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Legal eagles

For some physios, courtroom drama is all in a day’s work.

For some physios, courtroom drama is all in a day’s work. Janet Wright finds out what it’s like to be an expert witness

The first time Zena Schofield acted as an expert witness, she challenged the prosecution and gave evidence saving a famous opera singer’s freedom and career.

Accused of causing grievous bodily harm to his wife’s lover, the celebrated opera singer was facing a prison sentence. The singer admitted throwing a punch, but denied having caused serious injury.

The other man claimed he could only turn his head five degrees to either side, with intense pain – though he could still tip his ear towards his shoulder without problem. Ms Schofield considered this was biomechanically impossible, and said so.

It was a daunting moment when the prosecutor stood up and asked her if she meant the witness was lying. ‘Either that or he hasn’t been examined properly, and I think it’s both,’ Ms Schofield told the court. ‘Those two movements are interrelated, so if he says he can only move his head five degrees to the side with severe pain, but can drop his head to the side without pain, he’s lying.’

The jury saw her point and found the singer not guilty. That took place 20 years ago, and Ms Schofield is still using her expertise in criminal cases.

A varied caseload

While the majority of expert witness physiotherapists work in civil rather than criminal cases (see panel: What kind of case?), some, like Ms Schofield, specialise in criminal cases. The work can be extraordinarily varied.

For a man accused of strangling his wife, who claimed a childhood injury had left his wrists too weak, Ms Schofield tried out a computerised muscle-function test that was supposed to be impossible to fool. When she found she could easily beat it herself, it had to be dropped by the defence team.

In other cases, she has used gait analysis – once with an alleged armed robber who claimed he could not have been seen fleeing from the scene as he had a heavy limp, but forgot to do it while she was assessing him in prison.

Ms Schofield is now at the forefront of a movement to raise the status of physiotherapists as expert witnesses. One part of this is about improving recognition of physiotherapy itself. ‘The legal profession is steadily realising we can bring significant additional opinion to their cases, or we may also successfully challenge medical expert opinions to change the outcome of a case. Routinely lawyers are increasingly seeking our expertise,’ she notes.

Another aspect of the push to raise physiotherapists’ status as expert witnesses focuses on increasing their courtroom skills. Ms Schofield is a founder member of the Medico-Legal Association of Chartered Physiotherapists that runs courses giving would-be expert witnesses the presentation skills they need before setting foot in court.

‘The first time I gave evidence I was terrified,’ says fellow MLACP member Susan Filson, who focuses on serious trauma in civil work. ‘The barrister, whom I still do a lot of work for, must have seen I was terrified and said: “Who in the room knows more about physiotherapy than you do? Get in there and strut your stuff”.’

Civil work

In civil cases, physiotherapists are now less likely to have their day in court. Up till a decade ago, civil proceedings could drag on for years; with both sides calling witnesses of questionable expertise while the costs spiralled.

Then the Civil Procedure Rules 1998 simplified matters. One consequence is both sides now use the same joint expert witness, whose duty is to the court to produce the best evidence. Each side also has a team of experts, known as a quantum team. Their role is to compile reports in an effort to resolve the matter before it comes to court.

A quantum team can include a care expert, occupational therapist, physiotherapist, speech therapist, psychologist and various medical people, depending on the injuries. There may also be a technology expert, an architect or a housing expert. They all visit the claimant to assess their reasonable needs now and in the future.

Though it’s now unusual for joint experts to be called into court, as the aim is to settle civil cases before this, it can’t be ruled out. ‘You’re an independent expert, so you have to say what you believe to be true,’ says Ms Filson.

Be prepared

For cases that do get to court, you need to be well prepared. Ms Schofield challenged several doctors and physiotherapists in court who hadn’t carried out adequate tests on the patient – or any tests at all, in some cases.

‘Your duties are to be truthful about the facts, thorough in your clinical reasoning, honest in your opinion, and complete in coverage of all relevant matters,’ Ms Schofield enumerates. You also need good professional knowledge and understanding of the law, she adds.

