The potential consequences of working in heavy industry are not always the obvious personal injury and health & safety matters, but can also include conditions, such as that which our next expert witness deals with in the majority of his cases.
Here, Jack Lancer, an expert witness in ear, nose and throat surgery, talks to Lawyer Monthly about noise-induced hearing loss, the process of performing his medico-legal duties surrounding this condition, and the challenges he encounters in bringing these cases to a successful conclusion.
Jack has been a consultant ENT surgeon for over 25 years, working in Rotherham and Doncaster. He retired from the NHS in 2013 and now works in private practice and medico-legal practice. Jack’s further special interests are in rhinoplasty and otology.
What are the most common cases you deal with in regards to ear, nose & throat surgery instructions?
I deal with all ear, nose and throat related problems, but the overwhelming cases I deal with are related to noise-induced hearing loss. That forms over 90% of all ENT medico-legal work, and has been going on for over 25 years now. Anybody who has worked in a noisy industry, and thinks that may suffer from hearing loss as a result of that, makes a claim and begins the process thereon.
Cases are screened out by a solicitor, and take all the necessary details regarding ear protection for example. From the moment they realise they may be suffering from noise-induced hearing loss, clients have three years to make a claim, and if they don’t and are out of the limitation period, the case can’t go forward.
For the cases that do progress, an expert opinion will be required. As an expert I will carry out an interview, including the noting of work and activity history, and perform an examination with an audiologist carrying out a hearing test. Once that information has been compiled I review the medical records and prepare a review for the case, the conclusion of which gives a formulaic opinion on whether, based on the information given and from the examination, there is noise-induced hearing loss or not. The solicitor will then, if the report is favourable, take action alongside the client.
This process can take anywhere between six to 12 months before the case even comes to me with all the necessary information. Following my report, the timing until settlement of a case could be a further year, totalling up to two years for the entire case. Some slower cases could even take up to four years.
How difficult is it to produce a thorough analysis of a claim?
Before 2000, it was generally easier for cases to be successful. After this year, Professor Coles produced national guidelines that the court now relies on heavily. Since those guidelines, cases have been much more challenging to get through.
The thing about noise-induced hearing loss is that there isn’t a straight forward medical test like there is with for example with potential glandular fever, where a simple blood test would provide a conclusive decision as to whether a patient has the condition. The decision as to whether one has noise-induced hearing loss rests on the balance of probability, and having followed the process of review explained above, experts may offer differing opinions, because it can’t be proved, even at post-mortem.
As an expert witness in rhinoplasty and ear surgery, to what extent do you get to engage the full capacity of your expertise?
I also engage as an expert witness in medical-negligence and personal injury cases (the other 10% of my work). This involves clients who have been involved in accidents, who have had operations that have gone wrong, or who aren’t happy with the outcome, or ran into risks they were not informed of prior to the surgery. Having myself performed around 2500 ear operations and 2000 rhinoplasties, I am in a strong position to provide expert opinion on these matters.
Are there any UK medico-legal regulations that particularly challenge your expert witness work in this segment?
As is the norm in legislative development, courts pass judgements and said judgements are then used in subsequent cases. In a previous case in this sector, the judge established that having suffered from a hearing impairment as a result of one’s job, any reasonable man would have immediately sought advice from a doctor regarding the hearing loss, and followed through with a diagnosis. But in reality, many people who work in heavy industries and noisy environments as such, don’t go to their GP; they don’t want to take time off work, are afraid they could lose their job, and many would not go to a doctor even if they were at the point of dying. Many claimants, experts and solicitors now feel that this judgement went too far; as it expects that anyone with hearing loss would automatically visit their doctor straight away.
