Expert Testimony

January 20, 2020

Presented by Philippa Jackson MHSc (Hons), PBDip (Neuro), Dip PT

The purpose of a Medicolegal Physiotherapy report is as follows

  • To provide a physiotherapy perspective to the proceedings
  • To assist the court in reaching a fair decision and to provide a professional, impartial and informed opinion.
  • The report provides a realistic picture of the client’s future from a physiotherapy perspective
  • It helps recommend what the clients future needs will be (pertaining to physiotherapy management) as a result of his or her injuries.

Some reminders about your report

  • Be impartial and objective
  • Be accurate in what you say and how you state it
  • Ensure that everything you stated in your assessment notes is included in your report
  • Make sure that you only comment on things you are qualified to (e.g. do not comment on anything outside of your field of expertise, like medication)
  • Use practical examples of how an impairment will affect the client where possible
  • Use diagrams or photos if they are illustrative to this client

What should be included in the report

  1. Claim details: injury date, referrer and reference number, case/ claim numbers
  2. Assessment information:  where, language etc.
  3. Background information: general information, client’s complaints
  4. Assessment findings: range, power etc.
  5. Analysis and recommendations: draw things together
  6. Conclusion
  7. Rider

“The Merits” of the matter

The merits of the case would be who is to blame, which will either be the plaintiff or the defendant. If there is seen to be wrongdoing on both sides, then a ratio of how money will be paid out will be worked out.

NB to check that the merits of the case have been settled before you agree to assess the client, if they have not and the case is dismissed, it could then become difficult to recover your fees for the assessment and report.

Pre- trial meetings

What are these for?

  • Clarify key opinions
  • Clarify exactly what you meant in a particular part of your report
  • To look at areas of agreement and coherence between experts
  • Discuss strategy

What is expected of the physiotherapist?

  • Only comment on what is in your report
  • Do not start contradicting yourself
  • Remember there will be overlap between your report and several other experts, so expect to discuss these aspects

What preparation do you need to have done?

  • Ensure you have received all documentation from the other experts
  • Read all the above
  • Make sure that you know your own report inside out
  • If you have queries about what other experts have written, know what you want to ask

Tips

  • Take your cue from other experienced experts if you are not sure how the meeting will proceed
  • Listen carefully to what other experts say

Minute

What is a minute?

  • A document that records aspects of the case on which you agree and disagree with your “opposing” expert

What is the purpose of a minute?

  • To record areas of agreement
  • To narrow down differences in opinion in order to assist the parties and/ or court in finalising the case

Tips about minutes

  • Be prepared to concede points that your counterpart raises when appropriate
  • You may decide to take the middle ground on some aspects
  • Typically, the instruction to produce a Minute comes at short notice and with an urgent deadline
  • Respect your counterpart and their opinion
  • Never embark on a minute unless your attorney has instructed you to

Responsibilities of each party

  • Commonly the expert appointed by the plaintiff will do the initial work (e.g. reviewing both experts report and noting similarities and differences expressed)
  • Ensure your attorney has instructed you to do a minute
  • Once the minute is completed, the final version must have signature from both experts
  • It is your responsibility to forward a copy to your attorney
  • Your counterpart is required to forward a copy to his attorney

Example of format for minute

Minute of meeting of

Physiotherapists

Ms Pip Jackson and ….

In the matter of

Physiotherapy

It was (dis)agreed that physiotherapy is indicated at the level of

It is agreed that the cost of physiotherapy is

Variable as practitioners are free to set their own rates.

The parties did not agree on…

Special equipment

The parties agreed that… would require:

The parties did not agree, as follows;

Domestic assistant

Ms Jackson and…. (dis)agree that…

Loss of life Amenities

Both experts agree

We disagree that

Signatures

What is an expert?

  • Anyone with knowledge or experience within a particular field or discipline, beyond what is expected of a layperson

What is an eyewitness?

An eyewitness:

  • Is appointed to provide advice and services (including expert evidence)
  • Makes his/ her knowledge available to the court to help it understand the issues of the case and reach a sound and just decision

Obligations of an eyewitness

  • Your primary duty is to the court and the client
  • Be truthful in relation to the facts

Notify the instructing Attorney if you perceive:

  • Any conflict of interest that would disqualify you or make it undesirable for you to be involved in the case

Giving expert witness:

  • Endeavour to make yourself available for all hearings, meetings or other necessary engagements for which you have been given adequate notice
  • Do not without good cause discharge yourself from the appointment as an expert

Giving evidence

Tips to prepare:

  • Reread your report
  • Read other experts reports

If you have been subpoenaed to attend court:

  • Clarify exactly what time and where to be
  • Plan ahead on how to get to court and where you will park etc.

When in the witness box:

  • Avoid eye contact with the opposing advocate – especially under cross examination

Examination in Chief

  • This is the evidence lead by the advocate “in your own team”
  • Answer the questions as they arise
  • Speak clearly using layman’s language

Cross examination

  • Do not allow yourself to become rattled or adversarial REMEMBER you are there to assist the court to reach a fair decision, not to take sides

Billing for your time in court

Qualifying Fee:

  • Means a fee charged by an expert to qualify him/ herself to testify in relation to a particular matter.

Excludes:

  • Fees for assessment and drafting of report
  • Fees for actually appearing in court and giving evidence

Includes:

  • Reading relevant material and conducting research in order to better testify
  • Consultations with attorney/ advocate
  • Listening to other experts’ evidence which is relevant to the opinions formed or expressed by you

Only paid with a specific court order to that effect

Reservation Fee:

  • Fee charged by an expert to ensure that he/ she is available to give evidence
  • Some people charge the fee for the full day, the moment they are reserved

Time in court:

  • Bill for the time in court to a maximum of 8 hours
  • I charge an hourly rate, to a maximum of Rx.00 per day – this is in my terms and conditions
  • The hourly rate is the same as my assessment and report writing hourly rate

My terms are

  • That an hourly fee is charged for traveling hours
  • Mileage at R4.10 per k
  • Trips over 200 km will require overnight accommodation
  • Accommodation must be arranged and paid for directly by the attorney’s firm

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