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contents IN THIS ISSUE 7

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Opening Statement

NEWS 8 Further LIBOR shake-up among subjects of review by financial experts 9 Flight delay ruling could lead to many more claims 9 Experts give evidence to MPs in Gatwick investigation TRANSLATION & INTERPRETING – SPECIAL FEATURE 11 Focus is on the courts, but there is more to interpret than meets the eye 13 The legal process requires precision – in any language 15 Judge attacks interpreter contract after hearing is adjourned 17 Use of unqualified interpreters on the increase, campaigners claim 17 New degree-level accreditation for linguists’ diploma FINANCE 18 Loss of earnings INFORMATION TECHNOLOGY 19 Forensic IT update

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BUILDING & PROPERTY 20 RICS launches expert accreditation service 20 Water management placed firmly on the agenda for planners TREES & FORESTRY 21 What’s a tree worth? ANIMAL & VETERINARY ISSUES 22 Interpreting EU laws on animal welfare on farms and during transport

A to Z WEBSITE GUIDE 24 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

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EXPERT CLASSIFIED 54 Expert Witness classified listings 56 Medico-legal classified listings

Your Expert Witness

Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Advertising: 0161 710 3880 Editorial: 0161 710 3881 Subscriptions: 0161 710 2240 E-mail: ian@dmmonline.co.uk Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness. Views expressed in this magazine are not necessarily those of the publisher.

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MEDICAL ISSUES 27 Medical Notes

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REPORT WRITING 29 The Jackson Reforms – how can the legal team help the expert witness? GYNAECOLOGY 31 Common areas of litigation in gynaecology SPEECH & LANGUAGE THERAPY 33 Cardiff conference emphasises role of speech therapy in cutting offending 33 Training package can help spot hidden communication problems 34 Rehabilitation – Hannah: a case study PSYCHOLOGICAL ISSUES 35 What may explain persistent symptoms following a mild head injury? 37 Why I use the Rorschach in court reports 39 Military stress charity reveals increase in veterans seeking help 39 In praise of ‘unnecessary’ detailed history

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ISSUES FOR THE GP 40 Games some patients play – beware! 41 New rules on whiplash could give rise to more GP expert reports 41 Family feud leads to GP’s suspension OPHTHALMOLOGY 43 Laser surgery gaining in popularity 43 Experts cite negligence risks PLASTIC SURGERY 44 Avoiding complications in blepharoplasty 45 Surgeons offer reassurance on cancer link to implants PAIN MANAGEMENT 46 Assessment of pain helps to assess the compensation 46 When management fails ORTHOPAEDICS 47 Misdiagnosed orthopaedic injury leads to major pay-out 49 Whiplash and Co. – a different slant

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DEEP VEIN THROMBOSIS 50 Deep Vein Thrombosis – still a problem in 2014 DRUG ABUSE 53 Better than coffee?

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Opening Statement ‹ WE’VE SEEN BARRISTERS WITH placards, solicitors suddenly being summoned to ‘training sessions’

instead of attending court and protests outside Parliament. But what signalled the beginning of the war against the Ministry of Justice’s long-haul policy of cutting costs was the contract to centralise interpreting and translation services in the courts and tribunals system. The beginning was inauspicious. The contract to supply the entire justice system with interpreters was awarded to a small company in Oldham. Whether Applied Language Solutions (ALS) could provide the solution, either in terms of capacity or quality, was open to question from the outset. In its report in February 2013 the Commons Justice Committee published the results of its inquiry into the affair. It stated: “However, the Department pushed ahead with the contract and failed to properly anticipate or address the potential for problems with Applied Language Solutions’ capacity to deliver on its promises.” When ALS was taken over by outsourcing giant Capita at the end of 2011, what should have been a sigh of relief failed to materialise. Targets continued to be missed and there were horror stories in the press. Announcing that same committee report, its chair, Sir Alan Beith, said: “The Ministry of Justice’s handling of the outsourcing of court interpreting services has been nothing short of shambolic. It did not have an adequate understanding of the needs of courts, it failed to heed warnings from the professionals concerned, and it did not put sufficient safeguards in place to prevent interruptions in the provision of quality interpreting services to courts.” As recently as May the president of the family division, Sir James Munby, called for ‘something to be done’, if a little belatedly. His remarks came after the postponement of a hearing because there was no Slovak interpreter available, which is significant. There has always been the need for translators and interpreters in many languages within the legal system, and with the expansion of the EU that need is greater now than ever before. Moreover, the fact that it is the expansion of such an economic entity as the EU means that more and more commercial transactions are taking place in more and more languages. That means there is an ever-growing need for translators and interpreters in the legal system outside the courts, where the Capita contract does not operate. Opportunities abound, as we reveal in our major feature on the subject. • Another area where major changes are taking place is in the planning system. There will always be arguments in favour of and against any planning application and the need for experts to enlighten those making the decisions – either at local level or at inquiries. Recently there has been more input into planning decisions from an environmental perspective – whether that is to protect bats or to promote an integrated environmental programme. A recent example was the publication of an Advice Note on water management within planning policy. It came from the University of Cambridge Institute for Sustainability Leadership and is available to download from the website of Susdrain (www.susdrain.org) which promotes sustainable drainage systems (SuDS). Susdrain is an arm of the Construction Industry Research and Information Association, which produces reports and carries out research into many sectors of the construction industry and its membership encompasses experts in a number of fields. • There has been much huff and puff over a BBC Panorama programme which claimed to expose the willingness of some experts to ignore the truth in their attempt to exonerate their clients. Simon Jelf, a barrister and trainer of expert witnesses for Bond Solon said “We are dismayed at these findings. The two most important qualities of an expert witness are honesty and objectivity. Credibility is everything, with the overriding duty of the expert being to the court. This again highlights the importance and significance of proper expert witness training.” Another expert quoted by Bond Solon said: “None of these named experts on the programme were acting under instruction of a solicitor. Except in extremely rare cases, all experts operating in the UK should only be capable of giving evidence under instruction of a solicitor.” So lawyers do have their uses, after all. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Further LIBOR shake-up among subjects of review by financial experts ‹ FOLLOWING THE ANNOUNCEMENT OF a shake-up of the

banking sector by Chancellor George Osborne in his Mansion House Speech on 11 June, the Treasury announced a joint review with the Bank of England and the Financial Conduct Authority (FCA) into the way wholesale financial markets operate. The Fair and Effective Markets Review will be led by Bank of England Deputy Governor for markets and banking, Minouche Shafik. Martin Wheatley (CEO of the FCA) and Charles Roxburgh (director general, financial services at HM Treasury) will act as co-chairs. In its announcement the Treasury said: “Recent events have demonstrated the need for authorities and market participants to take action to ensure fair and effective markets. Forward-looking in nature, this review reflects the government’s long term economic plan to ensure Britain remains a world leader in financial services, with successful institutions operating to the highest standards. “Drawing on the insights of public officials, market participants and end users of wholesale financial services, the review is also intended to reinforce confidence in the fairness and effectiveness of the UK wholesale financial market activity and influence the international debate on trading practices. Amidst recent serious allegations of misconduct in financial markets, the review will focus on those wholesale markets where the bulk of concerns about misconduct have arisen – fixed income, currency and commodity markets – although it could have applicability across a wider range of wholesale markets.”

The review will build on the tough action Britain has already taken to punish the wrongdoers and fix the financial system, including the work of the FCA to reform LIBOR and the Parliamentary Commission on Banking Standards, which has led to a new legal regime for senior managers. The review will run for 12 months. In the meantime, the government will take action domestically, including: • Extending the new legislation the government put in place to regulate LIBOR to cover further benchmarks in the foreign exchange, fixed income and commodity markets. Based on an early recommendation of the review, the legislation will include new criminal sanctions • Extending the Senior Managers and Certification Regime to cover all banks that have a presence in this country, bringing in foreign banks that have branches here • Expanding the tough UK criminal regime for market abuse. As part of that, the UK will not opt in to EU rules. Our own rules will be as strong as or stronger than those of the EU, but will preserve flexibility to reflect specific circumstances in the UK’s globally important financial sector. In his Mansion House speech, George Osborne said: “I am going to deal with abuses, tackle the unacceptable behaviour of the few and ensure that markets are fair for the many who depend on them. Markets here set the interest rates for people’s mortgages, the exchange rates for our exports and holidays, and the commodity prices for the goods we buy.” A panel of market practitioners will also be appointed, to involve and reflect the views of the financial services industry in the review. The panel will be chaired by Elizabeth Corley, CEO of Allianz Global Investors. The Treasury stressed that the review is without prejudice to the on-going investigation being conducted by the FCA into alleged historic misconduct in foreign exchange markets. q Image courtesy of M. Holland



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Flight delay ruling could lead to many more claims ‹ FOLLOWING THE COURT OF Appeal ruling in the Huzar vs Jet2.

com case, Bott and Co, who represented David Huzar in the case, issued an assessment of what the ruling means for claimants. “As the law currently stands,” said the statement, “technical problems are not considered extraordinary circumstances and so the airline must pay out compensation for delays caused by technical problems that aren’t hidden manufacturing defects. “The decision by the Court of Appeal to dismiss the Jet2.com appeal on Wednesday 11th June 2014 is binding on all courts in England and Wales and will remain so unless the appeal is upheld by the Supreme Court.” John Hyde of the Law Society Gazette described the ruling as potentially opening the floodgates to claims. He wrote: “The Court of

Experts give evidence to MPs in Gatwick investigation ‹ TRANSPORT EXPERT WITNESSES were among those giving

evidence to the Commons Transport Select Committee into another facet of air transport failure – the chaos that unfolded at Gatwick Airport on Christmas Eve 2013. In the early hours of Christmas Eve the basement of the North Terminal at Gatwick Airport flooded, causing some electrical systems to fail. As a result, 72 of the 260 flights due to leave Gatwick on Christmas Eve were cancelled, affecting over 11,000 passengers. Information systems did not operate and toilets were out of order. Launching a report examining the lessons to be learnt from this episode of airport chaos, committee chair Louise Ellman said on 11 April: “Airports must ensure that their contingency planning is good enough to ensure that future disruption will be met with well-drilled arrangements that are familiar to airport operators, airlines and other contractors, and which put passenger interests first. “Passengers need accurate and consistent information, must be able to identify who is in charge during periods of disruption and should have ready access to toilets and drinking water. If our largest airports cannot demonstrate they can look after passengers’ interests in this way then the Civil Aviation Authority must act.” q

Appeal today opened the way for potentially millions of claims against airlines that have run late services.” Hitherto the airlines have employed many lawyers and experts in defending claims on the basis that technical problems were ‘extraordinary circumstances’. Henceforth the argument is more likely to be proving whether the technical problem was beyond the control of the airline. As long ago as 2013 aviation experts GMR Consulting reported success in helping win compensation for a flight delayed by 22 hours. The firm reported: “Under EU law, passengers are entitled to seek compensation in the event that their flight is delayed by more than 3 hours. Until now, however, airlines were able to argue against any claims that were submitted. Citing a ‘technical issue’ was classed as an exceptional reason for a delay.” q

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YOUR EXPERT WITNESS SPECIAL FEATURE: TRANSLATING AND INTERPRETING

The headlines focus on the courts, but there is more to interpret than meets the eye ‹ IT IS NOT OFTEN that the inner workings of the justice system come to the attention of the

national media. Reporting on trials and proceedings is the norm, with headlines being grabbed by the trial itself and the sentence that follows conviction. The actual process itself is taken for granted. It was something of a first, then, when the controversy over the Ministry of Justice’s contract for translation and interpreting services began to hit the headlines. The first headlines appeared as early as March 2012 when the contract, awarded to Applied Language Solutions, first went live. Channel 4 News ran with Court translation service in crisis after cost-cutting deal above a report of a boycott by professional interpreters. That was followed by Court chaos as interpreter service goes private, reporting on a claim that unqualified interpreters were being used. There was also widespread coverage of a case where a court clerk had looked up words on Google to find them in Lithuanian. The saga rumbled on throughout last year, with a number of Parliamentary Committees criticising the ‘shambolic’ handling of the affair, culminating in a report in January of the withholding of payments by the MoJ and costs awarded by judges for wasted court time. One telling story that emerged last December was that only just over a quarter (26%) of interpreters surveyed by consultants Involvis worked for Capita, which took over Applied Language Solutions. Keith Moffitt, chairman of the Chartered Institute of Linguists, said: “The majority of professionally qualified and experienced justice sector interpreters will not work for Capita on principle and it appears that those that are working for them are feeling mistreated.” So where are the three quarters of interpreters in the justice sector making their living? The fact is that interpreters commissioned by the courts account for only a fraction of the work being commissioned by solicitors and legal executives across the country. In the following pages we look at the latest news and issues, both in the Capita saga and elsewhere, together with where solicitors can turn to find suitably qualified and experienced translators and interpreters. We highlight the growing need for interpreters and translators as the EU expands, report on the latest judge to slate the contract with Capita, ask whether a growth in underqualified interpreters is jeapordising justice and bring news of a new qualification for interpreters in police matters. R

The majority of professionally qualified and experienced justice sector interpreters will not work for Capita on principle and it appears that those that are working for them are feeling mistreated.

