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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.
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.
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.
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 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.
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.
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:
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.
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.
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.
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.
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.
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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