Resolve and EWI held our annual Scottish Medicolegal Conference at the Grand Central Hotel in Glasgow on 19 September. The event featured great speakers and panels and lots of interaction with the audience of expert witnesses and legal professionals.
It was a brilliant Conference so, with a number of the EWI team attending, we thought we’d note some of our key highlights.
Session 1 - Assessment of Disability and Why it Matters in Personal Injury Litigation
The first session was on the assessment of disability with solicitors, Wendy Thomson and Fergus Thomson, and Trauma and Orthopaedic Surgeon, Duncan Macdonald. The session addressed the factors why pursuers are not fit for work and discussed how to make an assessment of disability. It included a discussion of the Ogden Tables, the actuarial tables which are used to help calculate future financial losses in personal injury and fatal accident cases, and the Guidance issued by the Government Actuary Department. A key challenge for experts in these types of cases is the extent to which they understand and are able to comment on the labour market or whether they should note in their report that further input, ideally through a workplace assessment, will be required.
Session 2 - How to Reduce the Retraumatisation of Claimants in Medico-Legal Litigation Claims
EWI members responded earlier this year to the paper published on this topic, so we were really keen to see this session, with one of the primary authors, Chartered Physiotherapist Holly King, joining a panel of other experts and legal professionals to discuss the topic further. Holly was joined on the panel by Laura Conner, a Partner at Thompson Solicitors, Chartered Clinical Psychologist, Catherine Jenkins, Consultant Trauma and Orthopaedic Surgeon Paul Jenkins, and Partner at Leigh Day Bethany Sanders.
After Holly set the background for the topic, Beth Sanders introduced a really moving and thought-provoking video, featuring a pursuer her firm had represented, called Dawn, who talked from the pursuer’s (claimant’s) perspective, about the medico-legal process in her case. Dawn had been severally injured in a car accident and described how dehumanising and traumatising the medicolegal process she faced had been.
It set the scene for the broader discussion about how the legal team and the experts can try to avoid the retraumatisation the pursuer while meeting their duty to the court and avoiding any compromise to the effectiveness of the medicolegal process. The speakers spoke from the solicitor and expert, as well as claimant and defendant, viewpoint, carrying the topic forward with the engagement with the audience and producing a lively and productive discussion.
The authors are continuing to work with claimant and defendant organisations on protocols which could be agreed by both sides and, at EWI, we look forward to continuing to work with the authors. If you’d like to contribute your thoughts, you can still read the paper and complete our survey here.
Session 3 – Mock Court - Negligence
Session 3 was a brilliant Mock Court featuring Orthopaedic Surgeons, Robert Clayton and Robert Carter, and barristers, Sarah McWhirter and Andrew Bergin. The Mock Court was based on an actual negligence case about a pursuer who suffered a leg amputation. The pursuer alleged the amputation was caused by the orthopaedic surgeon, who operated on bone spurs in his foot in an attempt to reduce the recurrence of severe infection. Robert Clayton, who was the actual expert for the claimant in the case, played the defendant surgeon, and Robert Carter, the claimant’s expert. The barristers focussed on issues of consent and the use of a compression dressing by the surgeon. It was a really helpful insight into how barristers and experts approach court and led to a very interesting discussion with the audience, particularly around consent and the application of Montgomery.
Session 4 – Fundamental Dishonesty
The final session on fundamental dishonesty featured a range of Resolve experts sharing cases where they had had to deal with a fundamentally dishonest pursuer. Stand out examples included ‘thumb man’ who alleged a serious thumb injury and then livestreamed himself engaging in a videogaming marathon and a pursuer alleging a serious leg injury. The medicolegal expert who had assessed him, met the pursuer by chance the following week at a remote holiday spot, as he strode down the beach before quickly returning to a painful limp after being greeted by the expert.
Those who do not act in Scotland might also be interested to note that fundamental dishonesty has a different meaning in Scotland, and in England and Wales, where it is defined in section 57 of the Criminal Justice and Courts Act 2015. Wendy Thomson compared the English and Welsh approaches by comparing the case of Shaw v Wilde, where the court found that the fundamentally dishonest claimant received nothing due to his fundamental dishonesty despite having an otherwise legitimate claim for $1.2 million, with the Scottish case of Grubb v Finlay, where the fundamentally dishonest pursuer still received the legitimate part (£6,000) of his £500,000 claim. She noted how much wealthier the claimant in Shaw v Wilde would probably now be, were his accident to have occurred north of the border.