Keith Moffitt, chairman of the Chartered Institute of Linguists,

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YOUR EXPERT WITNESS SPECIAL FEATURE: TRANSLATING AND INTERPRETING

The legal process requires precision – in any language ‹ WHILE THE FURORE OVER the ‘rise of UKIP’ in the

European elections has generated a great deal of heat and very little light, one consequence has been to highlight the fact that migration within the EU from one state to another is now the norm and that citizens of any member state enjoy equal rights in another. That applies, above anything else, to access to the legal system. Be that the ability to defend oneself in court or process a contract for the supply of goods, that right has to include the ability to understand and be understood. Furthermore, if we are to claim to be a civilised society, that right of access to justice must apply to everybody. Indeed, the right to an interpreter in court is enshrined Article 6 of the European Convention on Human Rights. In addition, according to guidance issued by the CPS in its revised agreement: “It is…important to be satisfied that the interpreter is both competent and appropriate for the task before engaging their services. This means checking the interpreter's qualifications, experience of police and court procedures, professional accountability etc, and ensuring that gender, religious, political or cultural issues are addressed at the outset.” Her Majesty’s Courts & Tribunals Service states it has “a legal obligation under the Human Rights Act to provide language interpreters. For foreign language interpreters in any court proceedings we arrange and pay for interpreters in accordance with a standard set of terms and conditions.” The Welsh Language Act 1993 provides the right for any party to speak Welsh in legal proceedings in Wales in criminal, civil and tribunal hearings. For people with hearing impairment, arrangements can be made for sign language interpreters, lipspeakers and speech-to-text reporters. It is not, however, purely in court that translation and interpreting services are required in the legal system. The growing internationalism of all business and the soaring numbers of people

acquiring property overseas, whether to live in or rent out, has led to a massive increase in the need for documents to be translated into an unprecedented number of languages. Such documents require the utmost accuracy in translation. On the language and writing website Omniglot, Amit Sonowane says: “Translating legal documents needs accurate and correct translation and is one of the most difficult among all translation work. There are many things that need legal translation, including birth certificates, application letters, technical patent confirmation, deposition records, financial statement, evidence documents, litigation materials and business contracts.” Solicitors are more and more often finding the need to access translation services and need to be assured of the competence and accuracy of the translators they are employing. Consequently, the need for a body of well-qualified translators and interpreters is more crucial now than ever before and a number of professional organisations exist to guarantee the quality of services offered. They include the National Register of Public Service Interpreters (NRPSI) and the Chartered Institute of Linguists (CIoL). So, while Nigel Farage and his party may have upset many in the mainstream of politics, he may have unwittingly done the community of translators and interpreters a favour by waking up the population at large to the polyglot society we have become. R www.yourexpertwitness.co.uk

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YOUR EXPERT WITNESS SPECIAL FEATURE: TRANSLATING AND INTERPRETING

Judge attacks interpreter contract after hearing is adjourned ‹ THE LATEST MEMBER OF the judiciary to criticise publicly

the MoJ contract with Capita for the supply of interpreters in court was Sir James Munby, President of the Family Division of the High Court. Sir James adjourned an adoption hearing scheduled for 7 May because neither of the two Slovak interpreters booked for the hearing had attended. In the judgement on the hearing, which eventually took place on 15 May, Sir James stated: “I had no choice but to adjourn the hearing. How could I do otherwise? It would have been unjust, indeed inhumane, to continue with the final hearing of applications as significant as those before me – this, after all, was their final opportunity to prevent the adoption of their children – if the parents were unable to understand what was being said.” Adjourning the hearing, Sir James ordered Capita to file a written statement explaining what had gone wrong. He continued: “I directed that Capita’s relationship director, Sonia Facchini, file a written statement (with statement of truth) explaining the circumstances in which and the reasons why no interpreters had been provided by Capita for the hearing on 7 May 2014.” The statement, dated 14 May, gave rise to ‘three points

CHARTEREDINSTITUTEOFLINGUISTS Translating Improving the status of all

demanding notice’. Sir James said: “The first is that, according to Ms Facchini, the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted. The consequence, apparently, was that in this case the two interpreters who had accepted the assignment…later cancelled. “The second is that it is only at 2pm on the day before the hearing that Capita notifies the court that there is no interpreter assigned. The third is the revelation that on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. “This is on any view a concerning state of affairs. If the consequence is that a hearing such as that before me on 7 May 2014 has to be abandoned then that is an unacceptable state of affairs. It might be thought that something needs to be done.” Responding to the criticism, courts minister Shailesh Vara said: “The new interpreting contract was introduced to tackle the inefficiencies and inconsistencies in the previous system — and it has already saved taxpayers £15m in its first year. “The contract has delivered significant improvements so far, with record numbers of bookings now being made and fulfilled. We will continue to drive further improvement in performance and better value for the taxpayer.” R

Interpreting

qualified professional linguists.

Business Education

The Chartered Institute of Linguists serves the interests of professional linguists throughout the world, and is actively involved in language issues at both a national and an international level.

Our translators and interpreters are fully qualified and experienced, and subscribe to a code of professional conduct. If you need a translator or interpreter, search our Find-a-Linguist directory on www.ciol.org.uk.

www.ciol.org.uk

020 7940 3100

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YOUR EXPERT WITNESS SPECIAL FEATURE: TRANSLATING AND INTERPRETING

Use of unqualified interpreters on the increase, campaigners claim ‹ IN JANUARY, THE CAMPAIGNING organisation Professional

Interpreters for Justice (PI4J) published a report claiming that an increased use of unauthorised Tier 3 interpreters in court – those whose language skills are below A-level standard – will back-fire, creating delays and wasting taxpayers’ money. PI4J claimed that cases are being delayed or adjourned every day because Capita, the Ministry of Justice’s contractor for its language service contract, is failing to provide suitably qualified court interpreters. The report quotes a National Audit Office (NAO) Progress Update on the contract, published on 22 January, as saying that the proportion of Tier 3 interpreters working in courts has increased from 3% in October 2012 to 10% last November. Tier 3 interpreters have basic level training and no formal qualifications. They were used in over 1,400 cases in November. In 2013 the Ministry of Justice improved the contract terms for Capita but its performance targets are still not being met. The MoJ withheld £46,319 of payments up to November, while judges filed orders of £7,229 to cover the cost of translators failing to turn up. Of the 23 courts the National Audit Office questioned who used Tier 3 interpreters, 91% told the NAO they booked them because Capita could not provide the level of interpreter they wanted. Over

half said they didn’t seek approval from the judge before making the booking. Geoffrey Buckingham, chairman of the Association of Police and Court Interpreting, said: “The Ministry of Justice should explain why its contractor is using more and more Tier 3 interpreters without informing the courts. I suspect it’s because the qualified, professional interpreters are refusing to work for them and will have nothing to do with this Framework Agreement.” Keith Moffitt, chair of the Chartered Institute of Linguists, said: “There are a lot of unanswered questions which this new NAO report has rightly brought to light, including why only £46,000 in fines has been levied when millions of pounds of wasted court time has been caused.” Figures estimated by PI4J for the thousands of court case delays show that over £17m pounds of taxpayers’ money has been lost through failed trials and wasted court time since the contract began. Paul Wilson, chief executive of the Institute of Translation and Interpreting, commented: “I’d like to know how many subcontractors Capita is using and what checks are being made on the quality of interpreters they are providing – and also, why there is no independent scrutiny. The Ministry of Justice is relying on data provided by its contractor.” R

New degree-level accreditation for linguists’ diploma ‹ MAY SAW THE RUNNING of the first session of the newly-

accredited Diploma in Police Interpreting by the Institute of Linguists Education Trust (IoLET). The diploma is the new name of the former Metropolitan Police Test following registration on the Qualifications and Credit Framework. Its full title is IoLET Level 6 Diploma in Police Interpreting (QCF). The Diploma in Police Interpreting (DPI) is Ofqual accredited at Level 6 (first degree level) and has a credit value of 126. The DPI is unitised, meaning that candidates can chose to sit one or more units at their first attempt and will receive a certificate for every unit passed. It is necessary to pass all units within five years to receive the qualification. Successful candidates will be able to use the initials DPI after their name. Key changes and improvements to the qualification are: • National recognition and accreditation • An extension of the timeframe for completion of the qualification • from three to five years • Unitisation, meaning that each unit individually attracts credit as • well as the full qualification. Metropolitan Police Test candidates who have already passed some units of the Metropolitan Police Test will be able to put these towards the Diploma in Police Interpreting and will not have to re-sit those units. The DPI is widely recognised both by organisations who previously recognised the Met Test and those who will now use the DPI as a standard of eligibility for work. This includes acceptance of the DPI

as qualification to apply for registration on the List of Metropolitan Police Interpreters (Metropolitan Police Service); for registration on the National Register of Public Service Interpreters (NRPSI); for interpreting work with the National Crime Agency and also with UK Visas and Immigration; and for work in courts through the MoJ Framework Agreement by registration at Tier 1 with Capita TI. The next session is scheduled for November and applications are currently being accepted. R www.yourexpertwitness.co.uk

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Loss of earnings

By DEREK WILLIAMSON, forensic accountant at Goddards Chartered Accountants

‹ WE OFTEN HEAR ABOUT people tripping on a grape or other

such fruit in a supermarket and then claiming damages. However, many cases are based upon life threatening injuries which can leave the victim as a ‘cabbage’ – or worse. We recently had a case where a 67 year old driver was run over in a customer’s yard. The customer accepted full liability but his insurers argued for a minimal pay out because of the driver’s age. We were able to show that his employers had undertaken to employ him until aged 75 because his wife was crippled and chairbound and, as a result, entirely reliant on his earnings. The insurers eventually paid out £125,000 in compensation. In another case, an individual was accidently hurt by a block and tackle and rendered a ‘cabbage’. Using his earnings, together with his growth in earnings for the previous 5 years, we were able to convince the courts that a lump sum of £5 million was not unreasonable. When the West Drayton rail crash occurred, most of the passengers were breadwinners and so compensation claims would be based upon their earnings, together with a review of the growth in their earnings and the degree of injury. It is our experience that all too often claimants settle for too low a compensation figure – partly because the insurers have no concern for the victim and his or her loss of capacity or earnings, and partly because by ‘holding out’ they can force the claimant into accepting a lower offer because of their financial difficulties. It is important to not only review a victim’s earnings, but also their lifestyle and business and social development over the preceding

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years, as this can materially affect the level of compensation payable. If their lifestyle is sedentary and earnings steady, and the injury minor and inconvenient, then the compensation will by adjusted for inconvenience. If, however, they were active with earnings growing considerably and the injury has curtailed both their activities and their earning capacity, then the compensation will take account of the anticipated loss of earnings for the rest of their life, together with compensation for the loss of mobility. q


Forensic IT update Tony Sykes of IT Group looks at some recent civil disputes and fraudulent insurance claims and discusses a number of areas where hi-tech expertise can be of assistance.

AS IT EXPERTS, MOST instructions we receive from lawyers are in relation to IT disputes and whether software or systems are fit for their purpose. We also get instructed regularly in intellectual property disputes, particularly with regard to software copyright and IP theft. The combination of our IT consultants and our fully equipped forensic IT facility also means we offer a range of services to insurance companies and their lawyers when fraud is suspected. When it comes to assessing evidence to support a claim or a defence it is now, more than ever before, essential to look with as broad a view as possible. Evidence is all around us these days in the form of CCTV, SATNAV, mobile phone data, social media histories, gaming software and wi-fi / internet histories. We have been tracking criminals for years by many of these sources of data and evidence but now we are finding they are also increasingly relevant in civil disputes and in insurance assessment. Discussions around the extent of relevant disclosure are outside the remit of this short article but the underlying requirement in disclosure,

and particularly in e-disclosure, is that it is both proportionate and establishes the relevant facts. In smaller cases, e-disclosure can be very cost effective as it can present a great deal of documentation at a fraction of the cost of preparing and presenting it in hard-copy format. But without the tools necessary to analyse it effectively, that benefit is quickly lost. The same is true of evidence in insurance claims. CCTV is all around us and is often cited in accident investigations and associated insurance claims. All too often the CCTV available is too grainy to identify anyone or too unreliable to provide accurate timings and date information. But the combination of CCTV and other sources of times and locational data such as mobile phone cell-site data, call histories and so on can confirm timings and make evidence much more reliable. Early assessment of what may or may not yield key evidence is also essential in my view. There is little point in securing thousands or millions of emails if the communication of choice in the relevant areas was SMS or private Facebook messages. An early assessment of what is available and what may or may not be recoverable by un-deletion or from internet histories and so on can not only save time and money, but also result in a much stronger basis for the case. q • Tony Sykes, senior partner in IT Group, is a Chartered IT Professional and a Chartered Electrical Engineer. An experienced expert witness, he is a Fellow of the Academy of Experts and has more than twenty years’ experience as an IT and Electrical Engineering Consultant. IT Group provides a broad range of consultancy services including insurance assessment, forensic IT/telecoms/electrical systems examination, e-disclosure and expert services. For further information visit www.itgroup-uk.com.

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RICS launches expert accreditation service ‹ FOR THE VERY first time expert

witnesses in built environment matters are going to be assessed and regulated by the sector’s leading professional body. The RICS has launched a new international Expert Witness Accreditation Service (EWAS), which is open to all

property professionals. The service is intended to raise quality standards in a sector that has not previously been subject to professional regulation. Dr John Fletcher, director of alternative dispute resolution for RICS (pictured), said: “In the current climate, where the role

Water management placed firmly on the agenda for planners ‹ A NEW ADVICE NOTE for planners on integrated water management has been

published. The Advice Note, from the University of Cambridge Institute for Sustainability Leadership, provides a one-stop-shop to demystify water management and demonstrate the benefits of building it into plans and planning decisions. It shows how to manage surface water at source and through each part of its onward flow in an integrated way using sustainable drainage systems and links into the website of Susdrain – part of the Construction Industry Research and Information Association – and other guidance on SuDS. For the first time all the information on the water sector, including water supply, wastewater disposal, water quality and flood risk management, has been brought together for planners in a single source. The Advice Note presents the information in an understandable and accessible way to show planners what is possible and the benefits they can get from engaging with water issues in an integrated way through partnerships with the other bodies involved in water management. It signposts a wide range of other guidance and useful sources and presents numerous examples of good practice to show what is possible across the spectrum of water issues. It aims to encourage innovation and empower planners to engage with water issues and deliver multiple benefits. R

and quality of experts is under increasing scrutiny, a qualification that signals high standards of expertise and professionalism in this area of practice is not just worthwhile, but has become crucial. “The introduction of EWAS will send a positive signal to the market about the quality and standards of RICS accredited expert witnesses. Our aim is to give confidence to the public, markets and clients of member firms and the legal profession alike that RICS accredited experts are professional, follow an approved process and participate in an appropriate compliance regime.” The new service will operate as an industry benchmark for experts in the built environment. It will involve more robust evaluation and assessment for experts against clear criteria. Clients will be able to source RICS accredited expert witnesses online or over the phone. RICS experts work across a wide range of specialisms and provide expert opinion to lawyers working on property and construction subjects such as boundary disputes, dilapidation and building defects, landlord and tenant disputes over services and disputes over design matters. Dr Fletcher continued: “EWAS will provide clients with quick and easy access to highlytrained and assessed expert witnesses who are regulated by RICS. R • For more information see the EWAS web pages at www.rics.org.

