Where you suspect that something went wrong during medical treatment, an expert examination can help to obtain clarity. An expert examination in medical liability cases can in such a case determine whether there is a medical error and whether that error led to your loss. An expert examination in medical liability cases therefore plays a central role in medical liability cases.
In this article we explain what an expert examination in medical liability cases involves exactly, how the process runs and what you as a patient should watch out for.
What does an expert examination in medical liability cases mean?
What is an expert examination?
An expert examination is an independent medical examination carried out by a specialist who was not involved in the treatment. The purpose of an expert examination in medical liability cases is to assess — on the basis of the medical data and sometimes a physical examination — whether the doctor or care provider acted in accordance with the professional standard.
Such an examination can be carried out:
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on the instructions of the insurer, where there is doubt about liability;
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on the instructions of the victim’s lawyer, in support of the claim;
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or by the court, where the parties cannot agree about the medical facts.
When is an expert examination used?
An expert examination in medical liability cases is important above all where:
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there is a dispute about what exactly happened;
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the question arises whether the injury is a complication or an avoidable error;
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the consequences of the injury are long-term or permanent;
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or there is uncertainty about the recovery and the limitations.
In many cases the expert report from the expert examination in medical liability cases forms the decisive factor in establishing liability.
Also read our article Medical error or complication: what is the difference and when is the doctor liable? for a better understanding of that distinction.
Who chooses the expert?
The expert is chosen in consultation between the parties. In many cases both parties propose a list of possible specialists, after which one is chosen jointly. If the parties cannot agree between themselves, the court can appoint an expert from the official register of court experts (NRGD). In a court-ordered examination the appointment of an expert is central to the process of the expert examination in medical liability cases.
Important: the expert must be fully independent. That means that he or she may have no interest whatever in the outcome of the examination.
How does an expert examination proceed?
The process of an expert examination in medical liability cases usually runs in several phases:
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Preliminary examination and terms of reference
First the relevant medical files are gathered. The questions for the examination are then formulated — usually in consultation between the lawyers and the expert. Those questions concern for instance:-
What was the diagnosis and the treatment?
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Was there conduct in accordance with the applicable guidelines?
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Could the injury have been prevented?
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What are the consequences for the patient’s health?
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Inspection and response
Both parties are given sight of the terms of reference and can submit comments. Only after that does the expert begin work. -
Examination by the expert
The expert studies the file, carries out a physical examination if applicable and draws up a provisional report. -
Round of comments
The parties may respond to this draft report (the so-called statement of views). The expert incorporates those responses into the final report. -
Final report
The final report is issued to both parties — or to the court, where it is a court-ordered examination.
How independent is an expert examination?
An expert examination in medical liability cases must be objective. The expert is obliged to work in accordance with the Guidance for experts in civil cases, which provides that:
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the expert must treat both parties equally;
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must be transparent about the information and examination methods used;
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and must always give reasons for how they reach their conclusions.
Where there is doubt about an expert’s impartiality, your lawyer can object to that or apply for a counter-expert examination. An expert examination in medical liability cases nevertheless remains the most important instrument for establishing medical facts and standards.
What if you disagree with the outcome?
If you disagree with the report from the expert examination in medical liability cases, there are various possibilities:
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you can have written comments given by your own medical adviser;
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you can have a counter-expert examination carried out by another expert;
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or, in a court-ordered examination, your lawyer can ask the court to appoint a second expert.
A well-substantiated response can considerably influence the value of the report, certainly where it turns out that the first expert overlooked particular aspects.
The cost of an expert examination
The cost of an expert examination in medical liability cases differs from case to case and is often advanced by one party. In a court-ordered examination the court determines who pays the costs. In most cases the costs are ultimately recovered from the liable party, certainly where the error has been established.
At Arslan Advocaten we make sure that clients do not have to bear these costs themselves.
The role of your lawyer
An expert examination in medical liability cases is complex both legally and medically. Your lawyer therefore plays an important role:
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he makes sure the right questions are put to the expert;
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he checks whether the examination proceeds according to the rules;
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and together with the medical adviser he assesses whether the report is complete and logically structured.
An experienced personal injury or medical liability lawyer knows exactly where the pitfalls are — and how you can protect yourself against them during the expert examination in medical liability cases.
You can read more about the cooperation between doctors and lawyers in Medical advice in personal injury cases: what exactly does a medical adviser do?.
Why Arslan Advocaten?
At Arslan Advocaten we guide clients through every phase of the expert examination in medical liability cases. We make sure that you go into the examination well prepared, that your interests are protected and that the report is used correctly in claiming compensation. Our services are free of charge for victims, because we recover our costs from the liable party.
Related legal services
An expert examination is often crucial in medical liability cases in order to establish whether a treating practitioner breached the standard of care and whether loss arose as a result. Because liability in medical cases is rarely established straight away, thorough preparation and legal guidance are essential.
Frequently asked questions about the medical expert examination
- Who pays the cost of the expert examination in advance?
- In principle the claimant or the insurer advances the expert’s costs. Where the medical error and liability are established afterwards, these costs fall within the reasonable costs of establishing liability and loss (under article 6:96 of the Dutch Civil Code) and can be recovered from the liable party.
- What is the limitation period in medical liability cases?
- Under article 3:310 of the Civil Code a claim for compensation becomes time-barred on the expiry of five years after the start of the day following the one on which the victim becomes aware of both the loss and the person liable for it (the subjective period). For personal injury or death, article 3:310(5) of the Dutch Civil Code provides that no absolute twenty-year period applies: it was abolished for these cases on 1 February 2004. The twenty-year period can still apply only if the event causing the damage occurred before 1 February 2004 (transitional law: article 119c of the Transitional Act for the new Civil Code). For damage that is not personal injury or death, such as property damage, the absolute twenty-year period does still apply.
- How is medical causation demonstrated?
- The victim must prove that there is a causal connection between the medical act and the loss sustained. The expert tests whether the treating practitioner acted in accordance with the professional standard (the test of the reasonably acting and reasonably competent professional colleague).
This information is general in nature. The outcome depends on the concrete facts, the evidence and the applicable rules.