Academic journal article Melbourne University Law Review

The Injury Brokers: An Empirical Profile of Medical Expert Witnesses in Personal Injury Litigation

Academic journal article Melbourne University Law Review

The Injury Brokers: An Empirical Profile of Medical Expert Witnesses in Personal Injury Litigation

Article excerpt

[In the civil justice system, medical expert witnesses act as brokers of what qualifies as legally recognised and compensable injury. Despite the central importance of their role, and continuing debate over the use of expert evidence, remarkably little empirical evidence is available about who medical experts are and what they do. This article reports findings from a study that built a detailed empirical profile of nearly 3000 instances of medical expert witness testimony, drawing from a sample of transport accident compensation cases in Victoria, Australia.]

CONTENTS

 I  Introduction
 II Evidentiary Gaps and Data Sources
III Study Setting, Design and Data
      A Study Setting
      B Case Identification, Acquisition and Eligibility
      C Variables and Data Coding
          1 Characteristics of Experts
          2 Basis of Expert Involvement
          3 Engagement of Non-Treating Experts
          4 Form of Expert Evidence
      D Case Review and Inter-Rater Agreement
      E Analysis
 IV Findings
       A Case Characteristics
       B Expert Involvement
       C Concentration of Expert Witness Activity among
         Non-Treating Experts
       D Frequent Non-Treating Experts
       E Gender
   V Themes and Policy Implications
       A Experts Aplenty
       B Pages Not Voices
       C Repetition and Alignment
       D An Exclusive Club
       E Study Strengths and Weaknesses
  VI Conclusion

I INTRODUCTION

Injury is a leading cause of mortality, morbidity and permanent disability in Australia and globally. (1) More than 2.4 million Australians suffer from disabling long-term health conditions attributable to injuries. (2) The vast majority of these injuries occur at work (42 per cent), during exercise or sport (20 per cent), in transport accidents (17 per cent), or at home (12 per cent)?

Law's most direct response to the problem of injury is through personal injury compensation, particularly for transport accident and work-related conditions. The compensation landscape in Australia is a complex combination of no-fault and statutorily modified common law arrangements. (4) Australia's transport accident and workers' compensation schemes handle caseloads and channel resources on a vast scale. They receive more than 180 000 new claims each year (5) and award billions of dollars in compensation. In 2009-10, the cost of workers' compensation schemes alone, in terms of benefits paid and operational and administrative costs, was $7.3 billion. (6)

Many of the key determinations in adjudicating claims for compensation--who is eligible, for how much, and for how long--turn on assessments of the claimant's post-injury health state. Assessments of health states are largely, although not exclusively, (7) scientific and clinical constructions. Claimants, compensation agencies and adjudicators routinely turn to medical professionals to make these assessments. In this way, medical expert witnesses play a central role in the functioning of personal injury compensation systems. (8) Acting in their capacity as treating practitioners, or as hired medico-legal consultants, medical experts provide compensation systems with evidence relating to claimants' injuries, treatment, impairment and disability.

The number of health professionals who devote their time to acting as medical experts is not large, especially in highly specialised fields like neurosurgery and orthopaedic surgery, where there are relatively small numbers of practitioners and the opportunity costs of time away from clinical practice are high. Some experts are regarded as better--more credible, authoritative, articulate, and persuasive--than others. (9) In other words, medical expertise is a finite resource and there is product differentiation. These are market conditions, and there is clear evidence that one flourishes in this area. (10) Expert evidence is the currency; (11) it is traded in support of the claims and counterclaims of injured parties and insurers. …

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