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What’s a tree worth? By MARK CHESTER of Cedarwood Tree Care

‹ THE FACT THAT AMENITY trees can have a value is a surprise to

many people. There are different ways to value a tree, depending on the circumstances. It can be in connection with litigation, where it is important to assess whether a claim is reasonable. It can also be linked with planning permission, where it may resolve problems being encountered. The traditional valuation for trees has been the timber, and this approach remains the main application. For amenity trees, the valuation can depend on whether a tree has been irreparably damaged and needs to be replaced. It may not be appropriate, or desirable, to replace a tree, if for example it has been damaged but not destroyed, or the setting could not reasonably accommodate a new tree. In these situations, the calculation is one of compensation. If a tree is restricting the development potential of a site, its value can rise sharply. Retaining it may add value to the development, and whilst a claimant may have suffered from the experience surrounding the damaging of their tree, the courts have established that any settlement needs to be reasonable and proportionate. Having experience in quality control of tree work, I can assess whether pruning has been detrimental and if a claim is spurious. A claim should be informed and evidence-based, enabling a realistic settlement. There should be several quotations if possible. One case, where this didn’t happen, involved a boundary dispute. Some conifers were removed after verbal agreement. Later, a the claimant pursued a claim for compensation when they realised the trees had been on their land. The defendant was willing to settle, but found the claim rather steep. The claim was based on a single, out of date quotation from a supplier who was now unable to fulfil the order. The trees would have needed a crane to lift them in to position, which the site could not reasonably accommodate. I identified several suppliers able to provide suitable replacement trees at a more proportionate cost and applied the Replacement Valuation method, which makes an allowance for trees that are not in pristine condition, to realistically value what were, in essence, some modest conifers. I guided the defendant during mediation and equipped him to resolve the claim. Appreciating what merits best practice, I was able to guide one client who instructed ‘professional’ contractors to prune her tree. Whilst her brief was vague, it was typical of the lay client, and informed guidance was required. The resulting work was poor and I was able to inform her as she pursued options for compensation. However, with a separate claim for damage to a mature cherry tree, where the pruning was of a professional standard, I was able to guide the defendants in their response. Where trees may be an asset to a development, there is benefit in emphasising this. Indeed, research by Professor Katherine Woolf in the US has identified situations where retaining trees within individual building plots can add tens of thousands of dollars to the value. Being able to attribute value to trees can also be used to resolve conflict between different partners during negotiations and to help ensure that a high standard of landscaping and replacement planting is undertaken when the removal of trees is agreed.

In the context of development, a case in Chester was recently reported. A landlord sought to maximum profits from a property converted to apartments with the creation of a parking bay. He instructed contractors to begin ground works and demolish a boundary wall in the front garden even though this would damage a yew tree within the garden, subject to a Tree Preservation Order. He had previously been refused permission by the local authority to fell the tree, which subsequently had to be removed following damage from the ground works. Following a successful prosecution, under the Proceeds of Crime Act for the first time in such a case, the judge applied this legislation to calculate the fine. In addition to costs and a fine for breaching the TPO, the defendant was fined £12,000 in relation to the parking space – a total fine of £28,000. The fine was based on the value of the parking space being between £11,000 and £12,800. In one case where I acted, utility contractors accidentally cut away onethird of a mature yew tree in the claimant’s back garden. The instruction to prune to two metres clear was misunderstood to be from the trunk, not the overhead line. The tree was more than two hundred years old – still young as yew trees can live for more than 1,000 years. The defendants offered several nursery trees in compensation, when a semi-mature replacement yew, smaller than the material removed, costs about £10,000. It is important to be proportionate when pursuing a claim. Whilst one may wish to make the other side ‘pay’ for what they have done, especially if anguish has been experienced, this is not something the courts tend to allocate much value to. However, an informed, evidencebased claim can help to ensure a realistic settlement. q • Mark Chester is an independent arboricultural consultant specialising in Amenity Tree Valuations, Tree Preservation Orders and advising on planning applications involving trees.

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Interpreting EU laws on animal welfare on farms and during transport

By DAVID PRITCHARD of Veterinary Consultancy Services

‹ BOTH ANIMAL DISEASE and animal

welfare issues attract widespread interest, especially disease spread from animals to man (such as some types of influenza) and intensive livestock farming. The EU Eurobarometer studies of public opinion over the last decade have shown widespread and increasing concern throughout the now 28 member states over the conditions in which food animals are raised. Coupled with food scares, such as BSE and horse-meat, it is not surprising that about 25% of the acquis communautaire of the European Union is made up of veterinary legislation. Due to the complexity of many welfare issues and differences in customs and priorities between member states there is considerable variation in interpretation of some aspects of EU welfare rules at national level. Indeed, even at a case level there may often be variation of interpretations which makes informed independent professional veterinary advice essential for courts dealing with such cases. Animal welfare issues usually lead the post bags of British MPs and MEPS, often egged on by highly active and effective welfare NGOs. This has resulted in a steady stream of legislation by both the Council of Europe and the European Union which curiously remains as a minimum standard to which many countries, including the UK, have additional standards. This has been overlain during the last 20 years with voluntary farm assurance schemes

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which have aided compliance of farmers with the law. Some assurance schemes are set at higher levels and have become popular with supermarkets and consumers and now represent the majority of production in several sectors. It may therefore be argued that they also now set the standard for the levels of actions which a keeper of livestock may reasonably be expected to meet by a court. Although animal protection law (cruelty and abuse of animals) has largely remained at national level, most of the law on standards of care and welfare of animals is now European. These are summarised in the recent Better Training for Safer Food (BTSF) publication available at http://ec.europa.eu/eahc/ documents/food/food-animal-welfare_en.pdf. The Council of Europe has produced conventions on the protection and care of farmed animals, research animals and set conditions for international transport. These conventions are now incorporated into the EU acquis along with parts of the softer recommendations. The UK, along with several other countries, has also implemented the recommendations by secondary legislation or by incorporation in statutory codes of practice. A major driver for EU animal welfare laws was to establish equivalence to facilitate the Single European Market, however due to the strong political pressures they are minimum standards. Several countries have introduced or kept the ‘higher’ standards they cherished before accession. The UK has also introduced, well ahead of EU laws,

higher welfare standards for pigs and banned all crates – except farrowing/lactation crates which help protect young piglets in indoor systems. The EU Directive which came into force in 2013 only bans gestation cages and both farrowing/lactation and post service crates are allowed. Although many European countries put into effect the Council of Europe conventions and their recommendations effectively ban single caging and/or force feeding (for foie gras production) and live plucking of poultry (for down for duvets), both the national laws of France and Hungary have a different interpretation and allow such practices. In practice, perhaps more than most EU laws, the text of several animal welfare EU Directives and Regulations has often been the result of political bargaining from entrenched positions. This requires an understanding of the underlying science and best practice to provide a sensible interpretation of such texts and ensure the interpretation will meet the desired objective of improving the lives of farm animals. For example, the transport regulation sets parameters for stocking densities but not the height of compartments. As adult cattle can travel on two decks and there is a wide variation in the height of different breeds of cattle, a common non-compliance found at roadside checks is insufficient head height. This can result in both additional stress and injury leading to unnecessary suffering. In dealing with such cases, expert advice should


include not only the allometrics of the cattle but also how modern livestock transporters are constructed and operated. Decks can be raised and lowered and vehicles approved for long journeys may have suspension – allowing heights to be changed to optimise carrying capacity to meet the differing national standards on the maximum heights of lorries. Likewise, the issue of ‘fitness to travel’ may be a subject of dispute. The regulation does provide some useful guidance and includes the concept of fitness for the intended journey. This requires professional judgement based on both the scientific evidence and practical experience. Research has shown that a short journey for a group of sheep, in a trailer with metal sprung suspension and towed by a utility vehicle on C roads with a poor driver, would be more stressful for an animal than a long journey, mainly on motorways, on a trailer with air suspension driven by a trained and careful driver. Most EU welfare legislation has been based upon scientific reports of the European Food Standards Agency along with an economic impact assessment. A detailed understanding of such background often provides

information of use in providing evidence to help the court to better understand the intention of the legislation and how it contributes to the improvement of welfare and how certain actions may result in unnecessary suffering. As both feather pecking in chickens and tail biting in pigs are major risks for the welfare of these animals in all husbandry systems, EU rules allow measures at national levels to permit the so called mutilations of beak trimming and tail tipping. Both of these injurious behaviours can be minimised by the provision of optimal management and environmental measures. In practice, scientific studies have shown that outbreaks of both feather pecking and tail biting have complex multiple causes but that both may be reduced by careful consideration of matching particular genotypes to environments and providing high levels of management to reduce exciting factors. EU law does outline the environmental enrichment for both these species but advice is often needed to determine if the actions taken by the keeper have been reasonable and sufficient to comply. R

The author, David Pritchard, is a director of Veterinary Consultancy Services Ltd which provides advice on expert veterinary witnesses. He was formerly senior consultant on animal welfare at DEFRA and has experience of managing welfare research, inspections and enforcement and the negotiation of EU rules on both animal welfare and animal health. He has chaired both the standing committee for the Council of Europe Convention for the Protection of Farmed Animals and the advisory board of EUWELNET which co-ordinated the views of member states and stakeholders on how best to implement and enforce EU legislation. He currently co-ordinates some of the EU BTSF training courses on animal welfare for official veterinarians.

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Welcome to our A to Z guide to the websites of some of the country’s leading expert witnesses. If you are one of our many online readers simply click on any of the web addresses listed below and you will be automatically directed to that particular website. To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk AAA Medicolegal Reporting Ltd.

Fingerprint Analysis

The Medicolegal Practice of Donald Campbell Consultant Neurosurgeon.

Experts in fingerprint legislation, standards of fingerprint evidence and fingerprint development techniques.

www.aaamedicolegalreporting.co.uk

www.fingerprint-analysis.co.uk

Dr Aman Ranu

Inclusion.me Ltd

Expert Witness in Clinical Forensic Medicine. Injury interpretation • Drink/drug driving cases

Medico-Legal & Second Opinion Occupational Therapy Services.

www.expertphysician.info

www.inclusion.me.uk

A M Associates

Dr Joshua Adedokun

Chartered Building Surveyors & Project Managers. Expert Witness and Dispute Resolution Services.

Chronic pain expert following personal and occupational injuries. Wide experience in medical negligence claims.

www.am-associates.co.uk

www.expertpainreports.co.uk

Building Design Workshop

Lakes Medico Legal

• Architects • Expert Witnesses • Project Managers • Energy Consultants

Our specialism is musculo-skeletal trauma and we provide a full range of medico legal services in this field.

www.expertsbdw.com

www.lakes-medicolegal.co.uk

David Bunker Arbitrator & Mediator

Dr Laurie Durand (Medlegal Consulting)

Disposal & acquisition of businesses, management buyouts, shareholder & partnership disputes and taxation enquiries.

Expert witness services for court appearances countrywide in Forensic Psychiatric and Child Protection proceedings.

www.david-bunker.com

www.medlegal.co.uk

David W Dyson

Mr Marcus Ornstein

Firearms related Civil and Criminal cases • Negligence and liability • Technical Interpretation

Recently (this year) retired general surgeon with expertise in general surgery, breast disease, hernia and abdominal trauma.

www.firearmsexpert.co.uk

www.marcusornstein.co.uk

Elizabeth J. Soilleux

Marsh & Parsons

Expert Witness Pathologist with a particular interest in haematopathology.

Valuation expertise in rental and capital matters in respect of both residential and commercial property.

www.expertwitnesspathologist.co.uk

www.marshandparsons.co.uk

Expert Forensics

Dr. Martin Barrett

Independent forensic consultancy service run by experienced forensic practitioners.

Forensic physician and expert witness in cases concerning interpretation of injuries and custody medicine.

www.expertforensicsltd.co.uk

www.forensic-medical.co.uk

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Maurice W McLain

Mrs Robyn Webber

Consultant in Accident & Orthopaedic Surgery. Specialist in whiplash and sports injuries.

Private Consultant Urological Surgeon. Medicolegal reports for both medical negligence and personal injury cases.

mauricemclain@btconnect.com

www.robynwebber.com

Medical Illustration UK Ltd

Professor Roger James

High quality photography for personal injury claims and other medico-legal requirements

Independent Health Consultant and Expert Witness in the field of cancer services.

www.migroup.co.uk

www.independenthealthconsultant.co.uk

Mr. Michael Hodge

Mr Simon Bramhall

Maxillofacial and Oral Surgeon. • Personal Injury • Criminal Cases • Clinical Negligence

Consultant HPB & Liver Transplant Surgeon. Significant medico legal work undertaken in his area of expertise.

www.consultantoralandmaxillofacialsurgeon.co.uk

www.simonbramhallhpbsurgeon.co.uk

Mr Michael Thompson

Dr Thomas C M Carnwath

Specialist in bowel cancer and the effects of delay in diagnosis on survival.

Consultant Psychiatrist and expert witness in medical negligence and personal injury cases.

www.expertcolorectalsurgeon.co.uk

www.psycholegal.org

Optimum MedicoLegal

Mr William Stuart Hislop

A Premium Service for Psychiatric. Medico Legal Reports.