A physiotherapist’s evidence may be very different from a doctor’s, and it may be their evidence can challenge a routine medical diagnosis. ‘An expert physiotherapist can bring to the court a greater understanding of the claimant’s present and future daily needs than a medical diagnosis and prognosis,’ says Ms Schofield.

‘We have a variety of subtle testing procedures that may suggest significant disc pathology or peripheral nerve damage when routine medical neurological examination has appeared normal.’ A nerve can be 70 per cent damaged and still give normal responses to a nerve conduction study, she says, but when a physio uses a stretching or rotating test its response will reveal the damage.

So why be an expert witness? Well, the experts say it’s rewarding, intellectually stimulating, offers variety and pays well. It can also include a lot of travel. Ms Filson has visited clients in California, Ireland, Madrid, the south of France and all over the UK – but has spent a lot of time in hotel rooms, and says philosophically ‘My geography has improved immensely.’

So what’s the downside?

There are of course downsides, as in any profession. One is that it is exceptionally time-consuming. ‘The worst of it is working all hours, seven days a week, always at the beck and call of the court or the solicitors,’ says Ms Filson.

There are pitfalls too, that many beginners would not think of. Ms Schofield warns: ‘It can be rewarding, but it isn’t risk-free. When people are considering this they need to have some understanding of what an expert is. It can even be career-threatening if you don’t prepare properly and offer a good level of knowledge.’

Ms Filson now mentors younger physios, with advice she’s gleaned over the years. Never be afraid to tell a lawyer you need more information in order to complete a report, for example. And don’t be led into saying things you’re not certain about. ‘Barristers and solicitors try and push you all sorts of ways,’ she comments.

Her advice to anyone wanting to work as an expert witness is to join the MLACP and go on relevant courses. Beyond that, she says: ‘Have oodles of energy and lots of time. Be very pedantic, check everything you do.

Don’t take too much on at once. And don’t overstretch yourself to start with – take on one case and see if you’re able to do it.’

For Ms Filson, the best part of being an expert witness physiotherapist is she is independent. Oh, and one other thing: ‘It keeps my brain alive,’ she says. What more could you ask from a job? FL

FURTHER INFO

To join the MLACP, contact MLACP secretary Judith Bentley at jbentley@standrew.co.uk

 www.mlacp.org.uk Pamplin C, White S. Getting Started as an Expert Witness (2008). JS Publications

What kind of case?

The number of physios working as expert witnesses is still small, and few of them appear in criminal cases: those in which the police prosecute and the defendant is accused of breaking the law. The case has to be proved beyond all reasonable doubt.

Most physios appear in civil cases: when one person has a grievance against another individual or organisation, and sues them for compensation. This includes claims of negligence, often against another physiotherapist. The case has to be proved more likely than not.

Physiotherapeutic expertise is most likely to be needed in cases of personal injury, usually a tussle between someone who has been injured and an insurance company contesting the amount of compensation it will have to pay. Physios may do cause-and-liability work, helping the court to decide who (if anyone) was to blame, or quantum work, helping to assess how much money is needed to compensate and for future care needs.

‘I like the cut and thrust of litigation’

‘Everyone I know who does expert witness work finds the legal side fascinating,’ says Josie Robinson, who sees expert witness work from both sides of the fence. A physiotherapist for 12 years, she then decided to retrain as a solicitor. ‘I wanted a complete change from such a physical job, to use more of my other skills.’

After a part-time conversion course, Ms Robinson started her second career seven years ago, though she stays active in the MLACP. She finds the law attracts people from many other professions – engineering, medicine and the City. Though there aren’t many physios-turned-lawyers, she has two former nurses among her colleagues: working in personal injury as they do, a medical background is useful.

‘I wasn’t using all my strengths before,’ she says. ‘I like writing, which I have to do a lot. And I like the cut and thrust of litigation.

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