Personal injury claims, for the most part, are no longer commenced in court in the first instance, but are instead required to follow a pre-court process that is designed to resolve the claim by negotiation before commencement of a claim in court is necessary. This is true of work related injuries, motor vehicle accident injuries, and slip and fall and other types of injuries. The processes as between each of these types of injury claim types are essentially similar. They require us to set out full detail of the claim along with all of the evidence we have in support of the claim to the relevant insurer before a negotiation is held in the claim. The insurer may also seek its own evidence.
While these processes are not occurring within the courts system, the claims are nevertheless assessed in accordance with legal principles and accordingly they rely on the obtaining of evidence.
There are essentially 2 types of evidence – factual evidence and expert evidence. Factual evidence is simply actual proof of what has occurred, and can include anything from statements of witnesses who saw an accident happen, to receipts evidencing expenses that have been incurred in treatment, to evidence of lost wages caused by an injury. Expert evidence is opinion evidence given by appropriately qualified experts about anything from whose fault in accident or injury was, to assessing the medical effects of an injury, to speculating about the future effects of an injury on employment.
Here we are concerned with expert medical evidence.
Of course a person who sustains an injury will receive treatment from a range of general and specialist treating doctors and allied health professionals. The function that these professionals perform is quite different from the role of a medical, or more accurately a medico-legal, expert. The medico legal expert is retained by us as your lawyers to give evidence in your case. The evidence is given in the first instance in the form of a written report which is based on the medical expert’s consultation with you as well as their review of all of the relevant medical material. The medical expert might give opinions about things such as:
- The actual diagnosis of the injuries suffered;
- The level of permanent impairment caused by an injury (this is usually expressed in percentage terms);
- A prognosis or likely future course of the injury;
- Speculation about the need for further medical treatment and likely cost of same.
These functions, while having some similarity and relationship to the role of medical treatment, are quite distinct from medical treatment. Indeed, we rarely seek expert opinion from treating doctors. We want the medical expert to bring a perspective to the claim that is not influenced by a prior treating relationship and moreover, we don’t want to have a client’s treatment interrupted or interfered with by a request that the treating doctor provides expert opinion about medico-legal matters. There can be exceptions to this but that is the general rule.
For its part, the insurer (be that the WorkCover insurer, the CTP motor vehicle insurer, or a public liability insurer depending on what type of claim it is) will often want to obtain their own expert report from their own specialist.
Often in these claims there is contest between the experts we retain on your behalf and the experts that are retained on behalf of the insurer. This is commonplace because just as with any medical situation, a range of potential outcomes can result. Our role as the legal representative of an injured person is to find out what within reason is the worst case of those outcomes, and thus attracting a high level of compensation, whereas an insurer might be more inclined to identify, again within reason, a more positive scenario that attracts a lower level of compensation. Both are legitimate means of assessing the potential scope of the range of outcomes from any given injury and form the basis of the matters to be discussed, argued, and negotiated by the lawyers for each side.
Expert medical evidence is accordingly an essential part of the claims process that is quite distinct from the role of a treating doctor.