Consultant Oral and Maxillofacial / Head and Neck Surgeon. Specialist in ablative and reconstructive surgery.

www.optimummedicolegal.com

www.wshislop.co.uk

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MEDICAL NOTES ‹ THE MEDICAL PROFESSION IS continuing to attract attention which is less than welcome. In

this part of the world that centres on the continuing saga of the University Hospitals of Morecombe Bay NHS Trust, where a series of scandals regarding maternity and other services led to a series of claims. The chairman appointed at the beginning of last year has attracted praise from many quarters for his work in beginning to turn the trust around, but he has now resigned and the local MP is concerned that the Care Quality Commission will not adequately acknowledge the improvements that have been made. • That trust included the hospital at Barrow-in-Furness in south Cumbria. Even more recently – on 11 June – the North Cumbria University Hospitals NHS Trust reported a significant increase in the number of ‘serious incidents’ in the past year – 100 as compared with 44 in 2012/3. Staggeringly, there were only five reported in 2011/12. That huge jump has been put down to a reticence in the past of staff reporting incidents. That fear of whistle-blowing has been blamed for the persistence of a culture of poor care that has led to many of the scandals. Despite assurances by Health Secretary Jeremy Hunt, as recently as April an employment tribunal found in favour of a cardiologist who had been ‘hounded out of his job’ and subjected to a horrendous smear campaign. • Most cases of medical negligence, however, do not occur as part of a systemic failure on the part of a trust or single hospital, they are regrettable single lapses by otherwise perfectly competent people. Many of the cases reported over the years by this publication fall into that category, but they can often leave the lives of the victims in tatters. That is why the legal profession is fighting a battle against the policy of the current government to remove legal aid from many of those looking for recompense for often devastating errors. • The most acute and palpable result of an injury of any kind – however caused – is pain. Very often a calculation of compensation for personal injury will include an amount for pain suffered as a result. In the medical sphere, however, there may be cause for complaint because of failure to adequately treat or manage pain. There is a panoply of resources to treat pain of many kinds – more sophisticated now than ever before – but sometimes things go wrong. As often as not it is simply that a failure to listen properly means the extent of the pain was not appreciated, in other cases it can be the result of mechanical failure. The measure of pain is known as the visual analogue scale (VAS) with a score of 0 for no pain and 10 for ‘worst possible pain’. We’ve all done it: “On a scale of one to ten?” – “Twelve!” • One occupation where injury and even death are part and parcel is the military. And while the treatment of physical injuries has been at the cutting edge of medical expertise, resulting in many advances outside of the military, treatment of the psychological scars of battle has historically been less outstanding. Now, with the withdrawal from Afghanistan, a marked increase in cases of battle stress is expected. It is heartening, then, to hear that an MOD partnership mental health team has been recognised with the mental health award at the Nursing Standard Nursing Awards. Congratulation to Veterans First! q

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The Jackson Reforms how can the legal team help the expert witness? By DR ANTHONY CLARKE, Consultant in Rheumatology & Rehabilitation, Bath

‹ VERY FEW OBJECTIVE observers of the present personal injury

scene would disagree with the basic principles of the Jackson reforms. Whiplash claims have spiralled out of control, despite the evidence that, as a general rule, this condition is mild and non-disabling. Litigation time tables have dragged on and on, preventing claimants getting on with their lives and costs, especially in small claims, can be higher than the value of the claim. There is a clear duty on experts to co-operate by sticking to time tables, answering questions posed in instructions and keeping areas of disagreement to a minimum, based on a good scientific evidence base. It goes without saying that we should not ‘plead the claimant’s case’, nor omit to mention ‘inconvenient’ facts that undermine the final opinion. However, it is not unusual to discover that we are not always being helped by those instructing us. I am amazed how often I am sent instructions that are just examples of ‘cut and paste’, with little or no detail of the circumstances of the alleged event or other failure of duty of care. Experts are advised that they can refuse to accept instructions or consult the Court if in doubt. The reality is that often appointments are made and claimants arrive, frequently after long journeys, and the interview has to go ahead. There is the advantage that the expert can take a history without any built-in bias, but on the other hand the lack of detail may make it difficult for the expert to appreciate the basis of the claim and hence aid the Court at arriving at a fair judgement (and hence save time in the report preparation). Many claims involving medical experts require an examination of the medical notes. About one in ten of the instructions I receive come with the notes properly arranged, with numbered pages and a working chronology. More often there is one of three nightmare scenarios. The first is an incomplete bundle of randomly arranged, poorly photocopied notes ‘with more to follow’. These bundles invariably have pages missing (most often the second of the consultant’s letters, with the important issues of diagnosis, management and follow-up). To save paper, the Lloyd George cards are photocopied two to a page, making continuity impossible. Secondly, there are the multi-file bundles, with everything imaginable sent through, apparently shuffled by some demon Las Vegas blackjack dealer, with any number of blank pages, repetitions and, from time to time, notes belonging to another claimant! The largest bundle I ever received consisted of seven large files and one small one! On another occasion it took me four hours to get the notes into a readable, date-ordered file. The result was a four-figure sum invoice for sorting the notes alone. At least with this type of bundle it is possible to warn the instructing solicitor of the likely cost of preparing a report. Which brings me to the final nightmare, the notes sent through on disc. Apart from the difficulty of opening some of them, it is very difficult to estimate the time to be taken to go through the notes. It may be my age, but file sorting by scrolling is quite unsatisfactory. If there is no covering index sheet (which there rarely is), then there may be, say, a file containing 100 pages, which when opened turns out to be the nursing notes from a gynae operation twenty years previously in a claimant with a whiplash injury a year ago. However, every page needs to be scanned, to ensure that the critical Accident Department notes are not to be found between the gynae notes and some other irrelevant items. Perhaps the most irritating discs are those with fifteen or twenty files, each password protected, with no more than 25 pages in any file. The simple fact of the matter is that most of us print off the pages from which we need to compile our report, and to keep readily available for reference when answering Part 35 questions, holding conferences prior to

producing joint statements with other experts or counsel or preparing for a Court appearance. Just add to one’s woes, discs sometimes arrive broken and on one occasion the solicitor’s clerk managed to staple the disc to its cover! As an aside, surveillance CDs are far superior to the old VHS tapes. As a consultant in rehabilitation medicine, I have over the years been used to being asked to give the final opinion in complex personal injury cases, with frequent deadlines for the report measured in days rather than months. This is far less likely to happen now, because of more stringent case management, but has been replaced by much tighter Court timetables. The new problem is the expert not being properly advised as to the timetable. Last month I was asked to provide a joint statement with another expert. Admittedly matters were made more difficult by me being supplied with the totally wrong contact details (and the other expert’s report did not have them!), so when I enquired of the solicitor about the correct details, I also asked about the Court timetable and was a little surprised to discover that the deadline had already passed! What is more, the other expert was on leave and on his return it transpired that he had had no instructions to talk to me from his instructing solicitors. Today, as I sat down to finish this article, I had a telephone call from another expert, saying that we had to prepare a joint statement in the next two days! I had had no instructions but they arrived about an hour later, saying that the Court timetable required disclosure within three weeks. I appreciate that solicitors are often anxious that if the expert is aware of the deadlines, then there is a risk that he or she will delay returning the report until the last possible moment. It is, however, quite reasonable to ask that the report is available by a given date, to allow consideration by the instructing party prior to disclosure, or for the expert to agree, prior to accepting the instructions that the report is available within, say, four weeks after examining the claimant, assuming all the relevant documents are available. If I am now being asked to given a binding estimate of the size of my final invoice, then it is only reasonable that those instructing me should ensure that I am made aware of what the Court expects and provide me with the documentation in a form that will allow me to complete my task expeditiously and accurately. Simple co-operation by solicitors and experts is a very good way to speed up the legal process and reduce costs. q

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Common areas of litigation in gynaecology By MR JOE AQUILINA MD FRCOG MFFP

‹ GYNAECOLOGY IS A FIELD of medicine that can be a minefield

for those in the medical profession. In this article I examine some of the most common areas where litigation can occur – and look at some of the ways in which it can be avoided.

Consent A signature on a consent form does not equate to valid consent. Before seeking a woman's consent for a test or intervention, it is important to ensure that she understands the nature of the condition for which it is being proposed, the benefits and risks inherent to the procedure and the likely consequences. She must also be made aware of the risks of receiving no treatment, what can realistically be expected following surgery as well as any reasonable alternative treatments. A discussion of the most common risks, as well as rare but significant risks, is essential to ensure informed consent. Litigation related to consent may also arise from the performance of procedures that were not discussed with the patient, such as the removal of both ovaries when consent was only given for the removal of one.

Hysteroscopy The failure to recognise uterine perforation and subsequent internal organ injury is the most common cause of litigation in this area. When there has been internal organ damage, such as to the bowel, patients may remain asymptomatic for 2–10 days before the nature of the injury, often thermal, becomes apparent. Factors that increase the risk of perforation include cervical stenosis, acute anteversion or retroversion, lower-segment fibroids or intrauterine synechiae and operator inexperience. Uterine injury without the use of an electrical source can usually be managed by observation of signs of vaginal or intraperitoneal bleeding. However, if an electrical source has been used, laparoscopy is advised to rule out bowel injury.

Urogynaecology Litigation related to urogynaecology cases are centred on the use of meshes and related complications. Clinicians undertaking synthetic meshes for the treatment of pelvic organ prolapse should familiarise themselves with NICE guidance on their use. General gynaecologists must also be aware that without a sufficient workload, continuing to perform complicated urogynaecology procedures is fraught with the risk of litigation.

Hysterectomy Failure to detect ureteric injury is the most common cause of litigation related to hysterectomy. Damage to the bladder and bowel are probably more common but are not generally considered to be negligent, especially if the procedure is difficult due to scarring from a previous surgery. A successful claim for compensation is unlikely when the injury is recognised and has been appropriately repaired. A missed bladder injury may lead to a vesico-vaginal fistula and a missed bowel injury could result in sepsis or peritonitis. These will frequently be classed as negligent. It may be argued that some occur because of ischaemic necrosis in the bladder base, and these cases may be defensible. Therefore, timing of onset of the leakage is important. Early leak is probably a result of direct injury whereas later leak is a sequel of ischaemia. Litigation may also be related to unnecessary hysterectomy or an oopherectomy. Questions relating to the indication for surgery can arise particularly when a hysterectomy is associated with complications and less invasive options such as an intrauterine contraceptive or an ablation have not been offered or discussed. q

Laparoscopy The most common cause of litigation involving laparascopy is internal injury and a delay in recognition of these complications. The initial laparoscopic entry into the peritoneal cavity remains the major contributor to bowel injury and delayed recognition is a major factor in assessment of liability. These cases can be difficult to defend, particularly if the patient's medical records fail to document that close monitoring was undertaken and deterioration in their condition managed in a timely and appropriate fashion.

Sterilisation The most common reason for litigation here is conception poststerilisation. This could be a luteal phase pregnancy which was not identified at the time of surgery, an actual failure because the procedure was inappropriately or inadequately performed or recanalisation of the fallopian tubes occurring after the procedure. If pregnancy occurs within 12 months of sterilisation it is likely to be a failure of the technique whereas after 12 months it is more likely to be recanalisation. There are also recorded cases of litigation because of failure to perform procedures concurrently for which the patient has consented, such as removal of an IUCD. More serious is non-consented tubal sterilisation performed at caesarean section (CS) or regret related to sterilisation done at the time of CS when the patient was consented immediately before the procedure. Medico-legal law relating to maintenance of the child born after sterilisation is controversial. In the McFarlane ruling it was held that parents of healthy children born after sterilisation were not entitled to the costs of bringing up the child. However, a valid claim can be made following the birth of a child with disabilities based on the additional cost of raising a child with those disabilities (Parkinson). www.yourexpertwitness.co.uk

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Cardiff conference emphasises role of speech therapy in cutting offending ‹ DESPITE THE FACT THAT around 70% of young offenders are likely

to have communications needs, in Wales only a very few have access to speech and language therapy. That was the message from an event held in Cardiff on 14 May by the Royal College of Speech and Language Therapists (RCSLT) where experts in criminal justice met speech and language professionals to discuss the importance of speech and language therapy within the criminal justice pathway. Improving the communication skills of offenders by providing targeted speech and language therapy is known to reduce the risk of re-offending significantly. Opening the event was the Welsh Government’s Local Government Minister, Lesley Griffiths AM, who said: “The Welsh Government is determined to do all it can to help young people out of a life of crime, or even better, to prevent them from starting. We can only achieve this by working together to ensure a full range of quality services, including speech and language therapy, are in place to meet these complex needs. “The Youth Justice Board is developing a new framework, AssetPlus, which will improve outcomes for young people who are currently within the criminal justice system or at risk of entering it. Alongside this hugely important work, we are also drafting a Youth Justice Strategy which will improve the way we all work with these vulnerable young people.” Half the UK prison population has been identified as having literacy difficulties and Home Office studies show that around 35% of offenders only have speaking and listening skills at a basic level. Dr Alison Stroud, the RCSLT Wales policy officer, declared: “We recognise that the Welsh Government is committed to improving literacy skills, and providing anger management and drug rehabilitation courses for young offenders. However, studies show nearly two-thirds of offenders are unable to access these programmes because of their poor language skills.” Young offenders with communication problems, she said, have difficulty: • Expressing themselves through speaking, writing or non-verbal • communication • Understanding the spoken or written word, body language and facial • expressions • Listening to what is being said to them

The event at Cardiff was opened by Lesley Griffiths AM

• Remembering the information they are given • Expressing their feelings and emotions in an appropriate way, for • example they may use violence instead of words to express themselves • Relating to others in socially acceptable ways. A two-year study demonstrated the value of speech and language therapy in young offenders’ institutions. Nearly two-thirds of juvenile offenders who underwent a screening process were identified as having difficulties with speech, language and communication. Because speech and language therapy pinpoints the specific communication needs of young offenders, they can develop their language skills in a short space of time and dramatically reduce their risk of reoffending. Targeted support from speech and language therapists can make a major difference by helping offenders to: • Improve body language and non-verbal skills • Develop language skills for daily life • Take part in a conversation, by appreciating turn taking • Develop their vocabulary and the way they put sentences together • Use techniques to express their feelings and emotions • Deal with the triggers that spark anti-social behaviour. q

Training package can help spot

hidden communication problems ‹ A SHOCKING 70% of young offenders

have speech, language and communication needs that are often undetected and can contribute to antisocial behaviour, exclusion and in many cases, a custodial sentence. The Royal College of Speech and Language Therapists (RCSLT) has announced it is taking action to help those working with vulnerable people to spot this hidden disability and improve life chances as well as break the cycle of reoffending for those in custody. The RCSLT has launched The Box – What’s it like to be inside?, a training package which brings together the expertise of speech and language therapists working across the country in the justice sector. Available for all professionals who come into contact with vulnerable people – both witnesses and offenders – the course is designed to help

develop an understanding of communication difficulties. The online tool and face-to-face course help spot warning signs, reduce aggressive behaviour and increase productivity by enabling professionals to make more of an impact. Kamini Gadhok, chief executive of RCSLT, said: “We know that a staggering 70% of

Taken from The Box Trailer

young offenders have problems with talking, understanding and listening but, alarmingly, these difficulties are not always obvious and it can be very easy to miss the warning signs. “This is where the cycle begins. People around these vulnerable individuals mistake their difficulties for behavioural problems – or just not wanting to engage – and begin to give up on them. This can result in frustration and often manifests as challenging behaviour. “Working in the justice sector can be challenging and not being equipped to identify and support those with communication needs makes it even more difficult. Using speech, language and communication expertise can help professionals to adopt simple techniques into their daily working life to make their job easier and safer.” q www.yourexpertwitness.co.uk

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Rehabilitation Hannah: a case study ‹ HANNAH IS NEARLY 18 and has a diagnosis of four limb cerebral

palsy and significant global delay. She has always been in special educational settings until recently when her parents decided to home school her. However, whilst she had been receiving statutory services in school – such as speech and language therapy, occupational therapy and physiotherapy – none of these provisions would see her outside of this setting. There is also an on going debate as to whether she should be seen by adult or paediatric services. However, whilst these services have been debating the issue, Hannah has not been having any input and her time is mostly spent at home with her parents. Hannah’s case manager at ILS Rehabilitation Solutions, one of the UK’s leading providers of rehabilitation services, recognised the need for a quick and holistic approach to her therapeutic care and support for her parents. An occupational therapist, physiotherapist and speech and language therapist were therefore commissioned to complete an assessment and then to carry out on going support for Hannah. During Hannah’s initial speech and language assessment she was very drowsy and could only stay awake for a few minutes at a time. Luckily, the flexibility provided by ILS Rehabilitation Solutions meant that another assessment visit could be arranged for a week later. Whilst at the next session Hannah was still drowsy, the therapist was able to establish a baseline from which to start some on going therapy work with her and the family. It was felt by the therapist that Hannah needed to have opportunities throughout her day to make simple choices. At that time Hannah did not have any way of communicating to her parents what she wanted to do and she could not independently move to get the things she wanted. Over the next few sessions the speech and language therapist, with her parents, worked on developing Hannah’s eye pointing between two objects as a way of showing the item she wanted. Whilst this was a small step, it allowed Hannah to have the potential to choose which DVD she wanted to watch or which equipment to use in the sensory room. The opportunities were now endless. Hannah clearly enjoyed this sense of control and when given the opportunity to choose her favourite item, chocolate buttons, she became animated and giggly.

