What makes a great letter of instruction?

It may seem obvious as to what should be included in a letter of instruction, and perhaps of more relevance a letter of approach, however, a lack of relevant information can lead to a whole host of issues and potentially the instruction of a less-than-ideal expert witness.

Getting it right from the beginning

A good letter of approach, or for that matter an email or a telephone call, can make a massive difference in setting you off on the right path to finding the best expert witness for your cases and save you a significant amount of time and effort in the long term.

As we all know, cases are rarely straight forward in the catastrophic injury field. The Claimant frequently has more than one ‘type’ of injury. Your client that was involved in a high-speed road traffic collision is unlikely to have suffered a neurological injury without there being some orthopaedic injuries thrown into the mix. The child in the wrongful birth case that has multiple congenital limb abnormalities may also have significant respiratory issues associated with the development of their rib cage and may require long term mechanical ventilation.

Where do you start with these cases trying to work out what clinical speciality you need your experts to have experience in? Unfortunately, you are not likely to be able to instruct multiple physiotherapists for example, all with different clinical expertise, to provide reports to meet every different need of your client. Your ideal Occupational Therapy expert may be the go-to clinical expert in neurology but doesn’t treat orthopaedic trauma. The hand therapist that specialises in congenital hand defects, doesn’t treat lower limb conditions so can’t provide an opinion on both areas.

There may not be an easy answer in the more complex of cases, however, including all the relevant details in your approach will help our expert witnesses to confirm if this particular case lies within their area of expertise and if they are able to provide the high standard of report that you need for your client.

Consider at this stage, which injuries remain problematic. Did your client sustain an injury to their brain at the time of the index event, but actually they don’t really present with any symptoms now and an expert with orthopaedic knowledge and experience would be much more valuable to the case? Or do both of the types of injury sustained in the incident remain problematic? In which case do you need an expert who is able to consider all types of injuries and presentation. Do you need to specify this at the approach stage?

Is past medical history relevant?

YES! Very often a claimant’s past medical history can absolutely influence which expert witness you need to instruct. If the individual has a significant past medical history, for example they are an amputee, or they have previously been diagnosed with a complex condition such as functional neurological disorder, it is essential that the expert witnesses approached regarding the case are made aware. Conditions such as these are complex in their own right. Add in an additional injury and the case then becomes significantly more challenging, even if on the face of things the new injury is unrelated.

Think about the claimant with a previous history of FND, all relatively well managed. This individual experiences a completely unrelated incident, whether it be clinical negligence or personal injury, however the stress, pain and likely inability to undertake the FND management

programme results in a significant deterioration in that aspect of their presentation. You instruct an expert witness that is the perfect candidate for the new injuries, but they have no experience in treating FND, how can they unpick the presentation, how do they know if the treatment they would normally recommend is feasible, will be tolerated and will improve the prognosis? What if the opposite expert does have in depth clinical expertise in FND? Will that ultimately give them an advantage?

Situations such as this will inevitably need to be solved on a case-by-case basis. There is unlikely to be one definitive answer. However, proving all relevant details at the time of approach or instruction is the most efficient way to help secure the correct expert witness. It is also likely that you may need to email or speak in person with potential experts to discuss the Claimant’s presentation to confirm if they are the right person to instruct.

Securing the best expert witness for the case at the outset will absolutely save time and effort over the duration of the case.

Tracy Fields

BSc Hons Physiotherapy, LLM

Head of Therapy Expert Witness Services

Maggie Sargent and Associates

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