Expert Witness Secrets

Is Covid the reset that the medical-legal system needed?

March 22, 2022 Dr Sandeep Senghera BDS, University certified expert witness Season 4 Episode 27
Expert Witness Secrets
Is Covid the reset that the medical-legal system needed?
Show Notes Transcript

Covid has forced a change for good. 


This change would otherwise take decades if market forces, lobbying and legislation, ran its natural course. 


In this episode, we explore the changes to the medical legal systems that has created immediate changes , intermediate changes and a course correction to the future path. 

COVID has been a real change for good in some respects in the medical legal field. In this episode, we're going to look at ways in which this pandemic, which has been a huge disaster for humanity, and, but how it's affected the way in which we've actually changed our work ways. And I'm sure you've experienced this, I've experienced this, we're all noticing that we are doing things very differently today, in our normal nine to five work, the medical legal system has been very, very affected by the changes. Largely forced upon it, I think within the constraints of people being unable to leave their homes and solicitors and claimants and defendants being effectively stuck, being unable to attend hearings, and being unable to actually interview an examine, the claimant for expert witness work has been very challenging as well, as well for all of us. But I've noticed that there's been some marked changes to the way in which we've operated as a practice. And I hope to explore some of those things in this episode, which is designed largely to understand if there's been some fundamental resets, within the medical legal system, and whether they're justified, whether they made a difference. 


What if we hadn't had this, that's a good starting point. What would things be like if we didn't actually have this pandemic in the medical legal world? I think the expert witness field would be very different. I think the lawyers, judges, and barristers that I've spoken to over the last two years at conferences, presentations, in discussions and interviews, have all come back with a very similar outlook on the impact of the pandemic. And it's been largely around fact that we've got a lot of streamlining, we've got a lot of systems and a lot of processes that would otherwise take I think, decades, if not, in some cases, sort of 40-50 years to see material changes actually become effective in the very old century old legal system that we have. Of course, some of this would have taken a lot of effort lobbying and legislation changes, which ultimately would have needed inspirational lobbyists to make this happen. And invariably, my experience, that all of the changes that the legal system tends to take along a long, long time. And they're lovely, because we're set in our ways. I think there's one of the fundamental problems I've seen in the wider context of work-life balance, is that there seemed to be this unwritten rule that everybody needs to be in the same place at the same time. And it had a disastrous effect on transport on people's livelihoods in terms of their quality of life, and not spending as much time with their families and friends spending most of it traveling unnecessarily. And I think the impact on the globe, I think, in terms of the environmental improvements, certainly lots of lots of benefits, I think, that are built within the system. Let's look at these in more detail now. These are the immediate changes that I've seen has been the introduction of remote examinations. This is a way in which an expert can conduct an interview and in some cases, depending on your area of expertise, carry out a remote examination. Now we know this isn't going to be for every single area of expertise. But I think it's the principle that needs to be understood. Some experts have separated off the interview aspect in a remote manner. And being able to carry out a physical examination in a shorter period of time is something I've been fond of it certainly reduces the amount of physical face time that's required, which, if you remember the time at which we were looking at keeping face to face contacts under 15 minutes to reduce the chances of spreading the pandemic. It was ultimately, I think, a force for good, patients and clients that are being interviewed for the purposes of expert witness work, and they don't have the privilege of spending an hour to hour and a half with you because they often having to take time off work. So I think they've welcomed it as a change for good. They're now spending less time traveling around, in some cases quite significant distances to see the expert, which can often be a full day, I mean I still have experiences where claimants are having to afford to take the entire day off because of travel, and their shift patterns and so on. I think it's highly unfair that the system is so essentially forcing that on everybody, when there was a possibility as there is a post pandemic of the need. And I suppose justification for remote examinations, when it is technically possible, I think my advice is, if you feel that a remote examination is suitable, then you know, please do encourage your instructing party to consider it. And conversely, if you don't think remote examination is a good idea. I don't think it is suitable, you should, I think you should also flag that as well. Because there are going to be cases where it's not very, very useful. In fact, if any of that could hinder your ability to make executive opinions on a matter that's ultimately quite important. On that note, regarding remote examinations, there's the introduction, I should say, and implementation, and now a successful rollout of remote hearings. And I've heard from judges who've commented on how effective a remote hearing can actually be, there was always this elephant in the room as to whether people giving evidence remotely would be placed under the same scrutiny if they were doing this from the comfort of their home and, and all of these what ifs that would probably be hanging over us and not allow us to move forward had it not been for the pandemic, which means we've got the improved efficiency is what the civil legal system has largely noticed. I mean, it's not entirely foolproof. And of course, there's times when physical hearings are required. But there's really part of my training as regards to courtroom courtroom skills and was ironically conducted remotely, largely because the way in which that teaching was carried out was done in a remote fashion. So I found that my preparation, my demeanor, my approach was no different, I suppose to being in a court environment. However, having the benefits of being able to deliver evidence remotely, I think will probably serve the expert in their favor. Ultimately, there's no nerves of being in a new environment, there's no additional time required to travel to and from a court and often sitting around a lot, an awful lot of time in the courtroom environment, the cost can certainly be reduced significantly to the legal system as a result of this. And I think, ultimately, it's the decision for the legal system to decide whether or not the expert will or will not need to be physically present. But my experience so far, both in terms of training, no practical experience, as yet remote hearings, in terms of the provision of expert evidence, but I found it largely quite a liberating experience. I think a lot of the other parties involved in the legal process would also agree with that, that there seems to be the pressure taken off that in terms of the intimidation of being in a courtroom and all of the unnecessary aspects associated with getting lots of different people in one room in order to conduct a hearing is gone and the practical side of things becomes much more effective in terms of the speed and in some cases, the overall duration of a hearing can be significantly reduced as a result of this.