Clearly Hannah now needs lots of opportunities to practice this skill in a variety of situations and with a variety of people. Her family and the other therapists involved in her care have therefore been given a home programme to target these skills and to ensure that everyone is doing exactly the same thing. q

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What may explain persistent symptoms following a mild head injury? By DR LINDA MONACI, Consultant Clinical Neuropsychologist

‹ A ROAD TRAFFIC ACCIDENT, or any event which involves trauma to

the head, may result in a brain injury which can cause cognitive, emotional and physical symptoms. The severity of a brain injury is usually graded as mild, moderate or severe and this can help provide guidance on recovery and the rehabilitation required. Only a minority of individuals still experience cognitive and emotional symptoms a year after a mild brain injury. To date, there are disagreements about the conceptual framework in which persistent symptoms after a mild head injury should be considered and consequently treated. Some experts regard these symptoms as due to the neuronal and pathogenic process associated with a traumatic brain injury; others regard these symptoms as merely co-occurring after a brain injury, triggered by the same event, but produced by different mechanisms. To complicate matters, there are also cases in which a very minor blow to the head can cause persistent cognitive and emotional symptoms, although arguably any brain injury is very unlikely. Given the secondary gains involved in a compensation claim, it is always necessary to consider symptom magnification and/or cognitive underperformance as potential contributing factors to an individual’s presentation.

Case study

to correctly identify the severity of a known or suspected brain injury as well as any pre-existing vulnerabilities, which in turn informs on recovery and provision of the most effective rehabilitation treatment – as well as impacting on the potential financial value of a case. However, as Professor Jane Ireland’s review has found, some practitioners appear to offer medico-legal services but lack the required professional qualifications. This is why it is important that only qualified clinical neuropsychologists are involved in carrying out medico-legal evaluations of cognitive functioning. For those outside the field, being a chartered psychologist with the British Psychological Society (BPS) does not necessarily indicate that the psychologist is registered with the Health and Care Profession Council (HCPC), a statutory requirement to be employed in the NHS. Recent BPS Professional Guidelines (2013) stated that “...although the title of clinical neuropsychologist is at present not a legally protected title, to refer to oneself as a clinical neuropsychologist, a consultant clinical neuropsychologist or to offer clinical neuropsychology services whilst not listed on the SRCN, is acting against this professional and ethical guidance. Professionals undertaking QiCN training should always have their clinical neuropsychological work supervised by a member of the SRCN”. q

The following case does not represent any single particular individual in order to preserve confidentiality. A young man does not receive any formal cognitive assessment or guidance on recovery by NHS services following a mild traumatic brain injury during a car accident. NHS treatment focuses on his other injuries, but he does experience cognitive problems. He goes online and reads about brain injury symptoms. During rehabilitation, funded by a compensation claim, his cognitive symptoms are attributed to emotional disturbances and he does not receive any expert formal assessment of his cognitive functioning. He is referred to a charity for people with head injuries where he shares his difficulties with other attendees. He starts feeling that his life is ruined and feels resentful towards the driver of the car in which he travelled. Twelve months post-accident he has not yet returned to work due to his cognitive problems. He still suffers from anxiety and depression and his activities of everyday living are very limited. Eventually he receives an expert clinical neuropsychological assessment as part of his compensation claim. At formal assessment his cognitive test results indicate intact cognitive skills and treatment recommendations are made. He then goes on to receive Cognitive-Behavioural Therapy (CBT) by a treating clinical neuropsychologist, including guidance on recovery following a mild brain injury and symptom misattribution. The aim is for the young man to feel satisfied again with his abilities, to feel able to cope, to gradually return to work, for his mood to improve and for his activities to return to normal levels. This example highlights the importance of considering the whole clinical picture, also relying on validated and standardised tools, for the purpose of establishing diagnosis, causation and prognosis. Disregarding the complexities of psychosocial variables may otherwise lead practitioners to erroneously conclude that someone is intentionally feigning their symptoms when this is not the case.

Why involve a clinical neuropsychologist? A clinical neuropsychologist will assess in detail someone’s cognitive and emotional functioning. In addition, hospital and GP records should be reviewed. Such comprehensive assessment is essential to be able www.yourexpertwitness.co.uk

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Hermann Rorschach

Why I use

the Rorschach in court reports

By DR. SARAH BIRCH, Carstairs Psychological Associates Ltd

‹ THE RORSCHACH IS ONE of the most widely used psychometric

tests worldwide. It is an information-processing, problem solving task in which the respondent is presented with ink blots and asked what they look like. Responses are scored using the Comprehensive System (Exner, 2003) and the scores are combined into indices of psychological functioning, such as coping resources, perception of oneself and others, dealing with feelings, perceptual accuracy and thinking styles.

Criticisms of the Rorschach The main critics of the Rorschach have been Wood and colleagues (Wood, Nezworski, Lillenfield, & Garb, 2003) who questioned the validity and reliability of the test. Much of their criticism was flawed (Gacono & Barton Evans, 2008) but it served as a catalyst in driving forward attempts to improve the psychometric rigor of the test. Research on the Comprehensive System has shown that it has high correlation coefficients for inter-rater reliability (Meyer, Mihura, and Smith, 2005) and good test-retest reliability. Studies on the validity of the Rorschach Comprehensive System have found that it is able to identify affective and coping disturbances in depressed people (Hartmann et al, 2003), psychopathy (Gacono et al, 2001) and perceptual and thought disturbance (Kleiger, 1999). It is also helpful in making predictions about future psychological functioning (Viglione, 1999) and about an individual’s ability to benefit from psychotherapy (Nygren, 2004).

Specific benefits of the Rorschach in assessments for court The Rorschach is particularly good at capturing information about a person as an individual, while at the same time making comparisons against a normative sample. While the test materials are standardised, their intentionally ambiguous nature means that each person’s response to them is unique and rich in descriptive data. As Peden (2010) writes, the Rorschach enriches the understanding of ways of thinking and

feeling that distinguish one person from another. The large reference sample for the Rorschach Comprehensive System means that the results of one individual can be compared to average responses. The original norms were based on data from North America, but normative studies have been conducted in sixteen different countries, involving nearly nine thousand non-patient participants. The results were collated to form the International Reference Sample (Meyer, Erdberg & Shaffer, 2007). Currently, a pilot study by members of the British Rorschach Society to gather normative data for the English adult population is underway. Responses to the Rorschach tell us something about an individual’s attitudes and concerns that the person may not fully recognise in themselves or would be reluctant or unable to convey more directly (Weiner, 2005). It can quantify implicit psychological processes that are not accessible via questionnaires or interviews that measure selfattributions (Bornstein, 2001). This means that Rorschach data is usefully combined with different data sources such as interviews or questionnaire data and there is published guidance on how to integrate Rorschach results and the results of the MMPI-2 which is another very widely used test (Ganellen, 1996). As the Rorschach does not rely on reading or writing, it is useful with people with literacy problems and/or learning disabilities. As Peden (2010) has observed, the Rorschach can be valuable with clients who find the conversational approach of interviews more difficult. A test that is able to assess those aspects of a client’s functioning that they may not have been able or willing to convey, is valuable in an assessment context where individuals have often been ordered to attend, or where there are clear demand characteristics. For psychologists working in the Courts, the outcome of the assessment can be life changing, such as in childcare or criminal proceedings. There is now a body of research on using the Rorschach in parenting evaluations for court, both for child custody and in childcare proceedings (see www.yourexpertwitness.co.uk

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Weiner, 2005, Erard, 2005 and Carstairs, 2011). Further, the forensic interpretation of the Rorschach can help in assessing those aspects of psychological functioning that pertain to violence and hostility, risk-taking, antisocial attitudes and impulsivity among others (Gacono & Meloy, 1994) which makes it a very useful test in criminal cases. It is also able to detect psychotic processes, particularly those that are more subtle and can be missed by other tests or by interviews (Kleiger, 1999). Finally, the Rorschach can provide treatment recommendations and has been used to evaluate both suitability and motivation for psychotherapy and change in treatment (Carstairs & Birch, in press).

• psychotherapy: The use of the Rorschach and the MMPI-2. • Erard, R. E. (2005). What the Rorschach can contribute to child custody and • parenting time evaluations. Journal of Child Custody, 2, 119-142. • Exner, J.E. (2003). The Rorschach: A Comprehensive System, Vol. 1: Basic • Foundations ( 4th ed.). New York: Wiley. • Gacono, C. B. & Barton Evans, F. (Eds.) (2008). The Handbook of Forensic • Rorschach Assessment. Mahwah, New Jersey: Lawrence Erlbaum. • Gacono, C. B. & Meloy, J. R. (1994). The Rorschach assessment of Aggressive • and Psychopathic Personalities. Hillsdale, New Jersey: Lawrence Erlbaum • Associates. • Ganellen, Ronald (1996). Integration of the MMPI-2 and Rorschach in Personality

Overall benefits of the Rorschach to court reports

• Assessment. Mahwah, New Jersey: Lawrence Erlbaum.

When completing a report for Court it is helpful (and expected) that one should be clear, one should address the specific concerns and questions raised in the letter of instruction and that one should if possible be able to make predictions about future behaviour and the probable outcome of treatment. Within the field of psychology, which deals with individual differences against the backdrop of normative data, i.e. how most people behave in certain circumstances, certainty and hard facts are difficult to achieve. The benefit of the Rorschach is in its ability to consider implicit individual differences, which can come across clearly, in relation to normative data. It provides an additional layer of information, that differs from data obtained from questionnaires and interview, and it is a widely researched test with proven reliability and validity. It can therefore strengthen the conclusions one can draw about an individual and be useful in aiding decision-making in Court. q

• Hartmann, E., Wing, C., Berg, M. & Saether, L. (2003). Depression and vulnerability • as assessed by the Rorschach method. Journal of Personality Assessment, 81(3), • 242-255. • Kleiger, J. (1999). Disordered thinking and the Rorschach. The Analytic Press Inc. • Meyer, G., Mihura, J. & Smith, B. (2005) The interclinical reliability of Rorschach • interpretation in four data sets. Journal of Personality Assessment, 84(3), 296-314. • Meyer, Gregory J., Erdberg, Philip & Shaffer, Thomas W. (2007). Toward • International Normative Reference Data for the Comprehensive System. Journal of • Personality Assessment, 89, supplement 1, S201-S216. • Nygren, Marianne (2004). Differences in Comprehensive System Rorschach • variables between groups differing in therapy suitability. Rorschachiana, 26, 110 • 146. • Peden, A. (2010). Why I use the Rorschach test. Clinical Psychology Forum, 211, • 35-37. • Viglione, D.J. (1999). A review of recent research addressing the utility of the

REFERENCES

• Rorschach. Psychological Assessment, 11, 251-265.

• Bornstein, R.F. (2001). Clinical utility of the Rorschach Inkblot Method: reframing the

• Weiner, Irving B. (2005). Rorschach assessment in Child Custody cases. Journal

• debate. Journal of Personality Assessment, 77, 39-47.

• of Child Custody, 2, 99-119.

• Carstairs, K. (2011). Rorschach assessment of parenting capacity: A case study.

• Wood, J., Nezworski, M, Lillenfield, T. & Garb, S. (2003). What’s wrong with

• Rorschachiana, 32, 91-116.

• the Rorschach? Science confronts the controversial inkblot test. Jossey-Bass, San

• Carstairs, K. & Birch, S. (in press). Assessing a parent’s capacity to change in

• Francisco.

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Military stress charity reveals increase in veterans seeking help ‹ ON 12 MAY THE UK veterans’ mental health charity Combat

Stress revealed figures showing a ‘substantial’ increase in Afghanistan veterans seeking mental health support. The statistics highlight a 57% increase in those seeking the charity’s support from 2012 to 2013 with 358 new Afghanistan veteran referrals last year compared to 228 in 2012. Combat Stress currently has a caseload of over 660 Afghanistan veterans. The report coincided with the 95th anniversary of Combat Stress’s formation after World War I. Moreover, with troops having withdrawn from all but two bases in Afghanistan’s Helmand province in March this year, the number of veterans needing treatment is likely to continue to increase, the report says. Combat Stress has found that, on average, veterans wait 13 years after leaving service before seeking help, but that has fallen to an average of 18 months for Afghanistan veterans. Its chief executive, Commodore Andrew Cameron, said: “A small, yet significant number of veterans continue to relive the horrors they experienced on the frontline. Day in, day out, they battle these hidden psychological wounds, often tearing families apart in the process.

