Screening Preliminary Opinions for Merits Assessments

The Role of Preliminary Paediatric Screening

A screening preliminary opinion serves as an early, evidence-based assessment of whether a potential clinical negligence claim is viable. Instructing solicitors often seek a proportionate method to evaluate the strength of a claim before commissioning comprehensive expert reports. An initial screen allows a specialist to identify whether the documented clinical care deviated from acceptable standards and whether such a deviation could plausibly be linked to the patient’s outcome on the balance of probabilities. Such reports are prepared in accordance with the expert’s duty of independence to the court under CPR 35.3.

Essential Records for Early Assessment

A screening assessment is dependent on the quality and completeness of the provided materials. To achieve a meaningful evaluation of claim viability, solicitors should collate the key medical records pertinent to the specific paediatric discipline involved. For birth injury cases, this typically includes neonatal charts, Apgar scores, cord gases, and maternal intrapartum records. For general paediatric or neurodevelopmental cases, correspondence between primary and secondary care, imaging reports, and multi-disciplinary team notes are necessary. Providing these documents in a structured chronology assists the expert in efficient triage.

Defining the Scope of Opinion

The screening report should be confined to specific, manageable questions agreed upon at the outset. Rather than seeking a definitive causation ruling, instructions might focus on whether there is evidence of a recognisable injury, whether the clinical records demonstrate an identifiable event, and if there is a realistic argument that an alternative outcome might have been achieved with different care. This limitation ensures the exercise remains proportionate under CPR 35.1. Experts must delineate between proven facts from the medical records and the clinical inferences they are invited to draw.

The Distinction Between Clinical Findings and Legal Causation

It is important to distinguish between a medical finding and a legal finding. An adverse outcome does not, in itself, establish negligence. A preliminary screening report should address whether the clinical care provided was reasonable based on the information available to the clinician at the time, avoiding the benefit of hindsight. Where clinical data are ambiguous, the expert should clearly state the limitation, noting where further investigation or additional specialist records—such as neuroradiology or perinatal review—are required to reach a firmer opinion.

Addressing Alternative Explanations

A high-quality screening report considers potential alternative explanations for the clinical presentation. In cases of alleged birth injury, this may involve distinguishing between hypoxia attributable to intrapartum events and injuries resulting from pre-existing genetic or metabolic conditions. Similarly, in suspected non-accidental injury, the expert must objectively weigh clinical findings against differential diagnoses. Instructing solicitors are encouraged to invite the expert to comment on the plausibility of these alternatives, as this is essential for assessing the overall merits of the claim.

Practical Considerations for Instructions

When instructing a paediatric expert for a preliminary opinion, consider the following checklist to ensure the report provides maximum utility:

• Ensure the expert’s CV aligns with the specific discipline required (e.g., neonatal vs. paediatric neurology).
• Define the scope clearly: clarify if this is a ‘paper-only’ screen or if an examination of the child is required.
• Provide a comprehensive clinical chronology, noting any missing records or gaps in the timeline.
• Request the expert to identify which clinical records are missing or require clarification from the relevant Trust.
• Ask for an overview of the key causation hurdles likely to be encountered should the case proceed.
• Clearly distinguish between matters of clinical fact and the expert’s preliminary interpretive opinion.

If the preliminary screening indicates potential merit, the focus may shift to more detailed investigation. If court proceedings have commenced, the court may direct an expert discussion under CPR 35.12, where two or more experts consider their respective positions. However, the screening phase remains an independent exercise focused on merits. In cases where a Single Joint Expert is appointed, their instructions are governed by CPR 35.8, and the expert remains bound by their duty to the court to provide an objective opinion regardless of the source of instruction.