Sir Geoffrey Vos, the minister of the roles and head of the Justice presented to myself and a group of experts in 2021, the expert witness conference held by Bond Solon, and there was this real clear mandate that was set out by serving us in terms of digitalising. The entire process, that's the case management, that's all of the paperwork, all of the communications, all of the submission of evidence going towards the direction of full digitalization. In other words, there's no need to have vast amounts of paperwork being posted around. Those of you who've been an expert witness work for long enough will know that, in those days when you get a copy of all of the relevant forms of evidence or the documentation, and I would dread the day when that large package that you had to open the front door for would have because it wouldn't fit through the letterbox would come through because it meant lots and lots of paperwork management. So that's going, which is a great sign, in terms of services opinion on how long this is going to take. I think it's like a lot of the digitalization strategies that government has, I think it's a movement in a certain direction. But in terms of getting a commitment of a date, I have no idea. I didn't get a particularly clear response from servos. About that either when I asked him, but I think the feeling is that, you know, it's going to reduce some of these unnecessary costs associated with litigation, it's going to certainly speed things up. And there were some certainly some considerations for the digital future, largely in the civil claims management to increase the efficiency, lower the cost, and increase the speed of reaching a desired outcome, firstly, was to sort of have a portal to collate claims to essentially limit the legal costs associated with filing and managing the claim itself. And in a simple, easy to access portal, I know that the civil system has served in various jurisdictions and has some form of digital portal to submit claims and collect all of claim related documents. But this is really about making it a go to place. So you could, theoretically, as an expert, you could submit your evidence. In your expert evidence report could be submitted by the instructing party, or whoever's managing the claim itself, directly through this system, rather than a sort of constant exchange of emails, and in some cases, paper post. Secondly, was the court order to effectively inform parties electronically. So you know, instead of having this long, drawn out process, this information exchange from the originating from the courts could all be theoretically in the future, delivered online. And ultimately, the next concern was the ability to remind all of the relevant parties their responsibilities resulting from a court order. So there could be a way in which this is done in an automatic manner, so that all of the parties are aware of what these deadlines are, and what their responsibilities are, as a result of a court order. And that could be for the expert, a specific instruction that's received electronically via the court or through the instructing policy so that you get more input into it as to what the course is requiring of you if there's any supplementary evidence. But ultimately, this is about speeding things up, isn't it? This is about removing some of the frictions and the barriers that would, in my experience, sometimes take months from a court order to be passed through. And it's largely administrative delays I've experienced that tend to cause the biggest problems. So you may have been instructed under a court order via the instructing party three months before you get instructed. And then you might have only a week or a few days, in some cases to actually deliver that evidence, which puts a lot of the stress on the experts. So this hopeful future digitalisation approach could give the experts that extra breathing space to spend more time with considering and delivering their expert evidence so that they're not the unfought the unfortunate losers of a fairly slow and drawn out administrative process, which can often put the expert in a tight corner. I've certainly experienced that even this week. I've got two very time sensitive reports. And I think looking back through the paperwork in both those cases, there's been a drag out two to three months. In both cases of paperwork being delayed in order for me to be suitably and appropriately instructed on what I've been asked to do. And this last point really was the use of the blockchain to perform the backbone of the document management process. Now, in simple terms, what this means is a centralized ledger, which would form the undisputed manner in which the paperwork can be dealt with digitally, in a very easy to follow audited way. This is probably some years off, but I think it's ultimately about this entire drive towards this digital future, more remote hearings, having a very different approach to the overall claim management. So it becomes a more centralized way, all parties are informed electronically. The system itself, the underlying digital portal itself, can be responsible for speeding up the processes, if you like, sort of the the effectiveness that we see with the delivery of Amazon, and all of these successful logistics companies that have really leveraged technology to the absolute extreme as much as they can to make the the experience for all parties involved, whether you're the supplier of products, in the case of Amazon, whether you're delivering the products, or if you're actually the the actual end user, the customer itself, all of the parties tend to win, when the friction of the communication and delivery between the different parties is, is speeded up, and the friction is removed, so that you can deliver in a much more effective way. I think I think the future really, as I'm seeing in terms of what COVID has done in the expert witness field and the medical legal field, and certainly is about having this smart contracts that sort of transformed the engagement and limit the amount of disputes about a communication between the parties blockchains to create this immutable transfer and storage of electronic contracts, and possibly, if cryptocurrencies ever form a real sort of substantiated manner in which value can be exchanged, possibly a way in which electronic and instant transactions, possibly the backing of the central banks could become a way in which claims are ultimately resolved financially. There's obviously a lot a lot to go, really lots and lots of work to do. And I can imagine this taking years to unfold and become effective. But I think, if we go back to really, what I wanted to really get across in this particular podcast is, this has been a major reset, in my opinion, in terms of movement of direction in the right direction. It's probably speeded things up by a factor of five to 10 years in my opinion, and this means that we're moving towards a more effective and more slicker and certainly a more easier to interact system for experts and for lawyers, dealing with expert evidence and dealing with medical legal or any expert witness related work.