The role of an Expert witness
The role of a professional medical expert is to provide the court of law with an independent opinion on the clinical issues involved in a case to help the court make a decision on questions falling within expert’s expertise. Their role is to incorporate the facts, consider the questions asked of them, and express an opinion on the clinical issues based on their expertise, experience and qualifications.
An expert witness must have the relevant skills and knowledge, be up to date on guidance and protocols, and have current and extensive.
Expert witnesses may be asked to provide reports in a number of situations, such as personal injury claims, clinical negligence cases, forensic and criminal cases, and immigration and asylum seekers cases.
What are the legal duties of an expert witness
An expert witness has the paramount duty to the court to give independent evidence, uninfluenced by the pressures of litigation and over-riding any duties to the instructing solicitors. They must be familiar with part 35 of the Civil Procedure Rules and the Practice Direction, which provides guidance on the expert’s role and responsibilities, as well as the GMC’s guidance “Acting as an Expert Witness.”
An expert witness should bear in mind that the instructing solicitor has to comply with strict court deadlines to which the expert must adhere too. They should also be prepared to attend court and trial, for several days, and they should be prepared to make arrangements so that it will not have an impact on their clinical practice.
If an expert witness is requested to attend court, they must fulfil their duty and comply with the rules of the courtroom, whereby they may be asked to back up the opinion they gave in the report. Experts might have to pay for wasted costs if they disregard their duties. The judge will determine if an expert witness is guilty of this, and it could be based on whether they have written points that were one sided, not based on evidence, or inconsistent with the records.
If an expert think they may be unable to meet the obligations, they should inform the instructing solicitor so that they can decide whether to instruct another expert.
GMC requires an expert witness to be “honest, trustworthy, objective and impartial.” The GMC’s guidance says, “You must not allow your views about any individual’s age, colour, culture, disability, ethnic or national origin, gender, lifestyle, marital or parental status, race, religion or beliefs, sex, sexual orientation or social or economic status to prejudice the evidence or advice that you give.”
It is important to be professional and to maintain a good attitude, particularly under cross examination. A medical expert witness should remain alert to how upset, confused, or angry the patient’s family are, and treat family members with respect. They should understand that they will be making important judgments about people’s lives, so it has to be done in an appropriate, sensitive, and tactful way.
Expert’s views and conclusions may be challenged in the trials process, and they must be able to withstand a certain amount of attack. In the witness box, they could be confronted by new arguments and they will have to respond to the best of their knowledge. If their opinion changes during the course of a case they should tell the solicitor who instructed them before they reach the witness box.
How to write the report
When an expert accepts instructions, it is important to be sure that they are appropriately qualified, before accepting and proceeding with the case. It is also important to make sure that they will provide an opinion based on the balance of probabilities, and their expertise and experience. Another important aspect is to ensure that the expert does not have any conflicts of interest, such as knowing or having worked with any of the persons concerned.
The report should be written in a clear structured form, using terminology that can be easily understood by the instructors, and it is important to avoid misleading. Any conclusion should be based on evidence in the case, expert’s own specialist knowledge, and published references and guidelines. The expert must not deliberately leave out relevant information, and they should take reasonable steps to check the accuracy and completeness of all information before concluding and submitting the report.
As an expert you may need to examine and interview the patient to be able to provide an accurate report. You may also be asked to attend a meeting with the client, the solicitor, the counsel, and sometimes to give evidence in the Court.
Writing the report
For an expert it is important to make sure that they fully understand their instructions and the questions they are being asked to answer. If the instructions are unclear, ambiguous, inadequate, or conflicting, seek clarification from the instructing solicitor. If they are unable to obtain sufficiently clear instructions, they should decline to act as an expert.
Read all the documentation including medical records.
Identify missing material, as this may impact on expert’s opinion.
It is important to provide a realistic timescale for report preparation and keep to it. It is also important to inform the solicitors if extra time needed.
The report should be prepared in accordance with the instructing solicitor’s letter and should respond to specific questions in individual paragraphs.
It must be stated in a clear way whether everything written in the report represents expert’s opinion, or is based on facts, medical records, client’s statement, or the literature. The report must show balance and objectivity, and should provide full reasoning for the conclusions and opinions.
Things to avoid as a medical expert witness
An expert witness should avoid providing an opinion on an issue outside the area of their expertise.
Should not rely on anyone else’s summary of the medical records.
Should not give an opinion on which party’s evidence should be believed.
A medical expert witness should not accept instructions where they may have potential conflict of interest.