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The validation of symptoms in medico-legal practice is remarkably under-investigated. The reason for this is clear. Doctors and of course Lawyers and, dare I say it, even Judges believe everything they are told. Doctors do this because most of the time, patients come to see them in their consulting rooms with a problem and on the whole those patients have better things to do at nine o’clock on a Monday morning than wait half an hour in a consulting room to be seen. Lawyers believe everything they are told because that is their job to do so and likewise Judges believe everything that they read and hear because those symptoms as complained are stated under sworn statements or under oath in Court.
This extraordinary naivety in the current era of Internet literate people leads of course to some of the worst miscarriages of justice as exemplified by Ludovic Kennedy who has sadly recently died.
Just in the last week whilst writing this website article, there is the case of a woman who has deliberately created an ill child in order to gain hundreds of thousands of pounds worth of benefit, labelling the child over its young life as the “sickest child in Britain”. There is also the case of the individual who has faked probably hundreds of accidents in order to claim millions of pounds of compensation. He was only detected by chance and not by investigation and presumably the insurance companies, as also the Benefits Office in the former case, just believed everything they were told. These people are abusers. They are abusers of society as a whole like the mother was an abuser of her own child.
We are utterly dependent on what we are told. If a patient says that they have headaches every day of their life or if they spent the first three months after an accident lying in their bed doing nothing, then who are we as Doctors or Lawyers to doubt what they are saying. My thesis however is that if an individual says that they are so totally incapacitated, then it is very reasonable to examine their life in detail such as assessing bank statements and credit card usage to see if that kind of evidence validates what they say.
If for instance an individual says that they have done nothing for weeks after an accident and their credit cards reveal that their car has been filled repeatedly with petrol using their own personal credit card, then surely questions should be asked of the Claimant in order to explain this inconsistency.
To balance that comment, individuals can suffer severe daily headaches which are life-incapacitating and obviously such individuals have no fear whatsoever from the questioning approach.
Returning to Ludovic Kennedy who was more interested in the criminal system, I would agree that our legal system sadly lacks the inquisitorial approach, relying still on the adversarial style which will obviously lead to significant miscarriage of justice. When so much depends on the personalities rather than the truth, then the process must fail under some circumstances. Does this make me a defence-orientated expert? - not at all. My view is that Claimants deserve to get the right amount of compensation, neither too much for feigned or elaborated injury nor too little for significant brain or neural damage.