“However, with demand for our services already surging, Combat Stress faces a real challenge in continuing to provide our unique life changing clinical treatment and support services to those who need it.” In a letter to The Telegraph on 28 May, academics from the King’s Centre for Military Health Research at King’s College London stated: “There is little doubt that there has been a recent increase in the numbers presenting to both the military mental health services and the service charities. The most likely explanation, backed up by evidence from the charity Combat Stress, is that personnel are now more willing to come forward, and are doing so far sooner than in the past.” They added that, if confirmed, it is a welcome development. q Image courtesy of Defence Images via wikipedia

In praise of ‘unnecessary’ detailed history By DR MARTA ELIAN, Consultant Neurologist and Expert Witness

‹ I AM OFTEN ASKED during a consultation: “What does that

question have to do with the accident?” The answer is that, when someone is relating seemingly unnecessary details regarding their private life, work plans, ambitions, leisure etc, the truth is often unwittingly spelt out. Here are a few examples: • Because of severe post traumatic back pain a middle-aged woman allegedly had to stop working. When she was relating details of her private life, however, it slowly emerged that her circumstances – new husband, new address – had changed five years before the accident. That was the time when she had stopped working. • Both a young man and the proprietor of a tattoo parlour complained to the police about the other’s aggressive behaviour. The dissatisfied young man had returned to the parlour to ask for his money back for the – unsuccessful – tattoo he had commissioned. His inappropriate behaviour, he explained, was the result of torture by needle and electric shock during five years of incarceration in a Syrian prison. As a result, he claimed, he lived on unemployment benefit in a tworoom council flat. Questioned on why he commissioned a tattoo, the rather mysterious answer was: “For symmetry”. When undressing for examination, the ‘tattoo for symmetry’ became understandable. Both right extremities were densely covered with elaborate tattoos. On the left there was only a modest, recent one. So when did he acquire the elaborate right-side tattoos? The answer was: “While in prison for five years – plenty of time.” I found it inconceivable that anybody allegedly receiving ‘repeated electric shocks and needle torture for several years’ would volunteer – in fact demand – to receive many more needle pricks for tattoos. At that

point his carefully constructed story (including the benefits) disintegrated. • After an accident resulting in dislocation of the cervical spine – fixed by a plate – a young Asian woman was denied promotion and the permanent nature of her managerial job. She became anxious and depressed when informed of the danger of repeated dislocations and the possibility that the subsequent disability would remain for the rest of her life. The denial of promotion was based on her alleged ‘emotional liability now and before’, ie an inability to function under stress. The supervisor claimed that only his leniency and benevolence allowed her to keep her present job. However, he had only met her after the accident. Three experts – orthopaedic, rheumatology and neurosurgical – supported the new boss’s opinion, stating that her current psychological symptoms were due to her ‘weak personality’. However, while exploring her private life ‘unnecessarily’, it emerged that, after a singularly traumatic divorce, she was able to care and provide for her child as a single mother without financial or other outside help – no complaints, no self-pity. On further questioning it emerged that, during this difficult period, she found enough energy, willpower and time to obtain a higher university degree while working: such an unusual determination and perseverance indicating – and even proving – a previously robust, not weak, personality. Based on her private history my argument helped her to receive a respectable compensation and the desired job. These few examples – and many more that are available – allow us, and even force us, to conclude that ‘unnecessary’ questions are often necessary and indeed useful. q www.yourexpertwitness.co.uk

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Games some patients play – beware! By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon. FRSPH, Hon. MAPHA-USA • Expert Witness in cultural, religious and ethnic issues in litigation • Expert Witness in GP clinical negligence

‹ THE MAJORITY OF PATIENTS are innocent but we must beware

of those who sometimes play tricks with their doctors for monetary gain. In Britain, medical practitioners are at risk of falling into a trap and may even face disciplinary action. Any patient, politician or media journalist can make a complaint against any doctor, particularly a GP, however there is no provision for a doctor to complain against any member of these strong groups. Akin to drugs, democracy has side effects, and I am afraid one has no choice but to swallow the bitter pill. Let us consider two recent cases in this country where, fortunately, pharmacists do check prescriptions and officially query the doctor if there is any discrepancy. They can amend a prescription and later get the amendment signed by the doctor. One pharmacist rang a GP in London and queried the fact that a patient from their practice had brought in a prescription for 500 codydramol tablets – could she amend the prescription and give him 50 tablets? The doctor replied: “Do not issue any amount as it is a fraud, we never prescribe 500 tablets.” It turned out that only 50 tablets were prescribed and the patient had added a zero to make it 500 tablets. Co-dydramol and co-codamol tablets are sometimes prescribed to control moderate pain. As these are codeine products, morphine derivatives, they have sedative effects and calm a person in stress, with some people getting high on them and feeling happy. They are, therefore, sold privately as drugs of addiction. Just consider the monetary value of 500 tablets of a morphine derivative. The patient never went back to the practice with that prescription – end of story. There is no provision for a doctor or practice manager to complain against such patients, who may belong to a gang. Doctors are professionally bound by the duty of providing a high quality of care and respecting the confidentiality of their patients. They are akin to solicitors who have to support their clients and defend them as far as they can. Social services benefits for unemployment or sick leave are another area of attraction for some patients to make money. These payments are made from taxpayers’ money to assist anyone who becomes ill or unemployed, so as to avoid financial hardship. Poverty can also lead to crime and these benefits are intended to prevent that from happening. One morning, a GP received a call from a Social Services officer in London. She said: “Doctor, good morning. I have never known you to

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give a certificate for 40 weeks. You usually issue them for between one and 13 weeks, however we have a patient of yours here with a sick note for 40 weeks and I have asked him to go back to see you, is that OK?” The doctor told her that he gave a certificate for 4 weeks and that the patient must have put in a zero to make it 40 weeks. From then on the doctor learnt to write the number of weeks in words and never in numbers. The patient went back to the practice and saw a locum GP, instead of his own GP, out of embarrassment – I hope the locum also wrote the number of weeks in words and not in numbers! Such a sick patient cannot be disciplined in any way. Some patients are not sick at all, but will take a sick note for one job and then do another to earn even more money – but that is another story for another time. Nevertheless, poverty or greed are the causes of this behaviour – when hunger comes through the door, honesty goes out of the window! The judges, lawyers and expert witnesses have a vital role to play in understanding and dealing with such cases if they ever come to court. q


New rules on whiplash could give rise to more GP expert reports ‹ IN MAY THE Ministry of Justice announced the latest moves in its campaign

against what it insists is a ‘compensation culture’ in the field of motoring claims – particularly whiplash claims – and ‘others such as trips and slips at work and in public places’. A central plank of the moves is to be the introduction of panels to accredit medical experts able to supply reports in the area of whiplash. According to the MoJ it will result in “...reducing questionable whiplash claims by improving medical assessments, ensuring they are only conducted by independent accredited professionals, and setting fixed fees for medical reports this year.” It is also introducing new rules this year to restrict the practice of settling whiplash claims without confirmation of the claimant’s injury. One of the proposals, that of introducing a standard format for such reports, is likely to provide a more straightforward assessment of whiplash injury without a need for the specialist input required for more serious and complex cases. That, added to the fact that fixed fees are expected to be £180 for a report from a GP or chartered physiotherapist as opposed to £420 for a consultant orthopaedic surgeon, may lead to a marked increase in such reports being sought from GPs. Such cases are already a common source of instruction to GPs as expert witness. Writing on the website www.uk-doctors.org.uk, Dr Asef Zafar says: “The injuries that occur most often in this kind of GP expert witness report are whiplash symptoms, bruises and soft tissue injuries, lacerations (cuts), abrasions (grazes) and a wide spectrum of psychological trauma including shock and situational anxiety.” Moreover, the same kinds of injuries give rise to expert reports on accidents at work. Says Dr Zafar: “Another common form of GP expert witness instruction involves the preparation of reports for clients that have had accidents at work. These GP expert witness reports cover symptoms such as soft tissue injuries, lacerations, abrasions, burns and also extend to include psychological issues such as stress from being pressured to return to work.” q

Family feud leads to GP’s suspension ‹ A GP HAS BEEN suspended from practice for filing a

fabricated whiplash report for a family member, after having been reported to the authorities by that same family member following a family dispute, according to a report in the Law Society Gazette. Dr Anthony Kaufman was found to have been ‘obviously dishonest’ by a panel of the Medical Practitioners Tribunal Service (MPTS). It found he submitted the report in 2012 despite never having examined the alleged victim – his step-daughter’s fiancé. The GMC alleged that Dr Kaufman agreed with his wife, herself a director at a medical agency, to prepare a report that would ensure compensation for a whiplash injury. It also alleged he acted dishonestly because he knew it was inappropriate to accept instructions from his step-daughter’s partner. In a hearing last month, the MPTS panel said it was satisfied Mrs Kaufman had told the alleged victim he could make a claim ‘despite the fact that he had not suffered any significant injuries’. It added: “The panel considers that the preparation of a medicolegal report which was defective in the respects found proved, without carrying out any examination, is obviously dishonest. “It considers that you could not have possibly thought that such a fabricated report was anything other than dishonest.” The panel said his report fell ‘seriously short’ of the standards expected of a registered medical practitioner and that his conduct amounted to ‘serious misconduct’. The panel decided to impose a six-month suspension and review at the end of that period to decide his fitness to continue to practise. q www.yourexpertwitness.co.uk

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Laser surgery gaining in popularity ‹ AN INCREASINGLY POPULAR

procedure for the treatment of vision problems is LASIK, commonly known as laser eye surgery. There are various forms of treatment and conventional LASIK can be used to correct short and long sightedness and astigmatism, which account for around 95% of problems associated with refractive error. A further treatment known as Wavefront LASIK can be used for the remaining 5% of defects. Guidelines from the Royal College of Ophthalmologists say that only registered surgeons with specialist training should carry out laser surgery. According to the college: “A broad knowledge of ophthalmology is essential

to properly assess patients and manage complications. Ideally, surgeons should also belong to a relevant professional organisation that provides continuing professional development.” Laser eye surgery is generally considered non-essential and therefore not usually available on the NHS, although it is available privately at some NHS hospitals. Private clinics engage in advertising campaigns based on the price ‘per eye’ they can offer. As with any procedure there can be complications. Again, according to the Royal College of Ophthalmologists, complications occur in less than 5% of cases. They include ‘flap complications’, problem with dry eyes

in the months after surgery and glare or halo effects when driving at night. In rare cases, the college says, excessive thinning of the eye wall can cause the shape of the eye to be unstable after treatment. Severe loss of vision is very unusual, but some patients could require corneal surgery or hard contact lenses to restore vision. According to the information site, Medical Negligence Claim, a case could potentially be made for a medical negligence claim if the patient had undergone laser eye surgery and there had been a surgical error during the procedure, or the patient’s eyesight had actually deteriorated after the operation and continued to be worse on an on-going basis. q

Experts cite negligence risks ‹ THERE ARE A NUMBER of instances where ophthalmic surgery

can result in a claim for medical negligence. As with all surgery there are risks involved. It is important that these risks are fully explained to the patient so they can give their ‘informed consent’. According to specialists at Switalskis Solicitors, in its Guide to Eye Surgery and Eye-related Claims, claims can arise from: • Failure to diagnose and deal with foreign bodies in the eye • Poor technique during cataract surgery • Delay in the diagnosis and treatment of • retinal detachment • Delay in the diagnosis and treatment • of glaucoma • Delay in recognising that • an injury has occurred • during surgery • Failure to organise further • treatment or surgery to • minimise the loss of vision. On cataract surgery the guide has this to say: “Complications during cataract surgery can occur because of faulty technique or intrinsic pathological

features within the eye. Anaesthesia administration carries its own risks. Injected local anaesthesia has significant potential complications.” The document goes on to cite errors, which can ‘result in permanent loss of vision from retinal detachment’. They are:• Delay in referral • Failure to diagnose • Failure to treat correctly. Acute glaucoma, says Switalskis, can cause ‘complete and permanent blindness within two to five days’ if left untreated. They go on to say: “Declining vision can be mistakenly attributed to cataract so that glaucoma is not suspected. This error can be because the visual fields of the eye are not assessed and/or the pressure in the eye is not measured. This can result in a failure to treat or a delay in treating the condition.” q

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Avoiding complications in blepharoplasty By MR BRIAN LEATHERBARROW, Consultant Ophthalmic, Oculoplastic & Orbital Surgeon

‹ MANY PEOPLE TYPICALLY seek an opinion about this

increasingly popular type of cosmetic eyelid surgery for a number of reasons. They may have concerns about lower eyelid dark circles which can cause a tired appearance and attract unwanted comments from others, undermining their self confidence. The same can be said about hooding of the eyes and the development of eye ‘bags’, both of which conditions can cause an aged appearance. A blepharoplasty is an operation that removes loose folds of skin from the upper eyelids and eye ‘bags’ from the lower eyelids. An upper eyelid blepharoplasty is performed for people who have droopy, overhanging eyelid skin that impairs vision, looks unsightly or prevents the application of make up. It can be combined with blepharoptosis surgery if there is an associated droop of the upper eyelid itself. Often an eyebrow ptosis (drooping of the eyebrows) contributes to the problem and may also need to be addressed. It is important that other potential medical problems are excluded as an underlying cause of the complaint – an underactive thyroid gland can, for example, cause ‘puffy’ eyelids. The Department of Health provides the following recommendations for such surgery, stating “This procedure should be carried out by a surgeon with relevant skills and experience in an establishment registered with the Care Quality Commission. An ophthalmologist (an eye surgeon) should also assess a patient’s suitability for surgery.”

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An ophthalmologist who is also an oculoplastic surgeon has the required skills not only to examine a patient’s eyes using specialist equipment but also to undertake this highly specialised surgery. Unfortunately, complications of surgery undertaken by those who are not experts in eyelid surgery are not uncommon and oculoplastic surgeons are frequently called upon to manage: • complications of surgery undertaken by surgeons in other specialties who cannot examine a patient’s eyes and who cannot appropriately diagnose pre-existing eye problems, such as a dry eye problem • the ophthalmic sequelae of surgery undertaken in a substandard fashion. For example, exposure of the eyes due to incomplete eyelid closure with constant discomfort and blurred vision, watering and overflow tearing of the eyes and double vision • unsatisfactory aesthetic outcomes with revisional eyelid surgery. An experienced oculoplastic surgeon is the ideal choice to provide a medicolegal opinion about liability and causation issues following the occurrence of complications of blepharoplasty surgery, and about a patient’s condition and prognosis. q • For further information visit Mr Leatherbarrow’s website at www.eyelidsurgery.co.uk.


