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This report is concerned with liability, causation and the standard of care afforded to Miss B  by Dr A  in the preparation of his medical report for the purpose of settling a claim resulting from a road traffic accident that Miss B suffered on  *** 1996.  In particular it is concerned with post-traumatic stress attributed to the accident by Miss B  in relation to an episode of collapse and frequent subsequent seizures.

This report is prepared in accordance with part 35 of the Civil Procedure Rules 1999 on instruction from Mrs *** of the Solicitor Claims Division of the Medical *** Society reference *** dated *** 2000.  I have been asked to review the medical report from Dr A in addition to various accompanying documentation and to consider:-

1) Whether or not the standard of report afforded to Miss B fell below the standard that expected from a reasonably competent general practitioner preparing a report in those circumstances.

2) If there were such a breach of duty, whether it caused or materially contributed to Miss B under-settling her claim.

1) Letter of claim from *** Solicitors dated *** 2000.

2) Medical report prepared by Dr X dated ***2000.

3) Letter of instruction from Solicitors *** & Co. to Dr X.

4) Report by Dr A following claimants examination on ***1997.

5) Miss B's GP notes.

1) The documents include three expert witness reports,  two on instruction from Miss B’s solicitors and one independent discharge summary from the National Hospital for Neurology and Neurosurgery directly responsible for Miss B’s clinical care. There have been three solicitors involved in her case, which is legally aided.

2) Copy of the GP original record enclosed with the documentation appears incomplete. The record extends from ***1987 but there is a gap apparent between ***1992 and ***1995 and a further gap from this last entry until contemporaneous computer entries begin on ***1998.

4) Letter dated ***June 2000 from the ** solicitors currently representing Miss B, states in section 2 under ‘Privileged Legal Papers’ that Miss B’s original claim for compensation was handled by * & Co. The listed documentation, however, includes a copy letter of instruction to Dr A from solicitors * & Co issued on ***1997 to an Agent ***Limited (copy of whose instructions are not included).

5) The instructing letter from * & Co addressed to the Agent Ltd lists Ms B's injuries as ‘headaches, neck ache, stiff neck, shoulder pain, back pain, tingling/stinging sensations, shooting pains, dizziness and muscle pain to right arm’.

6) The instructions from * & Co to Agent Ltd are that ‘we would like you to carry out a medico-legal examination on our client and report to us thereafter’.  No further instructions are included and sight of instructions issued by the solicitors *& Co would be of interest.

1) Dr A is a General Medical Practitioner and member of the Medical *** Society who are representing his interests. He faces a claim being brought by Miss B who alleges that in reliance of a medical report prepared by Dr A she under-settled a claim for damages for personal injury.

2) Miss B, now aged 27, suffered ‘whiplash’ injury from a road traffic accident on *** 1996.  During her recovery two months later she collapsed at work and was taken to *** District Hospital where she was diagnosed as suffering from ‘stress’.

3) Six months later *** 1997 Miss B suffered a ‘seizure’ after which further and frequent ‘collapses/fits’ resulted in extensive investigation into the cause, initially thought to be due to epilepsy. Epilepsy was excluded two years later *** 1999 by the National Society for Epilepsy of the National Hospital for Neurology and Neurosurgery and she was instead diagnosed as suffering from ‘non-epileptic attack disorder’.

1) Acting on instruction and in his capacity as an expert GP examiner Dr A owed a ‘duty of care’ concerning Miss B's mental and physical health in preparing his report. His duty was to prepare a fair and balanced report that took into account all relevant aspects of the case.   The question to be answered, therefore,  is whether or not Dr A failed to meet the ‘standard of care’ that might be expected of him.

2) Both Miss B and her solicitor would expect Dr A to restrict his clinical history and examination to those areas relevant to the instructions he received. This may seem self-evident but it is worth drawing attention to the instructions submitted by * & Co to Agent *** Ltd in which the injuries are listed as ‘headaches, neck ache, stiff neck, shoulder pain, back pain, tingling/stinging sensations, shooting pains, dizziness and muscle pain to right arm’.  No suggestion is made that post-traumatic stress was a major, or significant, factor to be considered, yet it is common for solicitors specialising in personal injury to seek mental health reports independently and often following a preliminary questionnaire submitted directly to their client. It would be helpful to view any existing preliminary questionnaire or to ask whether such a routinely styled document was used prior to the selection of Dr A as an appropriate examiner.

