An expert witness is qualified by their knowledge and experience to give an independent opinion on a specific issue in court.
Role of a medical expert witness
The medical expert offers an opinion on the facts of the case. This can be based on written notes and documents, or through an examination of the patient. The medical expert is not the treating doctor.
While their opinion is provided at the request of one or other of the parties involved in the claim, the duty of the medical expert witness is to assist the court rather than the party who instructs them.
The medical expert’s report or comments must be independent, objective and unbiased. The doctor’s expertise helps the court decide the matter before it, and may be used to diminish the other side’s case. It can lead to appearing as a witness in court and having the opinion tested by cross examination.
The role can vary from considering a breach of duty in a clinical negligence claim, offering opinions on liability and causation, to examining a claimant and discussing their treatment and what could be offered.
A medical expert witness should not be confused with a professional witness. The former provides an expert medical opinion on a case, whereas the latter is requested to testify solely on the observed facts of a case.
Who can be an expert witness?
Doctors put themselves forward as experts. Mail-shots can be sent to local law firms. It is also possible to advertise on the internet and/or in the legal press.
However, the most common way doctors promote their expertise is through registering with organisations that maintain expert witness databases. There are a number of them and they have varying degrees of rigour in determining eligibility for entry. None are endorsed by medical institutions:
How much does a medical expert witness get paid?
It varies. Research suggests that they range from £50 per hour up to £200 per hour. Fees are however under pressure.
Skills required of a medical expert witness
The most obvious is a sound knowledge and practical experience of the subject matter in dispute. Additional skills needed include an ability to communicate findings and opinions clearly, concisely and in terms adapted to the court or tribunal. Doctors are advised to seek training on report writing and courtroom presentation skills.
Understanding the responsibilities of being an expert witness
Doctors are advised to understand the duties of the role before putting themselves forward. A good understanding can be developed by attending a relevant, CPD-approved course. They should also consider organising a proper induction into expert witness work, particularly in those specialties frequently called on to assist the court.
The GMC’s guidance Good Medical Practice, which sets out the principles which underpin good care, includes information relevant to doctors working as expert witnesses.
Paragraph 51 states: “You must be honest and trustworthy when writing reports, completing or signing forms, or providing evidence in litigation or other formal inquiries. This means that you must take reasonable steps to verify any statement before you sign a document. You must not write or sign documents which are false or misleading because they omit relevant information. If you have agreed to prepare a report, complete or sign a document or provide evidence, you must do so without unreasonable delay.”
To meet these principles, medical expert witnesses should ensure that their statements, reports and verbal evidence are: straightforward, rather than intentionally misleading or biased; as objective as possible and not omitting material or information which does not support the opinion expressed or conclusions reached; and properly and fully researched.
Appointment process to being a medical expert witness
It is the court’s responsibility to decide whether a doctor is an ‘expert’. The court should examine the following issues in establishing the credibility of the medical expert: is the expert’s area of practice and expertise relevant? When did they last saw a relevant case in their practice? Is their view is widely held? Have they been trained as a medical expert? Are they up-to-date on CPD and in good standing with their royal college? Doctors should only put themselves forward if they are comfortable with the answers.
Questions to consider when taking a case as an expert witness?
1. What type of case is it?
2. On whose behalf are you being instructed?
3. What are the timescales involved, and how much time will be involved?
4. Has the fee scale been agreed?
5. Are you an expert in this area? Can you provide references that support your evidence?
6. What are the implications for you if the court does not accept your evidence?
Professional conduct issues
There are salutary lessons for all medical expert witnesses from the case of Professor Sir Roy Meadow. These particularly concern the provision of poor or misleading evidence, or evidence drawn from outside one’s expertise.
Paediatrician Sir Roy came to prominence for his research into Munchausen Syndrome by Proxy and his crusade against parents who harm their children.
He appeared as an expert witness for the prosecution in several child murder trials. Meadows was struck off by the GMC in 2005 after he was found to have offered “erroneous” and “misleading” evidence in the Sally Clark case. Clark was a lawyer wrongly convicted in 1999 of the murder of her two baby sons. At her trial, Sir Roy said the odds of two children from such an affluent family dying of natural causes were one in 73 million. His claim was later disputed by the Royal Statistical Society. Clark’s conviction was quashed in 2003.
Meadow appealed to the High Court, which ruled in his favour in 2006 by a majority decision. The Court of Appeal upheld the High Court decision in part, ruling that Meadow’s misconduct was not sufficiently serious to merit the punishment he received.
The Court of Appeal did, however, over turn the High Court’s finding that expert witnesses should ordinarily be immune from regulatory bodies disciplinary hearings. Expert witnesses continue to be immune from civil litigation in respect of the evidence they give.
In 2004, the Deputy Chief Justice was scathing about Munchausen Syndrome by Proxy in setting out the reasons for Angela Cannings’ appeal – another mother wrongfully convicted of murdering her child. It led to the overturning of a number of convictions. The law was changed so that no person can be convicted on the basis of expert testimony alone.
Messages for medical expert witnesses
1. Recognise the overriding duty to the court and to the administration of justice.
2. Give opinion and evidence within the limits of professional competence.
3. Keep up to date with your specialist area of practice.
4. Explain, where appropriate, that there are a range of views on a particular issue.
5. Take appropriate action if your opinion changes
Code of practice and directory in Scotland
Criminal procedure and court rules in Scotland