By Mr R Scott-Watson, Orthopaedic Surgeon, Expert Witness & Disability Analyst APIL Expert
This is the case of a Litigant in Person (previously represented) making a personal injury claim against a large corporation that employed a ‘boutique law firm specialising exclusively in defendant occupational disease litigation’. Liability had been accepted and Counsel’s opening was that the matter at hand was purely causation.
Claimant had sustained injury in late 2014 having been working doing a single process for a few months. Symptoms were pain in the right shoulder, elbow and wrist as well as some tingling sensations in the arm. Initial Physiotherapy, starting three months after onset, lead to 80% recovery. The Claimant had already ceased working for the company at this point. Unfortunately once treatment stopped the symptoms rapidly returned, leading to five months further physiotherapy in 2014. Symptoms however continued, and became more intrusive over time. Claimant’s medical expert diagnosed Thoracic Outlet Syndrome (January 2018) and recommended specific exercises, anticipating a full recovery, as he sees in a large number of people with this condition. Recovery failed to materialize. MRI scan and Nerve conduction studies were normal. Options to do further investigations were hampered by financial pressure as a litigant in person. The Claimant eventually found a specialist Thoracic Outlet Syndrome clinic who undertook ultrasound, showing a very narrow scalene triangle through which the nerves pass, and undertook a local block which provided relief of symptoms – the diagnosis had been verified.
Claimant medical expert has 30 years experience in reporting on Orthopaedic Trauma cases, has an Occupational Health qualification and is also qualified as an expert witness.
Defendant medical expert is a retired Orthopaedic Surgeon who had done a single day course on being an expert witness and had no experience of Occupational Medicine, as well as no relevant qualification.
Pre trial the Defence had claimed not to know which of the two possible processes the claimant was undertaking, the lighter (their claim) or the heavier (the claimant’s position). They failed to provide the risk assessment for the process, declined to provide the weight of the component and provided the Court with a video of the lighter process – the wrong one. Original pleadings, when a claimant solicitor was involved, had erroneously stated that lighter process, but this had been corrected early on and over a year pre-trial (well before the video). Defence Counsel refused to accept this.
Claimant medical evidence was straightforward. The process was a job classified as medium work (classified by the weight, when it was obtained from other sources), was highly repetitive (one component every one minute and six seconds) and there was therefore a risk of injury from the weight and repetition of a number of different upper limb conditions. This was evidenced to the Court by an extract from the reference book. The timeline of symptoms was continuous to the present day (January 2020). Where there was certainty and where there was not was clearly pointed out to the Court in two hours of testimony.
Defendant medical expert having admitted that he had no relevant qualification or experience to the pleaded defence (causation), also acknowledged that he was not aware of the main reference book on the medical aspects of fitness to work. Although ending with the signed statement of truth, the report contained numerous errors, most particularly putting in ‘quotes’ from the GP notes that had either been altered (in the Defence’s favour) or had parts omitted (to the Claimant’s detriment). The report was internally contradictory with such phrases as ‘the shoulder had a full range of movement’ being immediately followed by an examination section that showed this not to be the case. The condition was stated to have recovered even though examination of the shoulder had to be suspended for a few minutes because of pain caused in the shoulder during examination. There was no explanation given as to what condition was still present.
He had described the process as ‘light work’ but had made up his own definition of ‘light’ which was contrary to that in the reference text. He did not know the weight of the component. In the joint statement had had diagnosed (from his report at four and a half years post onset) that the claimant’s condition was tendonitis of the shoulder that resolved within three months of onset. Is was pointed out that physiotherapy did not begin until three months after onset, when symptoms were still clearly present. He had to concede that the condition clearly went on longer than his three month period. It was also pointed out that the shoulder had not been the only area of symptoms. The expert added that there could have been some ulnar nerve neuritis. Although aware of the diagnosis of Thoracic Outlet Syndrome (he had the claimant’s medical report before compiling his own) he dismissed the diagnosis without examining for it. He told the Court that the ulnar nerve neuritis was insufficient to show on nerve conduction and then used the same nerve conduction to help rule out Thoracic Outlet Syndrome, saying it should have shown up.
Overall the Claimant position was that the Defence did not have the correct Expert, that Expert had been clearly partisan (in breach of Part 35), clearly not competent, was very unclear of the medicine, very unclear of his duties to the Court and really should not have been there. Such glaring errors by a professional legal team should have been frowned on by the Court in no uncertain terms.
Guessed the outcome?
Judgement was given to the claimant on the basis that he had shoulder tendonitis for three months as a result of the accepted injury.
How did the Judge get there? Well, there was only one way and that was to use only the Joint report and prefer the Defendant’s medical opinion, as in court that had been roundly discredited, and not use any of the information from the two day hearing.
The Claimant is expected to appeal.
Mr R Scott-Watson
BSc(Hons) MB BS LLB (Hons)(Open)Cert. Av. Med. Cert.MR(2)CUEW DDAM FRCS(Ed)
Orthopaedic Surgeon, Expert Witness & Disability Analyst APIL Expert
Medico-Legal Reporting since 1990. Over 23,000 reports.