Surgeons offer reassurance on cancer link to implants and reiterate call for registry ‹ DESPITE REPORTS OF a theoretical

link between an extremely rare form of cancer – anaplastic large cell lymphoma (ALCL) – and textured breast implants, the British Association of Aesthetic Plastic Surgeons (BAAPS) has cautioned that ‘150 cases out of more than 15 million should not cause alarm in patients’. The BAAPS says its members have performed close to 80,000 breast augmentations in the past decade, with not one case of ALCL ever recorded in that period. According to its president and consultant plastic surgeon Rajiv Grover: “Breast augmentations have in recent years acquired a reputation for being an ‘off the shelf’ procedure, but meticulous technique from an experienced surgeon is essential to avoid complications. All BAAPS members are aware of the importance of antibiotic use and minimal handling when dealing with implants, known to be significant factors in reducing the risk of biofilms, which can result in capsular contracture. “Published infection rates in breast augmentation are 2.5% across Europe but the BAAPS’ own statistics show only a rate of 0.5% and less than half the re-operation rates of the US – at 2.6% compared to 5.1%.” Former BAAPS president Fazel Fatah echoed the sentiment. He said: “It is important to remember that the number of breast implant patients globally is considered to be higher than 15 million, yet these tumours are extremely rare. ALCL is normally slow to progress and not aggressive, with a good likelihood of recovery. “BAAPS members have been made aware of this extremely rare association for a while and are vigilant to make sure the right steps are taken if the condition is suspected in a patient with breast implants. Women can be reassured of the very nature of the rare

association and there is no need for concern unless they develop sudden unexplained changes or swelling – although this could be for a number of reasons not related to ALCL at all.” Graeme Perks, president of the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), said: “The most recent clinical studies state that it is not possible to confirm with any certainty whether breast implants have any relation to an increased likelihood of developing anaplastic large cell lymphoma, and particularly whether any one type of implant can create a higher or lower risk than another of developing the disease. “A recent popular media piece on the subject suggested a potentially more widespread causal link with certain textured shell implants, however the article quoted

un-referenced work which may not have been peer-reviewed. This is sadly an example that information without perspective has the potential to lead to unnecessary anxiety among patients. “This speculation, ironically on the day that the International Collaboration on Breast Registry Activities (ICOBRA) – to which BAPRAS and the UK Department of Health are memorandum of understanding signatories – was meeting in Singapore, is further evidence of the need for a breast implant registry. “Until any further evidence is presented, BAPRAS maintains there is no need to remove these implants as a matter of course. We continue to advise that any women with breast implants who experience any sudden unexplained changes or swelling should speak to their GP or their surgeon.” q

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Assessment of pain helps to assess the compensation ‹ ONE OF THE ELEMENTS taken into account in any

assessment for personal injury or workplace injury compensation is the amount of pain caused and the duration of that pain. Pain caused by an injury can be acute (extreme and short-lived) or chronic (long-lasting and debilitating). The extent of such pain and the effect it has on the victim’s life are assessed by experts in pain management. The report of a pain management expert witness will detail the circumstances of the incident, the type and location of the pain and its extent. It will detail the affect the pain is having on carrying out everyday activities and on the claimant’s sleep pattern. In many cases the report of the pain management expert will be accompanied by psychiatric reports and/or x-ray or scan reports. Very often the expert will ask the patient to assess their pain with a VAS score. The VAS score uses an imaginary line 10cm long, graduated from zero to 10. Zero represents no pain, while at the other extreme 10 represents ‘the most horrible pain imaginable’. Pain management, as the term implies, also involves the treatment of the pan. The treatment of chronic pain can include analgesic medications, anti-depressants, steroid injections and even surgery. q

When management fails ‹ ALTHOUGH PAIN IS USUALLY a consequence of a medical

condition rather than the condition itself, management of pain is very much a specialist activity, often carried out by highly-qualified nurses – as evidenced by the specialist nurse practitioners working for organisations such as Macmillan Cancer Support. In the case of other conditions, however, it is the community nursing teams who deal with pain management on a day-to-day basis for those with chronic or post-operative symptoms. However, despite the panoply of pain relief options, patients do not always receive sufficient or appropriate pain relief. According to medical claims specialist Mistreatment.com there are various ways in which errors can lead to a claim. They include: • Errors with a TENS machine • Failure to provide sufficient and the appropriate type of pain relief • Referral delays to pain clinic for pain management • Mismanagement of chronic pain conditions such as fibromyalgia • and ME • Lack of physical therapy or interventional procedures • Dosage errors with prescribed medication. q

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Misdiagnosed orthopaedic injury leads to major pay-out ‹ ON 30 MAY solicitors Thomson Snell

& Passmore reported that their specialist clinical negligence lawyer Fiona Mills had secured over £84,000 for a claimant who suffered a massive slip of her femoral hip epiphysis. The claimant in this matter was a 12 year old girl from Hertfordshire, who had attended her GP on three occasions over three months with symptoms of aching in her groin, hip and thigh pain, which was worse on weight bearing, and pain on rotation. The GP failed to appreciate the seriousness of her condition and only referred her for physiotherapy. A further month after her last attendance at the GP’s surgery, the claimant felt a crack in her right hip. She went to A&E at the Lister Hospital. An x-ray was taken which showed that she had suffered a massive slip of her femoral epiphysis in her hip. According to the American Academy of Orthopaedic Surgeons: “Slipped capital femoral epiphysis is an unusual disorder of the adolescent hip. It is not rare. For

reasons that are not well understood, the ball at the upper end of the femur (thigh bone) slips off in a backward direction. This is due to weakness of the growth plate. Most often, it develops during periods of accelerated growth, shortly after the onset of puberty.” The patient in question was referred to the Royal National Orthopaedic Hospital in London and was placed in slings and springs prior to undergoing traction treatment for between two and three weeks. She also required a cuneiform osteotomy and securing of the epiphysis with a pin. Unfortunately, following treatment the claimant developed a complication known as chondrolysis. This is a progressive destruction of the articular cartilage resulting in secondary joint space narrowing and stiffness. As a result the claimant’s hip was abnormal with a decrease of the joint space, as well as 1.5cm leg shortening in the affected leg causing considerable loss of mobility.

Fiona Mills of Thomson Snell & Passmore Reports were obtained from GP, orthopaedic, care and psychiatric experts. Fiona Mills takes up the story: “Unfortunately, shortly before we were in a position to consider trying to settle this claim, the claimant suffered further complications following a fall down an escalator. “After obtaining further reports regarding the claimant’s new condition and prognosis we were able to obtain a settlement of over £84,000 to compensate the claimant for her pain and suffering and to pay for any further treatment that she may need.” q

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Expert Profile Professor Sanjiv Jari Consultant Trauma & Orthopaedic Surgeon Bsc (Hons), MBChB, FRCS (Eng), FRCS (Tr & Orth) Orthopaedic & Trauma Services Ltd www.oatsltd.com info@oatsltd.com

‹ PROFESSOR JARI IS A Consultant Trauma & Orthopaedic Surgeon

at Hope Hospital, Salford and also an Honorary Clinical Lecturer in Orthopaedic & Trauma Surgery at the University of Manchester. He has been preparing medical reports since 1996 and undertakes between 600800 reports per year. He receives instructions for reports on RTA injuries ranging from low velocity impact cases to multiple injury, high value, multi track cases. He also prepares reports on trips, falls, slips and workplace injuries and has an increasing number of instructions on clinical negligence cases. Professor Jari is also prepared to undertake home visits and prison visits. Costs are based on his hourly rate as per agreed terms and conditions. He is a member of the UK Register of Expert Witnesses, The Association of Personal Injury Lawyers (where he is a 1st tier APIL member) and the Manchester & District Medico-Legal Society. He has also successfully completed Cert MR parts 1 and 2 together with the Bond Solon Certificate Civil Procedure Rules for Expert Witnesses. Current waiting time is around 1-3 weeks for an appointment with a report turn around time of 3-5 working days. Orthopaedic & Trauma Services is also able to offer a complete service for solicitors including arranging medical imaging or treatments. q • Please contact Allison Ellis on 0161 445 9885 for further information.

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Whiplash and Co. a different slant By MR R SCOTT-WATSON of RSW Medico-Legal Limited

‹ WHIPLASH ASSOCIATED DISORDER

is itself associated with a number of other conditions – some of which can manifest in the early stages and some may not appear until later. It is a common complaint that at or near the time of the accident, the claimant suffered some form of neurological symptom in one or both arms, usually described as ‘pins and needles’ or suchlike. For those experts who tend to see claimants at less than three months postaccident, this may be the only clue that they get to the underlying pathology. If they look no further they risk failing to correctly diagnose and treat the underlying condition, which will continue indefinitely if left untreated. Claimants will often not report this symptom unless directly asked. To do it properly takes time. For those who tend to see claimants at a later stage, that initial period of neurological symptoms may be recorded in the notes or may be volunteered, but again it may not be. What will often not be volunteered will be that about three months later similar symptoms returned. They may only complain of the arm tiring easily. The claimant will often see symptoms appearing some months after the event, and usually involving the forearm or hand (which they did not think was injured), as being unrelated to the injury. What I now put to you is that there is a clear link between the injury and the development of these symptoms as well as a simple remedy which will relieve the symptoms in the vast majority of cases. The reason that the early assessments are so important is that the earlier the treatment starts, usually, the less time treatment is required. The reason this condition is not generally recognised in orthopaedic practice, or even neurosurgical practice, is that the more severe forms of the condition are treated by thoracic surgeons and rarely appear in the other specialities. The author has come across three reports in 24 years correctly diagnosing the condition – one from a neurosurgeon, one from a chiropractor and one from a physiotherapist. The condition is Thoracic Outlet Syndrome (TOS) caused by muscle imbalance around the shoulder girdle as the upper trapezius and levator scapulae are injured in the accident. The initial strain on the brachial plexus causes the initial symptoms, where present – a mild neuropraxia. What then appears to happen

is that, due to the injury, the shoulder girdle gradually drops. At a point about three months post accident this becomes sufficiently severe that the neurological symptoms return. What do they complain of? At first glance the claimants almost always complain of what appears to be symptoms in a nonneurological pattern. What I propose is that this is not the case – it is the brachial plexus that is being compromised, not individual roots or nerves. As a result a wide variety of patterns of symptoms can readily emerge depending on exactly which nerves are worst affected. Vascular symptoms can occur but in my experience are very rare and the only significant case I have seen did have a cervical rib that was only remediable with surgery. In addition, if questioned, claimants will complain that bra straps and handbags fall from the affected side (but not the other) and that drying their hair is either difficult or impossible. They may have changed hair style because of this. These problems usually affect the ladies. They may also complain of difficulty driving, reaching high cupboards, carrying even quite light objects and nocturnal discomfort. Many of these complaints will not be volunteered and have to be actively sought or they will be missed. Other complications can be Carpal Tunnel Syndrome (from a double crush phenomenon) and occasionally ulnar nerve effects also. Examination: Observe that the affected shoulder is almost always held significantly lower than the unaffected, often by up to two centimetres – but only when relaxed. The specific tests are the Roos or Adson tests which will induce the usual symptoms. The Roos test is a very similar manoeuvre to holding a hair dryer which is why symptoms occur then. General examination to rule out other related and non-related conditions is clearly also essential.

Investigations: The temptation is to perform an MRI of the cervical spine (certainly prudent if symptoms and/or signs merit) or nerve conduction studies. In TOS these are often normal and this by no means excludes the diagnosis – if anything it reinforces it by excluding other pathology. Positive tests indicate other pathology or a severe form of TOS such as with cervical rib. Treatment: Specific exercises which claimants usually manage to do without the need for physiotherapy, but which they have to adhere to and undertake frequently. The shoulder exercises are best if undertaken about six times per hour of waking, rather than in extended sessions (causes reaction) or less frequently. Complete relief would be expected in the vast majority within three months of treatment starting, but in more long-standing cases it can take significantly longer. That is why those seeing claimants early should be looking for this condition at the outset. The condition is not confined to Whiplash Associated Disorder, and should also be looked for in any upper limb disorder as it is not infrequent in cases where there has been a shoulder injury or even just a period in a sling, with or without plaster. Not convinced? A quick web search should help. The Mayo Clinic lists the causes of Thoracic Outlet Syndrome on their website thus ‘Common causes of thoracic outlet syndrome include physical trauma from a car accident, repetitive injuries from job- or sportsrelated activities…’ It is the first on the list, and that makes sense as it is no doubt the most common. So while experts are required to show that their expertise is indeed that and that they stick firmly within their field, instructors need to be vigilant that the expert can report on the condition that the claimant requires to be defined and is able to assist in minimising the consequent loss by indicating how best this can be achieved. q www.yourexpertwitness.co.uk

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Deep Vein Thrombosis – still a problem in 2014

By Philip Coleridge Smith DM MA BCh FRCS Consultant Vascular Surgeon and Medical Director, British Vein Institute and Reader in Surgery, UCL Medical School

‹ EACH YEAR 25,000 PEOPLE in England die from venous

thromboembolism (VTE). This figure includes patients admitted to hospital for medical care of serious illnesses as well as those admitted for surgery, according to the House of Commons Health Committee.1 This is a larger number of deaths than are attributable to breast cancer, AIDS and road traffic accidents. There is a risk of spontaneous thrombosis arising in the deep veins of the leg and pelvis (and sometimes other anatomical locations) of between 1 to 2 per thousand people per year. However, a number of diseases and treatments greatly increase this risk. In particular, surgical treatment in hospital gives rise to an increase in this risk of about 25 to 230 fold, depending upon the operation and the indication for treatment. In fact, admission to hospital for any reason leads to a doubling of the risk of deep vein thrombosis over the following 6 months.2

There is an association between long haul air travel and deep vein thrombosis but the overall absolute incidence of a symptomatic DVT in the month following a flight of greater than four hours is 1 in 4,600 flights. Long haul air travel is a modest risk factor compared to treatment in hospital. The National Institute for Health and Clinical Excellence (NICE) has published guidelines for identifying patients at risk of deep vein thrombosis during hospital treatment and recommended methods for reducing the risk of DVT.3

Which hospital patients are at risk of DVT? NICE advises that the following patient features may increase the risk of a DVT arising during or following hospital treatment: • Active cancer or cancer treatment • Age over 60 years • Critical care admission • Dehydration • Known thrombophilias • Obesity (body mass index [BMI] over 30 kg/m2) • One or more significant medical comorbidities such as: heart disease; • metabolic, endocrine or respiratory pathologies; acute infectious • diseases; inflammatory conditions • Personal history or first-degree relative with a history of VTE • Use of hormone replacement therapy • Use of oestrogen-containing contraceptive therapy • Varicose veins with phlebitis A risk assessment should be performed in all patients admitted to hospital for any reason in order that the presence of any of these features can be identified. Failure to undertake such a risk assessment might be considered substandard care. If any of the factors in this list are present specific measures should be taken to prevent deep vein thrombosis.

