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Peyton Medico-Legal Services - The Basic Skills Of Being An Expert Witness Are Similar In Different Sectors, The Difference Is The Content And The Context ...

Company vision and mission

Throughout his surgical career, Mr Rodney Peyton OBE MD has had one driving purpose, to obtain better outcomes for patients. He has always believed the best way to a better future is to actively create and plan it yourself and therefore he has always been proactive in fostering high standards within the profession both as a clinician and as an educator.

He founded Peyton Medico-Legal Services in 1984 and, in keeping with his passion, the vision and mission for the company was summed up in his Credo :-

“To enable clients, their legal advisers and the court to more clearly understand the nature of medical evidence in individual cases so that they can make better-informed decisions”.

Particularly concerning medical malpractice/negligence cases, it is important to realize that over 70% of potential claims have no merit, usually resulting from a lack of understanding of the clinical process and the reasons for particular outcomes. On the other hand, medical mistakes do occur and patients and their families need to be able to seek explanations and have recourse to justice when the system has failed them.

This right always has to be balanced with fairness and the rights of medical practitioners for whom any claim, justified or not, can be a very stressful experience. Therefore, for the benefit of all involved, expectations should be managed at an early stage and, if a claim has no merit, it can be discontinued thus avoiding the unnecessary stress on practitioners of prolonged, futile litigation.

Initial challenges

Initially, society in general and the medical and legal professions, in particular, held a paternalistic view towards patients and clients. Consequently, there was huge resistance, particularly within the medical profession, to the idea that there should be a full examination of the records with explanation and accountability when there had been a poor outcome. This resulted in a considerable reluctance to engage in such a process unless the poor outcomes were both obvious and catastrophic. Consequently, any doctor willing to engage with the legal profession and objectively examine the clinical process was regarded by many as being disloyal to their colleagues.

Over the years this attitude has changed and there is now a duty of candour with possible criminal sanctions if breached. Concurrently, medico-legal work has become more professionalized and associated with better supervision by the Courts. This has resulted in higher expectations of expert witnesses who are expected to clearly understand that, within the justice system, their duty is primarily to the Court and they must act with integrity, remaining independent and objective in their opinions.

Types of Services

In medico-legal practice, there are two main strands of service provided by expert witnesses, those about personal injuries, sustained for instance at work or in road traffic accidents, as well as medical negligence.

Both require forensic examination, possibly the more so concerning auto-related personal injury claims, where there has long been a tendency to exaggeration, if not fundamental dishonesty, driven by the business environment with its emphasis on financial compensation for both claimant and lawyer. In many cases, the level of reimbursement to lawyers is directly proportional to the size of the claim so there is always a temptation to choose “experts” who will provide opinions slanted to portray the claimant’s case in the best possible light, to maximize returns. This has been a major source of fraud with an estimated cost, according to the National Insurance Crime Bureau in the United States, of more than $40 billion per year that is $400 to $700 per family. Unfortunately, in some part, this has been enabled by those within the medical profession seeking to maintain an ongoing business relationship with the lawyers.

This situation is now being addressed by the court system. One of the biggest factors in the raising of standards has been the loss of immunity from prosecution for expert witnesses who demonstrate a lack of professionalism, and recently there have been several high-profile cases in several jurisdictions where those professionals involved have not only lost their professional recognition but been given custodial sentences.

The maintenance of integrity and the highest professional standards has therefore been at the forefront of Peyton Medico-Legal Services.

Legal Systems

In many jurisdictions around the world, there has been a perceptual change in the function of the court, from purely making decisions in a case to actively seeking a resolution. A decision usually comes down on one side or another, a winner and a loser, whereas dispute resolution aims to find a common ground, helping the parties come to a mutual agreement.

Initially, this was most obvious in the family court system, for instance in agreeing shared parenting, but now more and more it has developed in medico-legal practice under the process of Alternative Dispute Resolution (ADR), especially utilising facilitated mediation.

Mr Peyton has produced a simple guide to the process of facilitative mediation, available through the bookstore on his website www.rpeyton.com

This evolution, accelerated by the pandemic, has led to an increased focus on technology within the court system. There is now increasing use of artificial intelligence to produce potential solutions in particular scenarios, allowing all concerned to consider the likely outcome if there has to be a judicial determination.

Most notably, this has been tried in Canada with the Canadian Resolution Tribunal. This is a portal that uses artificial intelligence to resolve low-cost claims and so far it has been shown that the suggested outcome was accurate in at least two-thirds of cases so it is something that may be used increasingly.

The main downside, however, is that the system is open to cyber-attacks, such as ransomware, so Courts are unlikely to go paperless anytime shortly unless security can be fully guaranteed.

