In the first of our two-part series, we take a look at the
role of medical expert witnesses, required specialised knowledge and legal responsibilities.
Providing expert evidence in any legal proceeding is a professional
privilege. Doctors can play an important role as expert witnesses in helping
courts, tribunals or other dispute resolution processes make informed, fair
decisions on cases involving clinical issues. A dearth of expert witnesses in
Australia, means doctors who are able to provide impartial and credible expert
opinions are in demand.
there’s a difference
There are different types of expert witnesses. These include
evidence sought as a witness of fact (the treating doctor) or as a witness of
opinion (the independent expert witness). Sometimes a doctor may be asked to fulfil
both roles, for example, to describe a bruise seen as a treating doctor
(factual evidence), and then be asked for an opinion as to the time the bruise
may have been present (expert evidence).
The capacity in which you are asked for an opinion may not
always be clear from a solicitor’s letter. Look for any references to the
court’s ‘Expert Witness Code of Conduct’ as this may be an indication that you
are being asked to provide evidence or a report as an expert as opposed to a
treating doctor or a witness of fact.
When are expert
When it comes to courts and disciplinary matters, expert
witnesses are usually called upon to give evidence in three situations:
1.In a civil case an expert witness will be asked
to give their opinion about whether the doctor acted in accordance with the
accepted standard of care with knowledge that was available to the doctor at
the time, or whether any departure from the standard of care led to the harm
2.In cases where a doctor faces a disciplinary
body, the expert witness will be asked to give their opinion about whether the
doctor has acted either below or in line with the peer standard for their level
3.Less frequently, an expert may be engaged during
a coronial inquest to assist the coroner to decide on the cause of death, and
what role any individual or institution may have played in that death.
role of legal proof
An important part of being an effective expert witness is
understanding the difference between scientific proof and legal proof. In any
legal proceedings, the court must make a decision which is based on the facts
and opinions before it. Courts cannot sit on the fence, and court decisions
need not be based on scientific certainty. Doctors are trained to apply scientific
certainty as the standard of proof. In comparison, legal proof is based on the
balance of probabilities (more likely than not) in civil cases, and beyond
reasonable doubt in criminal matters. The courts themselves have recognised
that the disciplines do not always share the same approach. One judge described
it as ‘law marching with medicine, but in the rear and limping a little.’
What does it take to
be an expert witness?
The expert’s role
An expert witness must have specialised knowledge and skills
based on their training, study or experience that is relevant to the matter at
hand. Expert witnesses are also required to demonstrate to the court that their
opinion expressed in evidence “is wholly or substantially based on that
Legal obligations and
Doctors acting as expert witnesses have an important duty in
the legal system. It is not up to the expert witness to decide on the facts, as
in what and how something happened. Neither is it up to the expert witness to
decide on whether a doctor or party is ‘negligent’.
Most state and territories have an Expert Witness Code of Conduct
or guidelines, which outline the requirements for expert evidence. It is
important to obtain a copy of the relevant code when preparing a report.
In summary, expert witnesses should3:
- Provide independent evidence to the court which
is not influenced in terms of its form or content by the rigours of litigation.
- Assist the court by giving an objective and unbiased
opinion in relation to matters within their expertise.
- Never assume the role of an advocate.
- State the facts or assumption upon which their opinion
is based and not omit to consider material facts which could detract from their
- Make it clear when a particular question or
issue falls outside his expertise.
- State their opinion is no more than a
provisional one, if they consider that there is insufficient data available to
form an educated opinion. In cases where an expert witness has prepared a
report but cannot assert that the report contained the truth, the whole truth
and nothing but the truth without some qualification, this needs to be stated
in the report.
- Communicate if they have changed their view on a
material matter, for example, after reading the other side’s expert’s report.
This should be communicated through legal representatives to the other side
without delay and when appropriate, to the court.
Experts also represent their professional colleagues in
defining the acceptable standard of care. Therefore, it’s important that the expert
correctly understands the range of acceptable practice and recognises that
although they might have taken a different approach, this should not influence whether
the practice was in accordance with the appropriate legal duty of care.
Making the time
If you are considering becoming an expert witness, it’s also
important to have enough time to fulfil your duties. Thinking you can read a
brief and provide an opinion in your ‘spare time’ may be overly optimistic, however
these tips should help:
- Medico-legal reports take time and they should
not be rushed
- Devote a portion of your working week to carrying
out work as an expert witness
- Do not take shortcuts
- If you do not have the time to perform the work
in the agreed time frame, say so. The legal team may be able to
ask for more time.
Breadth of expertise
Should you decide to become an expert witness, it’s also a good
idea to perform work for both ‘sides’ –
in civil cases, for the plaintiff and defendant, and in disciplinary matters
for the regulator and the defence team – to gain a breadth of experience.
The Whole Truth Handbook: responsibilities
when providing evidence can assist doctors in giving evidence in court.
Complete the course material
and receive a certificate of completion and CPD points.
Download the AMA’s Ethical Guidelines for Doctors acting as
Medical Witnesses 2011. Revised 2016.
Look out for part two
in our series on expert witnesses in your July Avant Newsletter. Part two will look
at the medico-legal implications of being an expert witness including key tips
and traps and an illustrative case.
1 Mt Isa Mines
Ltd v Pusey (1975) 125 CLR 283 at 395
Pty Limited v Hawchar  HCA 21
Keogh (2008) SASC 156.
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