Medical report writing series - by Dr John Wilson

Part 2 - The Ikarian Reefer Code

This article is mostly about a devious shipwreck, but before dealing with that, I need to explain how the claims process works. Certainly that is for the cases you and I deal with, and I suspect that the same principles also apply with claims over shipwrecks.

There are three levels in a claim process.

Level one is the claims administrator. The claims administrator gathers the information and has the power to decide whether or not the claim should be accepted. Within an organization there will be a hierarchy of claims administrators, with the lowest rung attending to claims relating to lacerated fingers and lost surf-boards. The higher echelons may settle on sciatica and sunken ski-boats. Most claims are settled on the basis of a decision made by the claim administrator.

Level two involves the lawyers, who get to haggle over the claims that cannot be resolved at the claim administration level. Lawyers cost money, and are unlikely to get caught up in claims for sore toes and broken masts. Most of these cases settle out of court.

Level three involves the Courts. Typically the Courts will deal with oil-tanker collisions, but they may also deal with sore fingers in a concert pianist.

When you are asked to provide a medical report, it is because someone, whether it be at the individual claims administration level, or at the organisational (company) level, is not prepared to accept, on face value, what the claimant (your patient) has said. In practical terms they are thowing it back to the claimant to “convince us”.

Somewhere in your patient’s tale of woes, you have been involved, and like it or not you are drawn into that process of “convincing”. If your patient has opted you in, you have few options of “opting out” (being retired from active practice and no longer registered is the most likely “out”, but may not be enough to keep you from being required to attend court.)

And you have no way of knowing whether the claim will settle at level one or two, or whether it will go all the way to the Courts. Therefore the report that you write needs to be written in such a way that, should you be required to defend it in court, it will stand up.

The Ikarian Reefer was a cargo ship built in 1968. During its career it had a few different names and owners. Its last owner was a “one-ship company”, the principals being Greek brothers Constantine and Anthony Comninos⁽¹⁾.

In nautical terminology a reefer is a refrigerated cargo ship.

In 1985 the Panamanian registered Ikarian Reefer ran aground off Seirra Leone, and subsequently caught fire. The insurers suspected arson, the outcome of which was a trial in the English High Court in 1993. It was alleged that the ship was scuttled on the owners’ instructions.⁽²⁾

It is appropriate at this point to dwell on the difference between English law and European courts on the matter of independent experts. European courts have an inquisitorial power to seek opinion independent of the disputing parties, whereas the English court system has long been constrained by a process where the opposing sides select and instruct the experts that appear in court.

The two sides in the Ikarian Reefer case assembled eight experts⁽³⁾. The trial judge, Mr Justice Creswell viewed most of the evidence as biased. The courts had had enough, and what followed has been called the Ikarian Reefer Guidelines for expert witnesses.

The following is an abridged version of the code.⁽⁴⁾

Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced, as to form or content, by the exigencies of litigation.
An expert witness should provide independent assistance to the court by way of objective unbiased opinion within his expertise. An expert witness should never assume the role of an advocate.
An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
An expert witness should make it clear when a particular question falls outside his expertise.
If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness has prepared a report and could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that truth should be stated in the report.
If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert report, or for any other reason, such change of view should be communicated to the other side without delay, and when appropriate to the court.
Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.

So, you say, what has this got to do with medical reports?

Firstly, you are regarded as an expert witness as your medical report offers opinion.

Secondly, should you be required to attend court, it will be to defend your report. (More about going to court in a future article). If your report does not acknowledge the above rules of court it may not be admissible.

The various State judiciaries have created their own codes. New South Wales has the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedures Rules, 2005. South Australia has rule 160 and Practice Direction 5.4 of the Supreme Court. Curiously, the Commonwealth Courts have not created their own code.

Normally the letter of request will enclose a copy of relevant rule or code, and ask you to acknowledge that you have abided by that code in preparing your report.

In a nutshell. Pour yourself a glass of riesling, sit down and quietly digest the seven points of the code. Then get out the last couple of reports that you have written, and run the “ruler” over them. My guess is that you will then realise why I am writing this series, and you need to be reading it.

In the next issue I will give you the inside on “licensed enquiry agents” who occasionally lurk outside doctor’s rooms with miniature cameras, and what to do when one of their movie-shows turns up in your mail box.

Lloyd’s Law Reports, The “Ikarian Reefer” (No 2) (2000) Vol. 1 p129.
Editorial, Roles and responsibilities of medical expert witnesses, BMJ, Vol. 331, 6 August 2005.
www.jspubs.com/experts/ewire/itemtext.cfm?ewid=64 Experts across Europe.
The Hon Justice H. D. Sperling, Supreme Court of NSW, Expert Evidence: The Problem of Bias and Other Things.1999. Lawlink, NSW.

Medical report writing series - by Dr John Wilson

Part 2 - The Ikarian Reefer Code

Other articles in the Medical report writing series: