The gaps in medical evidence that most often hold up a personal injury claim are incomplete records, especially pre-injury GP records, a prognosis that cannot be given until the injury settles, missing photographs of a wound or scar, and instructions that do not say what the expert is being asked. Most can be closed before the expert is instructed.
In short: the court rules tie the progress of a claim to the medical report, and the schedule of future losses depends on the prognosis. When a report has to be qualified, postponed or followed by a second one, both parties wait. A full set of records, dated photographs and a clear letter of instruction prevent the commonest delays, whichever side instructs the expert.
Why Does Medical Evidence Set the Pace of a Claim?
Because the claim cannot be fully pleaded or valued without it. Practice Direction 16, which governs statements of case, says that where a claimant relies on evidence from a medical practitioner, a report from that practitioner about the injuries must be attached to the particulars of claim (paragraph 4.3). The same practice direction requires a schedule of past and future expenses and losses (paragraph 4.2).
Future losses turn on the prognosis. Whether a scar will fade, whether a hand will regain its grip and whether further surgery is likely all change the schedule, and all of them come from the expert. A defendant or insurer needs the same answers to value the claim and respond to it, so a report that cannot be finished holds up both sides.
Which Medical Records Does the Expert Need?
The full set, not only the records of the first admission. The personal injury pre-action protocol says that where a medical expert is to be instructed, the claimant’s solicitor will organise access to the relevant medical records (paragraph 7.5). Its specimen letter of instruction at Annex D lists hospital records, GP records and a statement of events as enclosures, and gives the option of the expert requesting the records directly.
The usual gap is a set of records that stops short. Emergency department notes arrive without the operation note, or the operation note arrives without the outpatient letters and therapy notes that show how healing went. For a hand injury, the hand therapy notes record movement and grip over time. For a burn, the dressing clinic and scar management notes record how the wound healed.
Why Do Pre-Injury GP Records Matter?
Because the expert has to separate what the incident caused from what was there before. The protocol’s specimen letter asks the expert to deal with any relevant pre-accident medical history as well as the injuries, the treatment and the present condition. Hospital records usually begin on the day of the injury, so they cannot answer that question on their own.
An earlier scar at the same site, a previous wrist fracture or a history of keloid scarring all bear on causation and prognosis, and the GP record is usually the only place they appear. Without it, the expert either qualifies the opinion or asks for the records later, and a qualified opinion invites questions from the other party.
What those records show can help either side. The point is that the expert has seen them, so the opinion does not rest on an assumption. How courts weigh records is covered in medical records as evidence in a negligence claim.
What Happens When the Injury Has Not Yet Settled?
The expert can describe the present condition but may not be able to give a final prognosis. Scars are the clearest example. NHS guidance on scars says most fade over time, that this can take up to two years or more, and that keloid scars do not usually flatten or fade without treatment. A scar examined at four months can look quite different at eighteen.
The Civil Justice Council’s 2014 guidance for the instruction of experts says an expert should state when an opinion is provisional or qualified, or when further information is needed before a final view can be given (paragraph 13). For an injury that is still changing, that often means a report now and a re-examination later, with the expert saying when the second examination should take place.
Is an Interim Report Worth Commissioning?
Often, when the injury will take months to settle. An interim report records the injury close to the event, sets out the treatment so far and identifies what is still uncertain. Both parties then know what the final report will need to answer.
Practice Direction 16 requires a report about the claimant’s injuries; it does not say that report must be final. Whether to issue proceedings on an interim report is a decision for the solicitor, and it depends on limitation and on the stage the claim has reached.
How Do Missing Photographs Affect a Scarring Report?
They leave the expert unable to show how the scar has changed. At examination the expert assesses and photographs the scar as it is that day. Photographs from the time of injury, after surgery and during healing are the only record of the earlier stages.
Dated photographs help most: the wound before it closed, the scar in the early months, and the scar at intervals afterwards, ideally in similar light. Scar assessment tools such as the Vancouver Scar Scale score pigmentation, vascularity, pliability and height, which change as a scar matures. Earlier photographs let the expert comment on that course rather than on a single point in it.
What Should a Letter of Instruction Contain?