Present Challenges

Trust in the professions of law and medicine relies on a general feeling of certainty in their procedures and therefore the progress of change is usually slow, being evolutionary as opposed to revolutionary. The current pandemic has completely altered this dynamic and it has been necessary to adapt, for instance by undertaking examinations remotely using video conferencing (see picture). This sort of examination has its limitations in that plaintiffs can only demonstrate movements but it is not possible to physically examine them, for instance checking muscle tension and spasm, joint movements and the possibility of ligamentus damage.

On the positive side, it has been possible to appear remotely in Court from the office or even a home environment via sites such as Court Link, which is very much more efficient in terms of time since there is no requirement for travel or waiting around as appearances can be scheduled.

It has even allowed experts to be called to give live evidence from different countries, which otherwise would be a very expensive exercise. Now that it has been trialled and proven successful, it is likely in future these processes will continue to make for a faster, better and more efficient service.

Unfortunately, as always with change, there is a downside with only 50% of the normal western population having access to and the ability to efficiently use the internet.

Coupled with this there has been a marked increase in the digitalization of records and pdf posting which has also been transformational. There has been a marked increase in processing and capability of storage for the Courts, but unfortunately, this is limitless, tends to be unstructured and needs filters to assist in managing it. Users have access to lots of “knowledge” but they may not fully understand what they are reading. This can lead to a general increase in expectation as online information can be interpreted as being factual and therefore relied on upon error. Now, more than ever, there is a need for specialist experts to assist Courts in their deliberations.

Change is inevitable. The sheer pace at the moment does throw up some difficulties but overall it bodes well for the future.

Keeping Up to date

Fundamental to medico-legal practice, experts have to keep up to date with two professions, the evolving medical knowledge which is accelerating exponentially and knowledge of court process with changes as case law evolves.The objective is for experts to remain relevant to clients and their legal advisers which also means listening to their feedback. Professional relationships are paramount and Rodney has been involved in training doctors and lawyers to deal with medico-legal cases, both individually and in professional groups, as a trainer and keynote speaker.

Such platforms enhance communication and approachability, and Rodney has ensured this by providing educational experiences both for doctors acting as expert witnesses and the legal profession at “Learn at Lunch” seminars within individual companies. He has also been involved with larger medico-legal conferences as a keynote speaker and also organizing training for institutions such as the Royal College of Surgeons of England.

Evaluating Success

Success is in the eye of the beholder and there are many different definitions. Corporate success is about positive outcomes for clients, customers or patients. It is generally externally-facing and measured against specific goals and terms of reference. Personal success is radically different, it is an emotion or a feeling and is related to an attitude of mind. It is about growth, development and contribution and is not just a succession of goals achieved but in who you become as you achieve them, how you change, how you grow and stay relevant as well as what contribution you are making to something well beyond yourself.

This highlights the importance of continual learning. It has been said that a wise man learns from his experiences, however, a genius learns from the experiences of others, whether these were positive or negative.

Success, therefore, is not a destination but a never-ending journey of learning, self-discovery and self-development and starts with the mindset of knowing, not just what you want, but specifically why you want it, in other words living on purpose.

The basic skills of being an expert witness are similar in different sectors, the difference is the content and the context.

It starts with a wide-ranging basic level of knowledge that is built on my experience. This may be personal and backed up by up-to-date literature and discussion with other experts in a particular sector. Peyton Medico-Legal began by concentrating on personal injury cases. After years of clinical and legal experience, the company entered into the field of medical negligence which is more fluid with the rapid changes in medical practice.

When combined with his management experience of running several investment companies, it was possible to expand into more corporate issues. Continuing professional development in terms of business administration meant Peyton Medico-Legal was able to bring project management techniques into the medical field. This has allowed, for instance, the use of facilitative mediation as alternative dispute resolution, both at the institutional level and for individual claimants.

Accomplishments

Mr JWR Peyton OBE MD is by profession a Consultant Trauma Surgeon and regarded by many as the leading surgical coach in the world. He is also a graduate of medical education and law. He has well over three decades of experience in medico-legal matters and is rightly regarded as an authority on medico-legal issues, someone to whom experts go for advice. He is currently the Chairman of the International Institute of Medical Project Management.

He is a teacher and trainer within the medical profession and, about medico-legal practice, has taught medico-legal courses for a wide variety of institutions including the Royal College of Surgeons in England.

His topics cover personal injury, medical malpractice and alternative dispute resolution, specifically mediation.

As an author, he has written articles and books on medico-legal practice, on mediation and is both an author and Co-Editor of the Cambridge Textbook of Accident and Emergency Medicine.

Throughout a long career he has been involved in more than 70,000 personal injury cases and 3,000 cases of medical negligence as well as the mediation of disputes related to private finance initiatives within the Health Services.

His impact on professional and medico-legal issues has been acknowledged by many prestigious awards in the UK, Ireland, Germany, Sweden and South Africa.

He has been honored by the Queen with an OBE and is the only living person awarded Fellowships in five medical Royal Colleges of the UK and Ireland.

Sources and References https://www.rpeyton.com/