3) Dr X, in his report prepared at the request of ** solcitors, concludes (p11.2) that ‘although [Dr A] was aware of the fact that she had ‘collapsed’ two months following the accident…. Dr A made no mention of the possibility of post traumatic stress in his report’ and further (p11.3) that ‘because of these failures…… the instructing solicitor was not aware of the possibility that there might be long term mental health problems and therefore may have settled the claim for a lower amount than it was actually worth’. He also felt (p9.14) that ‘Dr A should at least have highlighted the fact that this episode of ‘collapse’ might have been indicative of some degree of post-traumatic stress’.

4) There is no acknowledgement by Dr X  that Dr A, while drawing attention to Miss B's view (p3) of her stress in the main body of his report under ‘Mental State’ (p2), was under no obligation to agree with Miss B’s view of the cause of her collapse and it would be reasonable to assume that it was for this reason he omitted to highlight the issue in his summary. It would be misleading for Dr A to offer Miss B’s view as his own and compromise an impartial professional opinion.

5) Assuming Miss B was given the opportunity to discuss the content of Dr A's report with her solicitor and that her solicitor was experienced in personal injury law and in reviewing medico-legal reports then a further and expanded opinion on any subject of continuing concern could have been sought.   This could have been sought from Dr A as an amendment   (in so far as he felt able) or from an appropriate ‘mental health assessor’ (medically qualified Psychiatrist or Psychologist experienced in assessing ‘post-traumatic stress disorder’).  That no follow-up documentation is available either inviting Dr A to make further comment or seeking a further opinion suggests the risk of post-traumatic stress disorder, at the time of reporting, was perceived  as insignificant and that the subject has only recently been raised.

6) Was Miss B suffering from post-traumatic stress disorder and should it have been recognised at the time of Dr A’s examination?

i. Miss B’s case was reviewed (XX p4) in *** 1999 by *** Consultant Neurologist at the University of Birmingham who ‘could not convince [her]self of any evidence of post-traumatic stress disorder’ . This is despite the intervening period and unfolding pattern of ‘seizures’ since Dr A’s initial report and so the case was referred for a further opinion.

ii. Professor *** from the National Society for Epilepsy of the National Hospital for Neurology and Neurosurgery in his assessment of *** 1999 notes that ‘although [Ms B] has occasional flashbacks to the event there are no associated panic attacks.  Examination 'essentially normal’ (XX p5 letter 11.6.99).    In the detailed discharge summary of *** 1999 concerning her seizure pattern, epilepsy is excluded and Miss B's condition is identified as ‘non-epileptic attack disorder’.

iii. These opinions are helpful in excluding a formal diagnosis but still leave open the nature of Miss B’s illness.  It is alleged that Dr A failed to highlight the subject of post-traumatic stress but as both the Consultant Neurologist and Professor *** were unable to support this diagnosis it seems unreasonable to expect Dr A to have highlighted the subject beyond the point made in the main body of his report. The relevance, or otherwise, of Miss B’s ‘mental state’ in Dr A’s report was clear for all to see and the absence of a further comment in the summary need not be overstated.

7) Was Miss B's condition (now referred to as ‘non-epileptic attack disorder’) caused by the accident and was the degree to which stress was recognised in the main body of the report compatible with the comments made in Dr A's summary?

i. Communication sheet (XXp5) dated *** 1999 from the Professor *** states that ‘RTAs not severe enough to cause structural damage’ and  that ‘she [Miss B] became emotional and upset as test results coming back not as she expected’. Further  ‘not able to say if caused by RTA’.   Professor *** goes on to say (p6) ‘in the light of ambulatory EEG report and videotaped episodes…. decision made to slowly withdraw medication’. These comments have been made after very careful consideration following detailed investigation during her admission to hospital and fail to lend positive support for the accident as a cause for her condition.