Enough for the expert to know exactly which question is being asked. Paragraph 20 of the CJC guidance says instructions should be clear and in writing, and should cover:
- basic information, such as names, contact details, the date of the incident and any claim reference
- the type of expertise required
- the purpose of the report, the matters to investigate and the identity of all the parties
- the relevant statements of case, witness statements and expert reports, saying which have been served and which are drafts
- whether proceedings have started or are contemplated
- an outline timetable for the work and, once proceedings are under way, the hearing dates, the court, the claim number and the track
The commonest gap is the issue itself. A condition and prognosis report is a different exercise from a clinical negligence report on breach of duty and causation. An instruction that does not say which is wanted, or which injuries to cover, leads to a report that answers the wrong question or to a round of letters before work starts. The different report types are set out on the medico-legal report page.
What Can an Expert Do When Information Is Missing?
Ask for it, and say so in the report. The CJC guidance expects an expert who receives unclear or insufficient instructions to say so promptly and to ask for clarification (paragraph 23). Where information the expert needs has not been provided, the expert may ask the court for directions, normally after raising it with those instructing them first (paragraph 28).
Where one party holds information the other cannot readily get, CPR 35.9 allows the court to direct that party to record it in a document and serve it. Each of these steps takes time, and sending the records and photographs at the start avoids most of them.
When Does a Question Need a Different Specialist?
When it falls outside the expert’s own field. Under CPR 35.4, no party may call an expert or put in an expert’s report without the court’s permission, and permission is given for a named field. A plastic surgeon reports on scarring, burns and hand and upper limb injuries. A diagnosis of the psychological effect of disfigurement, or the effects of a head or spinal injury, belongs to other specialists.
Finding that out late is a common cause of delay. The CJC guidance expects an expert to say promptly when instructions fall outside their expertise (paragraph 23), so the other evidence can be arranged alongside the first report rather than after it.
How Do Written Questions Expose Gaps?
Written questions are where the gaps in a report usually surface. Under CPR 35.6, a party may put written questions to the other side’s expert or to a single joint expert within 28 days of service of the report, for the purpose only of clarifying it, and the answers are treated as part of the report. The personal injury protocol sets the same 28-day limit at paragraph 7.9.
Questions asking whether the expert saw the pre-injury GP records, or whether the scar had matured at the examination, show that the report had to work around a gap. Each exchange adds time.
A Checklist Before Instructing a Surgical Expert
- GP records covering the years before the injury, not only the period after it.
- Complete hospital records: emergency department notes, operation notes, clinic letters, and therapy and dressing clinic notes.
- Imaging reports, and the images themselves where a fracture or retained foreign body is in issue.
- Dated photographs from the injury onwards.
- A witness statement or statement of events describing the injury and its effect on daily life.
- A letter of instruction that names the issues, such as condition and prognosis or breach and causation, and the injuries to cover.
- Any other expert reports already served, and the court timetable if proceedings are under way.
Frequently Asked Questions
Who obtains the medical records? Under the personal injury protocol, the claimant’s solicitor organises access to the relevant records where a medical expert is to be instructed. The protocol’s specimen letter allows either the solicitor to obtain them or the expert to request them directly.
Can a claim be issued before the final medical report? Practice Direction 16 requires a report about the claimant’s injuries to be attached to the particulars of claim where the claimant relies on a doctor’s evidence. It does not require that report to be final. Whether to issue on an interim report is a decision for the solicitor.
Does a gap in the records count against one side? Not of itself. Missing records leave the expert’s opinion qualified, which helps neither party. What the records show, once they are obtained, can favour either.
When can a final prognosis be given for a scar? When the scar has settled enough for the expert to predict how it will look in future. NHS guidance says most scars fade over time and that this can take up to two years or more, so the timing depends on the scar and is the expert’s judgement in each case.
Related Reading
- Medical records as evidence in a negligence claim
- What the Vancouver Scar Scale measures
- Facial scarring and disfigurement claims
- How nerve recovery timelines affect hand injury claim valuation
Instructing a Plastic Surgery Expert
Prof. Hindocha prepares CPR Part 35 compliant medico-legal reports on scarring and burns, hand and upper limb injuries in personal injury and clinical negligence claims, for claimant and defendant solicitors. An instruction that arrives with the claim reference, the issues to address and the medical records lets the report deal with them from the start, including where the claim also involves private treatment costs that need to be addressed. See how to instruct.
This article is general information about medical evidence in personal injury claims in England and Wales. It is not legal advice and it is not clinical advice about any individual case. Anyone involved in a claim should take advice from a solicitor on their own circumstances.