Acting as a medical expert witness

Being a recognised expert header

Medical expert witness reports are used to assist a court or tribunal to come to a decision. The reports can range from an assessment of current clinical condition and prognosis following injury in a road traffic or industrial accident, to an opinion on the apportionment of responsibility when more than one party has contributed to clinical negligence, and/or the amount of compensation a victim of negligence should receive. Occasionally, an expert witness report is required in criminal proceedings.

The role

A court, tribunal or committee may require the opinion of an impartial expert witness experienced in the relevant specialty to assist them in making a decision about a case. As a consultant, you may feel that you have sufficient skills to become an expert witness and here, we outline the expert's role and duties.


Who is an expert witness?

Expert witnesses are practitioners with sufficient experience in their field to be able to give a reliable and informed opinion about specific issues in a case. 

An expert witness differs from a witness of fact (also known as a professional witness) in several important respects. 

  • The witness of fact has usually already seen the patient for clinical purposes, whereas an expert witness is normally first approached by a solicitor or claims handler when a patient initiates legal proceedings.
  • A witness of fact is normally not in a position to decline to provide a report for the court because they are a witness of fact. On the other hand, an expert witness may decline to act at the outset.
  • An expert witness must provide an entirely independent opinion on the case in question.
  • Witnesses of fact are normally paid a fixed fee, whereas expert witnesses may be able to negotiate a fee. (A solicitor will normally agree with the expert in advance what the general scale of the fee might be).
  • The expert witness may be expected to attend a trial or hearing and listen to evidence given by other witnesses before giving evidence themselves. The witness of fact will almost always be precluded by the court or tribunal from listening to evidence given by others in advance of giving their own evidence.
This list of differences is not exhaustive and sometimes the roles of the expert witness and witness of fact overlap.


How does a doctor become an expert witness?

A good expert witness combines training, skill and experience. If you have at least 10-15 years' experience in your specialty, you may have the necessary background knowledge and could reasonably propose yourself as a potential expert witness. You would need to compile a CV detailing your general and specific medical experience, including any teaching posts, publications and lectureships. 

A number of bodies, such as the Expert Witness Institute, produce directories of experts in the UK. These provide the details of the expert and how they can be contacted and may list any high-profile cases in which they have been involved. 

Many doctors who intend to become expert witnesses attend courses run by companies that specialise in training experts in report writing, the legal process generally and court appearances in particular. Once an expert is known and respected in their field, they may expect to receive regular instructions from solicitors and others.


The duties of an expert witnesss

GMC guidance on acting as an expert witness

The GMC publication Acting as a witness in legal proceedings (2013) sets out guidance for witnesses, expanding on the core principles set out in Good medical practice (2013). All expert medical witnesses must be familiar with these publications. 

The GMC makes clear that doctors who act as an expert witness must ensure that the instructions they are given are clear and unambiguous and that they restrict any statements to areas where they have relevant knowledge or direct experience and which fall within the limits of their professional competence. 

The expert witness is expected to include all relevant information and give a balanced opinion. However, if there is not enough information to reach a conclusion on a particular point, this must be made clear. 

Other key points of the GMC guidance are as follows. 

  • Both the expert witness and the witness of fact, owe a duty to the court and this overrides any obligation to the person who instructs them or pays their fee.
  • If the expert witness's views change on a material matter, he or she has a duty to ensure that appropriate people are made aware of this without delay. 
  • The expert witness should not disclose confidential information without patient consent, other than to parties to the proceedings. The exceptions are where you are obliged to do so by law, or ordered by the court or tribunal or the administration of justice demands it. 
  • The appropriate people must be made aware of any potential conflicts of interest you may have without delay. 

The GMC makes clear that doctors who act as an expert witness must ensure that they restrict any statements to areas where they have relevant knowledge. 

Civil litigation

In order for a clinical negligence claim to be successful, the claimant must prove that there was breach of duty by a medical practitioner, and that this breach caused injury to the claimant. Expert witnesses are required to provide an opinion and assist the court in establishing whether there is any basis on which to bring a claim. 

An expert witness must be familiar with Part 35 of the Civil Procedure Rules. These rules stipulate that experts must be independent and that they must write their report for the benefit of the court, not for the party requesting it. 

Failure to observe the spirit of the rules may leave an expert vulnerable to criticism, and may reduce the credibility of their evidence. 

Once instructed to advise in a civil case, an expert's duties can include the following:

  • clinically examining the patient 
  • writing reports with reference to the available evidence, which may be drawn from the medical records, witness statements and medical literature
  • meeting with other experts to identify areas of agreement and disagreement
  • attending court, tribunal or a regulatory hearing to give oral testimony about their chosen field in the context of the case.

Report writing

Report writing is the key starting point of an expert's involvement in any case. Once the expert witness has considered the documents made available and/or examined the patient, they will draft a report, which must express an independent opinion about the medical issues. The expert should take into account other possible views and provide a range of opinions, where relevant. 

At the end of the report the expert is required to sign a declaration confirming that they understand their duty to the court and that they have complied with that duty. 

Literature search

This is an integral part of writing a robust and comprehensive report. The expert witness will cite references from guidelines, peer-reviewed journals or textbooks in support of their opinion. Where there are no publications to support their opinion, the expert should declare this. In order to provide a balanced report, it is often helpful to refer to literature that would support a different opinion, and the expert should explain why their interpretation leads them to advance their particular opinion. 

Case conferences

Discussing reports, and the case generally, with lawyers and others involved provides an opportunity for identifying any weaknesses in a case and uncovering other medical issues. Therefore, the expert witness plays an important role, as the lawyers will base their decision on how to proceed largely on the expert's advice. 

Attending court

The expert must be able to answer, competently and credibly, the other party's questions during cross-examination.

The overwhelming majority of civil claims do not proceed all the way to trial. However, should an expert be required to give evidence in court, they must be familiar with all the evidence relied upon by the judge, which not only includes their own report, but also reports from the other expert witnesses. The expert must be able to answer, competently and credibly, the other party's questions during cross-examination. 

Sometimes experts revise their position under cross-examination, which can undermine their credibility. Those who provide a well-reasoned opinion, have considered alternative views but nonetheless stand by their opinions will do well in court.

Expert's liability

Experts may be sued in their own right, either for negligence or breach of contract in relation to the production of their report or conduct at an expert's meeting. Therefore, it is essential that experts are adequately indemnified for their medico-legal work. The MDU advises that all members should keep the membership team updated of their working circumstances.

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This guidance was correct at publication . It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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