ii. A letter dated *** 1997 (XXp3) records ‘Long history of anxiety…… things getting on top of her with pressure at work, industrial injuries claim regarding boyfriend and continuing difficult relationship with mother’ (there is no mention of the outcome of a previous road traffic accident in 1993 or whether there was any claim).

iii. A letter dated *** 1997 (XXp4) states that Miss B is under a lot of pressure at work and within relationship as partner currently going through court case causing tremendous strain. Although she denies she feels anxious or depressed these situations do seem more frequent when in a stressful situation’.

iv. Miss B ‘had a long history of anxiety that had, on previous occasions, been associated with various somatic symptoms’ (XX p9 s13 and letter of claim p2 s3.1.3).

v. These statements ii – iv are  compatible with a   pre-existing condition or pre-morbid personality and while they could be expanded upon by a suitably qualified medical ‘mental health professional’ they offer no help to Miss B in attributing her symptoms to the accident.

8) Was the fact that Dr A drew no attention to stress in his summary sufficient to account for a perceived under-settlement of her claim and was there anything in the GP record that could support this?

i. The body of Dr A's report (p3.s3 letter 26.2.97) states that Miss B ‘had a long history of anxiety with somatic symptoms, headaches, dizziness, tachycardia (rapid pulse), sweating, tiredness etc. She feels things getting on top of her with pressure at work, industrial injuries claim regarding boyfriend and continuing difficult relationship with mother' and also (letter of claim p2 s3.1.1) that she had suffered ‘a previous road traffic accident in 1993’.

These statements  obscure the underlying cause of her current condition and to some extent offer an alternative explanation for unusual symptoms in someone who might otherwise appear vulnerable.

ii. It is alleged (letter of claim p2 s3.1.1) that Dr A failed to take a detailed history,  particularly with reference to the previous road traffic accident in 1993 (Dr X p7.4).  This would depend on both the question being asked and the client’s recollection at the time of interview. Dr X ( p7.4) recommends clarification from Miss B as to whether she was questioned on this matter but given the interval of time since Dr A’s examination it would seem unreasonable to expect her to feel confident in recalling the detail of Dr A’s direct questioning or in recalling her response at that time.

7) Would it have mattered if Dr A had recorded the fact of Miss B's RTA in 1993?

1) Dr A took a detailed history when he examined Miss B on *** 1997.   He gave a reasonable opinion of her physical condition in his summary and drew attention to Miss ’s view of her collapse, concerning stress, in the main body of his report.

2) There is no evidence to show that an amendment or a specialist opinion was sought by the instructing solicitor seeking clarification of any aspect of Dr A’s report.

3)  It would be reasonable to accept that at the time of Dr A's examination, on receipt of his report and for some time afterwards there was no continuing concern on the subject of stress either by Miss B or her instructing solicitor, nor has it been suggested that the instructing solicitor failed in his duty of care to advise Miss B accordingly.

4) Dr A could have made some comment in his summary about Miss B’s view of her collapse in *** 1997 and also some comment about the relevance this might have in the onset of post-traumatic stress disorder but:-

i. Dr A felt unable to support the onset of such a disorder, or its likely development, and a comment to this affect would have been unhelpful to Miss B.   Dr A's view is that 'the severity of the accident and her progress since the accident did not suggest any serious or persistent pathology' (p3 C7 s3.1.2 above).

ii. The inclusion of a comment unsupportive of significant continuing stress would be of no added value in improving Miss B's settlement and its absence in the summary does not, in my view, amount to a significant failure of the standard of care she might have expected.

5) No convincing evidence has been offered to support the contention that Miss B was suffering post-traumatic stress disorder.  Dr A drew attention to Miss B’s ‘mental state’ concerning stress in the main body of his report and the absence of a further comment in his summary need not be overstated.  The present nature of Miss B’s condition is in doubt, its cause is uncertain and no compelling evidence has been presented to conclude that it was caused by the accident.

6) For a further opinion concerning the nature of post-traumatic stress disorder I would recommend Dr Y, Consultant Psychiatrist who has a special interest the subject.

[H] Declaration