Medical report writing series - by Dr John Wilson

Part 5 - Going to court

Most doctors cringe at the prospect of going to court. Maybe I am a bit odd. I actually look forward to my court attendances, and get quite disappointed when the cases (as most do) get settled the week before. I’ll admit that some of my early court attendances saw me emerge thoroughly minced, and on reflection very rightly so. I have found that with each court appearance I get better at it, but it can be hard work. Don’t plan anything too special for the evening after you have been in court. By way of preparation my advice is to make sure you have a good bottle of riesling awaiting you in the fridge for your homecoming.

Every time you write a medical report you must realize that it is the first step on the way to court. Most reports do not go past that first step. It is something of a lottery as to which cases eventually get listed for court, and then only a small proportion actually make it to court on the day.

Those lottery numbers are selected not by the court, but by one or other of the adversarial sides depending on how they perceive you are going to going to help their cause.

To be of use to that side requires firstly that the evidence you give supports their case, and secondly that you are seen by the court as being a credible and unbiased witness.

I shall use the example of my most recent court attendance to illustrate how those two requirements can get out of step with each other.

For some time I had been receiving referrals from a particular (defendant) law firm to do medical assessments on claimants. They were evidently happy with the quality of the reports I sent. As is usual in such situations the cases generally settled out of court, until eventually my attendance was required in the courtroom. On the appointed day I answered the questions openly, and was confronted with new evidence that had the effect of diluting my previous opinion. At the end of the day the barrister who had called me to give evidence was glowing with praise, explaining I had presented as a most credible and impartial witness. He went on to explain that the doctor who had been called by the “other side” had clearly impressed the court as being there to bat for his patient, and therefore of no use as a witness. But I fear that my impartiality did not win the day for that firm as my referrals from them suddenly dried up!

When you go to court you must say to yourself over and over again:

I don’t know what you are all arguing about, and I don’t care which side wins or loses. There is only one thing that really matters and that is for everyone in the courtroom to see me as an impartial witness.

Remember that barristers and surgeons have a lot in common. The gowns they wear may be different colours, and they may wear silly head gear (In most courts, nowadays the barristers don’t wear gowns and wigs). But each in their respective territory can wield a sharp knife and expose blood and guts. One thing that sets them apart is that the surgeons go to great lengths to control pain.

In the courtroom you will be required to defend your report.

You should also be prepared to be questioned on many other matters. The court needs to be satisfied that you are competent in your field of practice, and are not encumbered by any conflict of interest.

Allocate a few hours in the days before the court attendance revisiting your case notes. Use small “post-it” tags to quickly identify key issues in the file. Try to anticipate (not easily done) the questions that may be asked.

Don’t underestimate the importance of your own physical presentation. Are you overdue for a haircut? Did you get your suit dry-cleaned when you last wore it to the medical graduation reunion? Can you find your old-scholar’s tie or your medical college one?

(Ladies, please forgive me for using sexist terminology here, but I hope you get the drift!) – dress conservatively.

Court is a very serious place. It is rare to see a smiling and jolly faces in a courtroom. Do not try to brighten their day with levity and wise cracks.

For the purposes of this article I shall refer to the president of the court as the judge. In some courts there are magistrates, and other courts have their own specific titles.

Remember that the judge is not a medical expert. Unless you are giving evidence in a Workers Compensation Tribunal the judge is exposed to all manner of disputes. The case before yours may have involved days of conflicting evidence on the inner workings of water-meters, and the one before that dealing with an army of forensic accountants.

You need to understand the way the court works. You will first be questioned by the barrister acting for the side that has called you to give evidence. You will find that experience relatively benign. This is the process known as “examination in chief”. The side that has called you to give evidence has no need to shatter your credentials.

Then it is the turn of the barrister acting for the other side. This is the aptly-named cross examination which is designed to shatter your credibility (and confidence) even before any mention of the issues in your case-notes. If the barrister has done his homework (they are usually male), he will have done his research when playing golf with some of his doctor cronies, and probably knows what year you graduated, along with the fact that you had to repeat paediatrics in fifth year of medical school.

If you have written a flimsy report that will probably be enough fuel for the cross-examining barrister to shatter you credibility. If he attacks you with a photograph of your hobby farm, or asks you whether you have read the latest edition of the Icelandic Annals of Experimental Pain, then take solace that you have probably written a very good report, and left him with little else to shoot you down.

When the cross-examination is done, it is time for the first barrister to have another turn. This in court terms is called the re-examination. It will usually be brief.

Now I know this may be hard to remember, especially when under attack, but whenever the barrister asks a question, take a breath, or two or three if necessary, and turn yourself so that you have the eye of the judge, and then give your reply. Then again face the barrister to await the next question.

Courts cope poorly with anatomy. If the barrister asks you what or where is the acromio-clavicular joint, the natural thing to do is to raise a finger to the other shoulder and reply “here!”. The court-reporting process needs to have it described in words. “It’s that pointy bony prominence on the top of the shoulder” “So, doctor, can you explain to the court how something that is a joint can also be a bony prominence?”

You will be told when your time in the witness box is over. Stand and face the judge. When you have his eye, respectfully nod your head.

The doctors who win the day in the courts are not the smart professors who can recite all the journals, but the ones who are articulate, explain things in plain English, and can logically walk the court through the steps that form the basis of his or her opinion.

The Australasian College of Legal Medicine conducts Expert Witness Intensives. These day-courses involve mock court cases in a real courtroom and, with real barristers. I can recommend these sessions for any doctor wanting some court experience. www.legalmedicine.com.au

In a nutshell: The lesson that emerges from all of this is that it is far better to craft the report properly in the first place, rather than trying to fudge your way in court to defend statements that cannot be defended. Barristers have a nose for fudge and will gladly devour it in front of you, leaving you only to feast on humble pie. But if it is humble-pie that you must consume, take my word that it slips down better with a glass of riesling.

In the next article I’ll examine the differences between impairment, disability, and incapacity, all of which have a habit of creeping into the questions that we need to answer in our medical reports. I’ll also talk about patients who buy “cheap” income protection policies, and find that these policies can come with a nasty sting in their tail.

Medical report writing series - by Dr John Wilson

Part 5 - Going to court

Other articles in the Medical report writing series: