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Georgina Parkin is the Managing Director and a co-owner of Truth Legal solicitors, based in Harrogate and Leeds. Georgina has over 12 years’ experience in personal injury litigation, and leads the SpecialistInfo Personal injury CPD courses for expert witnesses.
Whether you are just starting out as an expert witness, or you are a veteran report-writer with hundreds of cases under your belt, it is always good to have the fundamentals of medico-legal work firmly in mind. The tips that follow touch upon a number of these key concepts and will hopefully give you some food for thought.
Your role as an expert witness is to assist the court in arriving at a just decision. Whilst ‘the court’ here can be something of an abstract idea – particularly as personal injury cases often settle before any actual court gets involved – this key duty remains. You must remain impartial, and you must provide your opinion honestly and in good faith.
In most cases, you will be instructed by one of the parties in a case. However, you should never see yourself as being ‘on their side’. There can be serious consequences if, as an expert, you attempt to act as an advocate for one side or the other. And worse still if you should allow your medical opinion to be influenced or altered by your instructing solicitors. A good rule of thumb, when preparing your report, is to ask yourself whether you would be willing to express the same opinion if you had been instructed by the other side.
For the full implications of your duty to the court, read Part 35 of the Civil Procedure Rules and its accompanying Practice Direction. These can be found at:
(https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35).
This might sound obvious but overlooking significant evidence can be a major pitfall for the unwary expert – especially when faced with voluminous records and limited time.
Taking the appropriate time to thoroughly consider all evidence will improve the accuracy of your report and the strength of your opinion.
Whilst confidence in your professional opinion is important, failing to consider new evidence with an open mind can lead to problems. For example, if the matter proceeds to court and you are unable to support your position, the credibility of your evidence may be undermined. A court may also conclude that an expert with an unreasonably entrenched opinion is not fulfilling their duties as an expert witness.
It is far better to re-evaluate your opinion when receiving fresh information. If your opinion remains unchanged, you should explain your reasoning.
As a medical expert, you will be called upon frequently to give opinions on the claimant’s injuries and the extent to which they are attributable to the incident in question. Appreciating the legal context means, in part, recognising just how important your opinion can be to a lawyer’s assessment of the case at hand. It can determine the claim’s value and often whether the claim is even viable.
The best medico-legal reports will be written with the legal context in mind and provide opinions (where possible) in recognition of it. If a claimant has mentioned some loss – such as lost wages due to time off work – or another effect upon on their life following the incident, can you give an opinion on whether this is attributable to the incident? If so, is the full extent of it attributable, or only a certain period? If not, what would you attribute it to instead? Also, whilst you are not expected to be an expert in law, an understanding of relevant legal tests and standards can help you to frame and express your medical opinions effectively. For example, claimants are required to prove the elements of their case to a standard known as ‘the balance of probabilities’ – i.e. that something is more likely than not – and you can adopt this wording. Similarly, you might use the wording of the Bolam test when giving an opinion on clinical negligence liability.
Considering and expressing your medical opinions within this context can increase the clarity and utility of your reports.
Never be tempted to give opinions which you cannot support. If there are matters which fall outside of your area of expertise – or where you are unable to provide an opinion with the current information – it is important to acknowledge that fact. It forms part of your duty to the court.
Your instructing solicitors will also be grateful for the clarity, especially if you are able to recommend an expert who can provide an opinion on the matter or recommend further investigations to be carried out.
Re-reading your report before you send it is crucial. Again, this may sound like an obvious step, but one which can be overlooked when you have other demands on your time. Look out for any statements which may be interpreted ambiguously and clarify them.
Basic errors, such as typos, using the wrong gender, referring to the right leg instead of the left, etc. may not cause too many problems ultimately, but they make a bad initial impression.
Double-checking might take time, but if you don’t, your instructing solicitors will likely return to you anyway to seek corrections and clarity. And at that point, the case may not be as fresh in your mind.
Often, when looking into medical experts, solicitors will search online to get a better idea of their suitability. If you have built your own web presence – through platforms such as LinkedIn or your own website or blog – you can showcase your expertise, create a good impression, and hopefully secure more instructions.
In the past nine years the way that many personal injury claims are dealt with has significantly changed and this has also led to changes in relation to which experts’ solicitors can instruct and how they go about this. It is likely that further changes will be coming in relation to Clinical Negligence claims. It is also worth noting that the Civil Procedure Rules are regularly updated. For these reasons I would recommend that, even if you are an experienced medico-legal expert, you attend refresher training every two to three years to ensure that you are aware of any developments which relate to your report writing.
SpecialistInfo has been providing Medico-Legal CPD Courses for medical professionals since 2007. Alumni become part of our Faculty of Expert Witnesses (the 'FEW'), which aims to promote high quality expert witnesses to subscribing law firms, medico-legal agencies and insurance companies. Our lead course tutors are practising Barristers and Solicitors in both English and Scottish law. The Medico-Legal course range currently includes live and recorded events including Medico-Legal Essentials (Personal Injury), Clinical Negligence, Advanced Expert Witness and Court Room Skills courses, as well as training in Mediation skills.
Please see our full course range and dates here:
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