Warning: this article should not take the place of proper legal advice.

You must understand the process if you’re involved in a clinical negligence claim and are instructing a medico-legal expert. Make sure you follow best practices. Medical experts play a crucial role in providing evidence to support your case in medical negligence claims. This is my straightforward guide to help you navigate the process. This is my standard warning. As useful as this may all be, you should always consult a qualified legal advisor. Do this where possible rather than attempting this process unassisted. Much of the information presented here will also be in Part 35 of the civil procedure rules.

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1. Determine the Need for a Medical Expert ​

Before instructing a medical expert, consider whether their evidence is necessary to resolve your case. The court will only allow expert evidence that is reasonably required (Civil Procedure Rules (CPR) 35.1). For example, in claims involving medical negligence, a medical expert’s breach of duty report is almost always essential.

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2. Choose the Right Expert

Select a medical expert with the appropriate qualifications and experience for your case. ​ For example:

• For skeletal and muscular injuries, specific experts are often consulted. These include Consultant Orthopaedic Surgeons, Accident and Emergency Consultants, General Practitioners, or Physiotherapists.
• Make sure the expert is registered with the relevant professional body (e.g., General Medical Council or Health and Care Professions Council). ​

Check that the expert:

• Has no conflicts of interest. ​
• Can deliver their report within the required timeframe.
• Is available to attend court if necessary.

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3. Understand the Expert’s Role

Medical experts have an overriding duty to help the court, not to advocate for the party instructing them. Their opinions must be independent, impartial, and based on their skills. They should offer clear, evidence-based and impartial conclusions, which may or may not promote the interests of the instructing party.

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4. Provide Clear Instructions

When instructing a medical expert, make sure your instructions are clear and include all relevant information. The following is the bare minimum:

• Basic details (e.g., names, dates, and claim reference numbers). ​
• The purpose of the report (e.g., diagnosis, prognosis, or causation of injuries). ​
• Relevant documents, like medical records, witness statements, or other expert reports.
• Deadlines for submitting the report and any court dates. ​

If possible, agree on the instructions with the other party to avoid disputes. ​

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5. Discuss Fees and Costs

Before the expert begins work, agree on their fees and expenses. ​ This should include:

• Hourly or daily rates. ​
• Costs for travel, disbursements, and court attendance. ​
• Cancellation charges. ​
• Payment terms. ​

Keep in mind that the court may limit the expert’s recoverable fees, especially in small claims cases. ​

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6. Ensure Compliance with Court Rules

Medical experts must follow CPR 35 and Practice Direction 35. ​ Their report should:

• Be addressed to the court. ​
• Include a statement confirming their duty to the court and compliance with CPR 35. ​
• Be verified with a statement of truth. ​

The report must clearly distinguish between facts and opinions, and any assumptions should be explicitly stated. This is not an exhaustive list. I would recommend reading the entirety of CPR 35 and Practice Direction 35 before embarking on this task.

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7. Ask Questions and Clarify

You can submit written questions to the expert to clarify their report, but these must be proportionate and relevant. ​ Questions should be sent within 28 days of receiving the report, unless the court allows otherwise. ​

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8. Consider Single Joint Experts

The court may direct the use of a single joint expert in some cases. Small claims or fast-track cases often use a single joint expert. ​ This expert is instructed by all parties and provides a single report to the court. ​ Joint instructions should be agreed upon by all parties, and the expert’s fees are typically shared. ​

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9. Prepare for Court

If the expert needs to attend court, make sure they know the trial date and location. Inform them of any schedule changes. ​Experts may also give evidence via video link if necessary.

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10. No Contingency Fees

Experts can never be paid based on the outcome of the case or the nature of their evidence. This practice if discovered by the court will lead to sanctions.

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11. Be Aware of Sanctions

Failure to follow CPR 35 or court orders can result in penalties, like:

• Disallowance of the expert’s fees. ​
• Exclusion of the expert’s evidence. ​
• Professional sanctions or legal consequences for misconduct. ​

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Conclusion

Instructing a medical expert is a critical step in any medical negligence claim. By adhering to these guidelines, you can help to ensure that the process is smooth and professional. Taking proper legal advice ensures compliance with legal requirements. Remember, the expert’s role is to help the court. Their independence is essential for the success of your case. Adherence to the rules is also crucial.

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Contact Michael