What can be done to prevent DVT?

Image: James Heilman, MD© via Wikipedia

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Treatments which can reduce the risk of DVT include mechanical methods, such as pneumatic compression sleeves and graduated elastic compression stockings as well as anticoagulant drugs. Mechanical methods have been shown to be effective following surgical procedures but are not appropriate in patients with arterial disease in the leg or loss of sensation due to diseases of the peripheral nerves. Ulceration of the leg or gangrene may arise from excessive compression of the legs with stockings in these patients. Several anticoagulant drugs have been studied in considerable detail in many studies conducted in medical and surgical patients. The most commonly used drugs for the prevention of DVT are low molecular weight heparins (LMWH) which reduce the risk of DVT by about 80% in surgical patients. These drugs must be given by daily subcutaneous injection which is not always very popular with patients. A series of new drugs has been developed which can be taken orally on a daily basis and are licensed in the UK (as well as many other countries) for the prevention of deep vein thrombosis. These are especially useful once patients have been discharged home but have a continuing risk of deep vein thrombosis. Two drugs licensed in the UK for this application are dabigatran (Pradaxa®) and rivaroxaban (Xarelto®). Anticoagulant treatment gives rise to the risk of bleeding and should not be used in patients with a bleeding risk such as those with active


bleeding or a bleeding disorder. Patients with active peptic ulceration or taking aspirin or a non-steroidal anti-inflammatory drug may also be at risk. Anticoagulant drugs should not be used in these patients since serious bleeding may arise leading to the risk of death.

Selection of the correct method of DVT prevention The exact method of prevention of deep vein thrombosis depends upon the condition that the patient is being treated for as well as which risk factors apply from the list above. In general, medical patients should receive anti-coagulant drugs at a low concentration which provides protection against the start of a DVT. The most common regimes include the injection of low molecular weight heparins. The use of medical compression stockings has been shown to be ineffective in patients receiving treatment for stroke, so the use of low molecular weight heparin is appropriate in this group, following assessment of the risk of bleeding related to stroke. The duration of the risk of stroke depends on the time taken for the patient to recover which will vary considerably. In these patients the main risk arises from immobility secondary to the stroke. NICE advise that, once the patient is stable, the treatment regime can be reviewed without specifying a particular duration of treatment. Amongst patients undergoing surgical intervention, those receiving hip and knee replacements are at high risk of post-operative deep vein thrombosis. This group require systematic management to ensure thrombotic complications are avoided. The use of combined mechanical and pharmacological means of prophylaxis is recommended which provide greater protection in combination than either used alone. The drugs which may be used include the injectable low molecular weight heparins as well as the oral antithrombotic drugs rivaroxaban and dabigatran. The recommended duration of treatment is 28-35 days although the duration of hospital admission is likely to be in the range 3-7 days. Arrangements must be made for the treatment to continue at home where oral anticoagulants are more acceptable. Patients in other surgical groups are generally considered to require a mechanical method of prevention, such as anti-embolism stockings combined with a pharmacological method. The duration of treatment is suggested to be in the range 5-7 days.

Duration of prophylactic treatment Much of general surgery is done as a day case procedure where the patient leaves the day surgery department long before full recovery from the treatment has been achieved. During the recovery period, reduced post-operative mobility leads to a continuing risk of deep vein thrombosis. Prophylaxis should be provided for this period. The anti-coagulant drugs used to prevent deep vein thrombosis have been studied for efficacy in clinical trials where a 5-7 day period of treatment has been given after general surgery. This is increased in high risk knee and hip surgery to 28-35 days. There has been a practice in the past in which a single injection of low molecular weight heparin was given to protect against DVT following day case surgery. However, the drug manufacturers have no data with which to assess the efficacy of such a regime and recommend a 5-7 day period in their instructions for use of the drugs. Relying on a regime which differs from that in the drug’s ‘summary of product characteristics’ lies outside the licensing of that drug and the prescribing doctor assumes responsibility for the inadequacies of the regime. Where a patient is considered to need prophylaxis with anticoagulant drugs following their surgery, arrangements must be made for completion of the regime once they return home. The author is aware of one paper which includes observations in a group of varicose vein patients, some of whom received a single injection of heparin following their surgery. Others received no prophylaxis. About 5 % of patients were found to have DVT on ultrasound imaging. There was no difference in the frequency of DVT amongst those who received a single dose of heparin and those who received none. This was an observational study but adds no support to the assumption that a single dose of heparin will protect against deep vein thrombosis. In conclusion, the normal duration of prophylaxis specified by a the

drug companies is in the range of 5-7 days, but it is longer for hip and knee replacement operations where it is in the range of 28-35 days. Should a patient who would be considered at risk of venous thrombosis develop a DVT when the duration of prophylactic treatment used was less than that specified in NICE CG92 this could be considered substandard medical management.

Conditions where prophylaxis is not required In general, major fractures to the long bones of the lower limb are managed by surgical reduction and fixation with various types of metal plates and pins. Prophylactic treatment following surgery would be indicated and should be continued until the patient regains normal mobility. However, fractures around the ankle and of the foot not involving the major long bones may not need surgical treatment. The limb is encased in a plaster cast and the patient encouraged to mobilise using crutches. Such patients remain at increased risk of DVT due to their injury and relative immobility. These patients should receive written information warning of the possibility that a DVT may occur and be advised to seek medical advice should symptoms suggesting this problem arise. Current consensus documents confirm that no pharmacological regime has been established in this group of patents which can be recommended for general use. It is acceptable for patients in this group to await the development of any symptom suggesting of deep vein thrombosis. Should this arise the diagnosis can be established on ultrasound imaging of the lower limb veins and treatment for a DVT commenced.

When a DVT does develop It is important to remember that all of the measures currently in use reduce the risk of a DVT arising but cannot eliminate this completely. Patients receiving anticoagulants at a prophylactic dose can still develop a DVT. Patients should be encouraged to report any symptom such as a calf pain or limb swelling so that further investigations can be done to detect a possible DVT. Timely treatment for a DVT will lead to a much better outcome than if this treatment is deferred when symptoms of limb swelling are dismissed as attributable to the result of the fracture or treatment for the fracture. A post-thrombotic syndrome with long term pain and swelling of the leg may arise with the risk of leg ulceration when treatment for a DVT is delayed by some weeks.

Clinical cases Despite the well known symptoms of DVT and risks of pulmonary embolism arising from this, the author has provided opinions concerning a number of cases of fatal pulmonary embolism. In one case, a 37 year old female patient fell during a sporting event and injured her ankle. She was taking the oral contraceptive pill, a risk factor for the development of a DVT. A fracture of the distal fibula at the ankle was the problem shown on xray at the hospital. The patient underwent surgical treatment of a duration of 1h 15 mins to reduce and fix the fracture with a metal plate. No risk assessment was done for DVT and the patient received no mechanical or prophylactic drug treatment to protect her from deep vein thrombosis. She attended the fracture clinic 10 days after her operation, having been discharged home the day following surgery. She had pain and swelling in the left calf which were reported to the surgeon in the fracture clinic. The patient was found to have a satisfactory radiological outcome from her surgery and her symptoms of pain and swelling in the calf were attributed to the fracture and its treatment. Symptoms in the patient’s calf became worse with severe pain and tightness of the calf. This was strongly suggestive of a deep vein thrombosis. This was again reported to the orthopaedic surgeon after another month had elapsed. Although the patient was able to show the orthopaedic surgeon that the leg was swollen and very painful, he reassured her that this was normal. The patient became a little more mobile following removal of the plaster but collapsed and died from a massive pulmonary embolism 10 days after her last attendance at hospital. This case was settled for a large sum. www.yourexpertwitness.co.uk

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The DVT should have been prevented by the admitting hospital undertaking a risk assessment and providing appropriate prophylaxis after the surgery. She subsequently visited the fracture clinic twice where symptoms strongly suggestive of deep vein thrombosis were present but were dismissed as attributable to the fracture and its treatment. Proper investigation by duplex ultrasound imaging should have been done and this would have shown the extensive DVT in the patient’s leg. Full dose anticoagulant treatment would then have been given leading to resolution of the DVT and avoidance of fatal pulmonary embolism. NICE have now published more information on the correct management of deep vein thrombosis.4 Treatment for venous thrombosis should now comply with this guideline to be considered good medical practice. In conclusion, hospital patients remain at risk of deep vein thrombosis unless appropriate measures are taken to prevent this. A clear regime of prevention is set out in NICE CG92 which all hospitals should comply with. Failure to comply with this regime might lead patients to be unnecessarily exposed to the risk of DVT leading to fatal pulmonary embolism. Should a DVT arise when the NICE guidelines have not been complied with, substandard treatment may be considered to have been provided. q REFERENCES 1

House of Commons Health Committee. (2005) The prevention of venous

thromboembolism in hospitalised patients. London, 2005: The Stationery Office Limited. 2

Hippisley-Cox J, Coupland C. Development and validation of risk prediction

algorithm (QThrombosis) to estimate future risk of venous thromboembolism: prospective cohort study. BMJ. 2011 Aug 16;343:d4656 3

NICE Clinical Guideline 92: Reducing the risk of venous thromboembolism (deep

vein thrombosis and pulmonary embolism) in patients admitted to hospital. NICE, January 2010. 4

NICE Clinical Guideline 144: Venous thromboembolic diseases: the management

of venous thromboembolic diseases and the role of thrombophilia testing. NICE, June 2012.

Company Profile

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all too often herald the beginning of what could be a potentially lengthy medico-legal process. Awaiting the instruction of an appropriately qualified medical expert to examine the client and provide a written report of their findings, is a significant part of this process. Often within these reports, experts recommend additional diagnostic procedures, imaging or therapeutic interventions which solicitors are required to arrange. That’s where we come in, Diagnostic & Rehab Services Ltd can organise a wide range of medical procedures, imaging and therapeutic treatments nationwide. In most cases we are able to source and issue a no obligation quote within one business day. With an extensive network of specialists across the country, we will work with your clients to provide appointments and venues that suit personal circumstances where possible. Our belief in offering a bespoke service to all of our instructing solicitors is the foundation of our business, and the key to its efficiency. It is worth remembering that mismanaged claims cause unnecessary delays in reaching settlement, ultimately leaving clients and their legal representative out of pocket. Diagnostic and Rehab Services Ltd, will arrange all of your medical imaging, medical investigations and therapeutic interventions on a nationwide basis. As part of our commitment to the service, we endeavour to ensure that you receive the results or written reports in a timely manner. q

Diagnostic and Rehab. Services Ltd… ...Bespoke Medical Solutions for Legal Practitioners. 52 52

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Better than coffee? ‹ AN EXTREMELY BUSY WEEK lies ahead – a case load of

work awaits you, your diary is already full, you enter the office already tired, grab a coffee and the day begins. Most of us accept that this is the normal working pattern. However, after watching a film starring Bradley Cooper and Robert de Niro, you do begin to wonder... Limitless is about an unpublished writer who takes an ‘experimental drug’ transforming him into a super smart genius using 100% of his brain. The designer pill turns the writer from being an unmotivated, disorganised person to a major success, with more energy than our electricity suppliers – a story that can only be found in the movies!! Well actually no, as recent BBC headlines and coverage have exposed. Modafinil, a prescription only drug normally used to treat narcolepsy, is now one of a number of performance enhancing drugs known as ‘smart drugs’. A popular and growing trend amongst students in coping with exam fatigue, it gives a sensation of natural wakefulness for hours at a time, without the jittery buzz and disrupted sleep normally associated with caffeine. It is also reported to sharpen the mind, boost the memory and aid problemsolving. There has been a lot of concern regarding this, as Professor Barbara Sahakian, a leading neuroscientist at the University of Cambridge explained: “Our recent study, published in Neuropharmacology, suggests that healthy people use smart drugs like Modafinil to get down to and complete tasks, because these tasks seem more enjoyable when taking these drugs.” The heightened news of these smart drugs has lead to the Advisory Council on the Misuse of Drugs to carry out a review of their use. The ethics of taking smart drugs has also been debated amongst students and universities, as it ‘may’ be considered that the use of them whilst taking exams could be classed as cheating. Andrea Petroczi, a professor of public health at Kingston University says: “It’s not a magic pill. It doesn’t work without putting the work in, it helps you to put more work in.” There is little evidence that suggests taking them actually makes people more clever. It is not illegal to buy the prescription only drug Modafinil, but it is an offence to supply or to sell on. Ritalin, another smart drug normally associated with the condition ADHD, works by acting as a stimulant. It is a controlled substance under the Misuse of Drugs Act and possession of it without a prescription is illegal. It is categorised as a Class B Drug and possession can lead to a five year prison sentence. A recent BBC report found that of those people who had tried smart drugs before, 92% would do so again. Smart drugs like Modafinil may promise to alter your tired working week, but it can potentially change you and who you are. Professor John Harris director of the Institute for Science, Ethics and Innovation at the University of Manchester says they give people an edge: “They have a similar effect to hard work and coffee. Physical exercise also has the same effect. They are all, to an extent, cognitive enhancers”. I don’t know about you but I think it’s time for my walk! Could this be the future of drug abuse......? q

Dr Thomas Haizel, Managing Director of Anglia DNA

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Your Expert Witness 1YWF mag p1 60 Issue 29