Claimant given permission to rely on covert recording of defendant’s medical examination

Calls from the Judiciary for APIL and FOIL to agree protocol for the recording of medico legal examinations

Master Davison in Samantha Mustard v Jamie Flowers (1) Stephen Flower (2) & Direct Line Insurance (3) [2019] EWCH 2623 (QB) called for cross party talks on resolving the increasingly thorny issue of recording examinations with medical experts.

“…the sooner that there can be some kind of protocol agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers which governs the recording of medico-legal examinations the better. It is in the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred.

In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an "industry-wide" agreed model which caters for the many issues capable of arising and, I might add, which pays careful attention to the containment of the costs that might potentially be generated …”

Background

This claim arose from an RTA. It was claimed that the claimant had sustained a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury which left her with cognitive and other deficits. There was a significant difference of opinion between the parties’ respective medical experts.

The court permitted expert medical evidence from 8 fields. The claimant recorded the examinations by the defendant’s experts on a digital device. In some cases, the recordings were covert, and on other occasions, the agreement of the expert was sought.

During the neuropsychological examination, the defendant’s expert agreed to a recording of the clinical examination, but not the neuropsychological testing. The claimant agreed, and according to her account, tried to switch off the device but failed to do so; inadvertently, recording the whole examination, including the neuropsychological testing.

The defendant objected to the recording of the testing and applied to exclude it from the evidence to be considered at trial. The claimant cross applied and filed a supplementary statement from her own neuropsychological expert which criticised the defendant’s expert’s medical examination and suggested that there were serious errors in the application of the neuropsychological testing.

Outcome

Master Davison’s view was that the covert recordings were “reprehensible” but he accepted the claimant’s explanation that she inadvertently recorded the neuropsychological testing. Given the relevance and probative value of the recordings, they were admitted.

Discussion

We welcome the judicial encouragement of a discussion on this issue. Clearly, a balance must be struck between ensuring quality medical evidence, protecting the claimant and the experts, not giving either side an unfair advantage and not letting costs get out of control.

We have dealt with this issue on a number of occasions and we intend to work with FOIL to ensure that defendants’ interests are protected.

We would be keen to make sure that we reflect the views of the defendant community and we therefore encourage you to contact us with any concerns that you have arising out of this decision and the issue of recording of examinations: 

Please contact Liam McGuire, Partner or Karim Ariane, Associate on 0151 243 3313 or email at Karim.Ariane@weightmans.com.

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