Compensation for bodily injury,
the role of medical expertise
Medical expertise plays an important role in the bodily injury compensation process; particularly in French law.
Indeed, the judge – or the insurer, if the file is managed amicably – is not omniscient, and therefore needs to be informed about the medical situation of the victim whose fair compensation he must assess. It is therefore necessary to use a qualified person to provide information in this regard.
This is the role of the medical expert. He will write a report after examining the victim and taking note of his medical file and his complaints. Contrary to what is the case in other systems, in particular those Anglo-Saxon, French law gives pride of place to unique expertise.
This means that we will try – as much as possible – to have in the file only an authentic expert report, possibly established in a contradictory manner between the parties.
This propensity to favor single expertise reflects the practice of French courts, which have the possibility of appointing an expert to provide technical information. This recourse to judicial expertise is particularly frequent when it comes to assessing bodily injury.
That said, even if the file is managed amicably, the parties have the possibility of agreeing on a contradictory amicable expertise, the probative value of which will potentially be the same as a judicial expertise.
This use of a single expertise is preferred in French law, and has the significant advantage of allowing the judge not to have to arbitrate between two or more divergent expertises.
In addition, the expertise will replace the appearance in person of the victim in the context of the trial. Indeed, in French law, the parties generally do not appear in person at the hearing (at least not in civil matters), so that the judge cannot form his own idea of the extent of the damage suffered by the victim. The elements contained in the expert report will prove useful in this regard.
A description of the victim's medical condition
Of course, the first purpose of medical expertise is to describe the state of health of the victim. It sounds simple, but it is actually a perilous and delicate exercise in many situations.
In general, it should be remembered that it will be up to the victim to document his medical file – possibly by means of diagnostic examinations carried out before the expertise – in order to bring out all the sequelae of the accident.
The expert should be given all the elements enabling him to avoid any sequelae on any organ of the body affected by the accident. As such, the assistance of a medical advisor will prove invaluable in most situations.
If orthopedic sequelae are generally detectable with X-rays and a brief clinical examination, it is different for sequelae of the cardiorespiratory system, or the neurological system.
In the event of head trauma, for example, it will very often be essential to have a neuropsychological assessment and/or other clinical examinations carried out before the expertise, in order to enlighten the expert on the existence of sequelae that his only clinical examination cannot detect.
If in doubt about the ability of a given expert to assess all the after-effects suffered by a victim, do not hesitate to request that the expert enlist the assistance of a sapiteur in a particular specialty.
Description of the consequences of the accident: complaints
The expert report also includes a section describing the repercussions of the accident for the victim. In particular, the expert has the obligation to note in full the complaints of the victim.
This is of great practical importance for the victim, since the expertise is in principle the only time when he can express himself personally on the impact of the accident. So don’t forget anything.
Once again, the assistance of a medical advisor and/or a lawyer specializing in personal injury, during the expertise will prove useful, and sometimes even essential.
An expert report on a traumatized head victim, for example, must imperatively be able to bring out all the daily difficulties of the victim, without this always being spontaneous.
You have to know how to highlight the difficulties, by asking the right questions to the victim, or if the victim is unable to provide a complete answer, do not hesitate to ask those around you.
Experience teaches us to have a certain mistrust of the complete nature of the investigation that will be carried out by the experts commissioned by the insurers.
Conclusions: rating of the various damages
At the end of the medico-legal discussion, the expert makes technical conclusions, i.e. he “rates” the various damage items that appear to him to be characterized. Each of the damage items will be individualized and quantified, using medico-legal scales.
The expert will thus determine, for example, a rate of permanent functional impairment depending on the severity of the sequelae observed.
He will then assess the degree of suffering endured, in relation to purely objective criteria.
All damages will thus be “objectivized”, that is to say compared to other similar situations.
The work of the lawyer, and possibly the judge, will be to translate this objectification of the damage into fair compensation for the victim.
Previous state: pitfalls to avoid
Among the main potential stumbling blocks in the context of medical expertise is that of the impact of a possible previous (pathological) state in the quantification of harm. For example, a victim fracturing a limb that had been fractured in the past.
The difficulty will then arise in knowing how to determine the part of the sequelae that are linked to the accident in question, by dissociating them from any sequelae that already existed previously.
This is certainly a medical question, but also a legal one, since it raises the question of who must provide proof of the existence or not of previous sequelae, and who benefits from the doubt, in the event of absence. items in the medical record.
These questions are of particular importance when it comes to head trauma suffered in a young child. Indeed, it is not uncommon for an insurer to try to justify a reduction in the sequelae of such a trauma by referring to so-called behavioral anomalies, not hesitating to exploit the slightest negative comment on a school report , or the slightest consultation with a child psychiatrist.
Adequate preparation for the expertise will reduce the risk of deviations related to these questions relating to previous statements.
Limits of medical expertise: the
example of professional injury and third-party needs assessment
The expert cannot replace the judge. He gives an opinion on medical issues, and there his role is limited.
However, certain items of damage, the assessment of which is part of the expert’s mission, have a dual medical and legal aspect.
This is particularly the case for professional harm (loss of future professional earnings and professional impact) and assistance by a third party.
The expert’s opinion on these issues should certainly not be considered binding on the parties, who retain their ability to discuss freely either among themselves in an amicable setting or before the judge.
It is not uncommon in practice to obtain compensation for these two items of damage on different bases from those retained by an expert, even a legal expert.
In the presence of a difference of position between the parties intervening in the expertise, do not hesitate to remind the expert that he does not necessarily have to decide the question from a factual point of view. For example, give precisely the number of third-party hours required. But that he can describe the medical parameters that will allow the parties to discuss the matter before the judge.
Obviously, the opinion of an expert doctor on the time necessary for a normal person to shop or prepare his meals cannot prevail over the opinion of the other actors involved in the compensation process.
The intervention of an expert occupational therapist may – in certain situations – prove necessary in order to assess the need for human assistance as accurately as possible.