mobile and how able someone is likely to be in the future, following treatment, and as they age. This has a knock-on effect on the care expert’s opinion on how much care and assistance they will be likely to need.

These experts are often architects or surveyors with expertise in designing disability-friendly houses and buildings. If a claimant is likely to need a wheelchair – either all the time, part of the time (like an amputee), or in the future – then there could be a substantial claim for adapted accommodation. Depending on the individual claimant’s age, circumstances and location, this can include the additional costs of buying a bungalow, adapting it, and paying for its ongoing running costs, above the costs the claimant would have incurred anyway in living in their pre-injury home.

These experts are needed in amputation cases. The fitting and servicing of prosthetic limbs is a specialist area in its own right. A prosthetist – along with a rehabilitation medicine expert – can also make long term predictions about what type of limbs (e.g. lightweight, microprocessor-powered, waterproof, sports, etc) someone will reasonably need over their lifetime.

These experts can advise on how someone in a wheelchair (for example) can live as independently as possible in their own home. They can provide recommendations and costings for items including home security systems, door openers and closers, electrically controlled curtains and blinds, etc.

These experts have experience (and price knowledge) of wheelchair accessible vehicles. They can give evidence on the costs of adapting ‘ordinary’ cars – and on more custom-built ‘roll on roll off’ wheelchair accessible models. They can also, where appropriate, given evidence on adapted motorhomes – where this is necessary to enable someone to continue their pre-injury hobbies and holidays.

This can often apply in motorcycling injury cases. As many motorcyclists understand, motorbikes can be more a way of life than just a means of transport. A motorcycling needs expert can advise how someone with disabilities can access motorcycling as best as possible again – through adapted motorbikes and trikes, motorbike and sidecar combinations, etc.