Medical expert witnesses are key players in the administration of justice. The evidence of an expert is relied upon by both parties to narrow the issues being disputed in a case and informs the judge in reaching their decision. In medical negligence litigation, the Court is likely to hear expert evidence about the standard of care the claimant should have received, did receive, and the impact of this on their condition and prognosis.
“It may come as a surprise to learn that judges are not experienced in every area of the law! So, when a clinical negligence or personal injury case goes to Court, it is essential to have reliable, independent clinical experts who can explain to the judge exactly what the key medical issues in the case are, and to give their unbiased opinion regarding these issues,” says Caren Scott, Managing Director of Inspire MediLaw.
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Some medical professionals feel there is a stigma attached to participating in the litigation process; perhaps a fear that others will see them as being out to undermine the practice of colleagues. On the contrary, the role is crucial in determining the reasonable standard of care which should be afforded to patients. It is of value for the profession and the public to ensure that doctors guide the Courts in defining a reasonable standard of care, not just lawyers.
Clinical negligence litigation is utilised to compensate an individual, known as the claimant, who has suffered harm in the care of their medical provider. They may seek compensation for something that was ‘done’ to them, known as a negligent act, or for something that was not done, known as a negligent omission.
The harm suffered by the claimant must be quantifiable. Putting a value on the effect of negligence on an individual can be a complex process. The solicitors will instruct medical and other professionals to help them quantify various elements to the claim; the injury or loss itself and a range of associated costs. These may include costs of care and/or living aids that would not have otherwise been required, and past and predicted loss of earnings.
The medical expert plays a key role in establishing whether the individual, or their family, has a claim in negligence. Regardless of whether the expert is instructed by the claimant or the defendant, they are required to give an objective opinion. The expert’s evidence can result in the discontinuation of an investigation into alleged negligence, or it may provide the foundation for a successful claim, or for the successful defence of a claim.
A breach of duty expert should have proven clinical experience in the specific area of medicine being investigated, and should have been in practice at the time of the alleged negligence. They will set out the reasonable standard of care the claimant should have expected, given the circumstances, and comment on the care afforded to them.
Medical experts will be asked to comment on causation. This requires the expert to look at the failures in the care provided, the outcome for the patient, and discuss the relationship between the two.
The current condition of, and prognosis for, the claimant is a key element of the claim. Often the expert will be asked to assess the claimant, to review medical records and relevant witness statements, and provide a report on their current state of health, and the likely development of any conditions caused or affected by the alleged negligence. This forms the basis for further reports from allied health professionals and other experts, such as forensic accountants or employment experts, to build a picture of the financial impact the alleged negligence has had, and will have, for the claimant and/or their dependants.
“There’s a common myth that a good medicolegal expert should have a legal qualification,” adds Caren Scott from Inspire MediLaw. “This is absolutely not the case. Lawyers are primarily looking for someone with clinical expertise, and are not seeking legally qualified medical experts. The Court requires a medical expert to give their opinion first and foremost as an experienced clinician, regardless of legal experience.”
The role calls for a good eye for detail, a flair for reviewing and questioning evidence and relevant research, and the ability to form and communicate a reasoned opinion.
Specific legal tests must be applied when investigating breach of duty and causation. These should be set out in the letter of instruction from the solicitor, and the expert must know and apply the tests in their report. Expert witness training can help cement the expert’s understanding of these legal tests, and offers the opportunity to discuss the practical application of these tests with medical lawyers as well as fellow medicolegal experts.
Often the most daunting element of the process is being faced with the evidence of one’s opposing expert. It is crucial for the expert to remember that the Court is not necessarily persuaded by the eminence of the experts involved. What is far more important is the clarity, logic and persuasiveness of their opinions.
Medical experts will find that their opinion is tested and disputed during the litigation process, not just in the witness box, but from the early stages of an investigation when the legal team must build a robust case. The expert must be ready to respond to criticism, differing viewpoints, and detailed questioning. It is an intellectually challenging role, and this is a real attraction for many.
If you are thinking of venturing into medicolegal practice, it is helpful to talk it through with someone already in the role. They can offer a balanced view of what is really involved.
An obvious reason to take on this work is the remuneration. Medical experts are very well paid for their time and expertise, and rightly so. In return, though, they work hard! Considerable investment of time is needed to read through medical records and witness statements in order to become familiar with a case. The report writing process requires a methodical approach, and some time must be spent refining the report to ensure the terminology has been explained and the opinion is clear and well reasoned.
It has often been said that acting as a medicolegal expert witness brings a fresh perspective to one’s own clinical practice. Many experts comment that they have developed and improved their clinical practice as a result of something they have seen in, or learnt from, a case they have worked on.
Acting as a medical expert broadens a clinician’s understanding of the medicolegal processes intrinsically woven into the provision of healthcare. This is invaluable for senior clinicians, especially those involved in the investigation of SIs, complaints, and similar.
For many in the profession, the opportunity to utilise their years of expertise in order to secure justice for individuals and healthcare professionals alike is a significant attraction in itself.
If you want to become a Medical Expert Witness, have a look at our Medical Expert Witness Training and Conferences.
This article has also been published Independent Practitioner Today under ‘It’s not about undermining other doctors‘.