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Dr Whiticar discusses the expert witness role and the need for more doctors to take it up.
As doctors, although we may not like to admit it, many of us at different times in our career will experience self-doubt - whether it be the first time we step onto the wards as a junior doctor, stethoscope in sweaty hand or addressing our team as a new consultant. How many of us have asked ourselves how we got here, and can we do this? – a form of imposter syndrome that many of us medics may feel but very rarely share.
Is it any wonder that many of us, once we become established medics, struggle with the concept that we may be considered ‘experts’ in our fields and that we could undertake work as an expert medical witness?
Demand for experts
In 2020/21 the NHS spent £2.4bn on clinical negligence claims – an increase of 8.7% on the previous year1. In addition to the financial toll on the NHS, we must not forget the emotional toll which both the families and the doctors involved in the claim suffer.
The Health and Social Care Committee inquiry on NHS litigation concluded that “a process that is supposed to deliver justice and incentivise improvements fails to do either: lessons are rarely learned and for families accessing compensation is slow, adversarial, stressful, and often bitter.”2
The impact of litigation on medical professionals was also described by Sir Robert Francis KC:
“When a claim is made, they (medical professionals) can feel singled out, unsupported and worried about possible sanctions. Clinical negligence claims tend not to be discussed with colleagues and little help is offered about what to do. Consequently, concern for repercussions of any apology or admission of error can override their duties to the patient”.3
In this context, the role and the need for high quality expert medical witnesses is clearly vital. Lawyers will tell you a good expert can ‘make or break a case’ and certainly, in my experience, good and early involvement of a medical expert witness can help reduce costs, help to align claimants with realistic expectations and lead to earlier resolution for all parties.
Expert opinion also plays a critical role in other domains, including in criminal, civil, coronial and GMC processes. Such opinion can determine, for example, whether or not the Crown Prosecution Service pursues a conviction for gross negligence manslaughter against a doctor following an incident or error that leads to the death of a patient. It can also, more broadly, dictate the standards to which doctors are held. In the Family Courts, medical opinion is relied upon in relation to decisions where the lives and wellbeing of children are at stake.
Yet there is a shortage of medical experts willing to take on this important role. Recognising this, in autumn 2018, President of the Family Division, Sir Andrew McFarlane, established a working group to identify the scale of the problem in the family courts. The barriers are varied and complex.4
It is not just the shortage of medical experts that is an issue, however, there are also concerns about the lack of diversity in the medical expert witness pool, an issue flagged by Medical Protection Society (MPS) in its 2022 report Getting it right when things go wrong: the role of the medical expert.5 An MPS freedom of information request to the General Medical Council showed that 86% of the experts instructed in fitness to practise cases are men. MPS fears the low proportion of women on the GMC’s list of experts may be indicative of the wider medical expert witness community, and says a step change is needed to break down barriers preventing women from taking up the role.
A recent article in the Financial Times suggests a lack of gender diversity exists across experts from all backgrounds, not only medical, and this has prompted a global campaign aimed at encouraging more women to put themselves forward and more parties to appoint them6.
Definition of an expert
An expert witness can be thought of as anyone with knowledge or experience in a particular field or discipline that is beyond that of a layman. Expert witnesses will be instructed by a party (usually a law firm) to provide their specialist knowledge by way of an opinion on a particular issue/set of issues or facts in a case to help resolve a dispute.
While opinion is sought by one party (or sometimes both parties in a dispute – otherwise known as a single joint expert), an expert’s overriding duty is to assist the court with the ultimate outcome of a dispute by providing a report that is independent, objective and unbiased. The courts have stated that: "To be competent as a medical expert, a witness must have acquired by reason of study or experience or both such knowledge and skill in the medical profession as to be better qualified than the fact finder to form an opinion on the particular subject of his testimony.”7
The life of an expert witness can be incredibly varied depending on both the speciality and area in which you work. In my speciality of emergency medicine, my expert role mostly involves providing written reports which give an objective opinion on a claimant’s allegations of breach of duty at the very early stages of a claim to aid early resolution if possible.
Most of this work is done in my own time at home, but occasionally the cases will progress to joint expert conferences or conferences with the legal teams. Prior to Covid-19 these were in person, but thanks to the new remote working environment, this is now all possible through videoconferencing.
What makes a good expert
It is important to emphasise again that many doctors may not feel they are ready to be an ‘expert’ in their field.
So when considering whether you should undertake expert work or not, you could consider what attributes you might have as a doctor which could make you a good expert witness.
Solicitors I have worked with have always stated that the most valuable attribute in a medical expert is a clinician who has the ability to write clearly and succinctly, logically explaining their rationale for their opinion backed by relevant medial evidence. It stands to reason that an expert witness must be capable of reading large amounts of clinical information, analysing a case objectively and giving an independent viewpoint backed by up-to-date medical knowledge and evidence.
I would add that a good expert must act with honesty and integrity, have the maturity to declare any relevant conflicts of interest and to admit if the instructions from solicitors fall outside of their remit of expertise. The experienced medical expert has the ability and wisdom to only accept instructions in cases they consider relevant to their expertise.8
Being an expert witness is no different from being a clinician, in that we need to maintain the trust of both the legal professionals we work with and the public.
To help maintain that trust, an understanding of clinical negligence processes, the legal principles of clinical negligence and the civil procedure rules (CPR part 35) - which govern the role of the expert - are essential.9
This can all be learned through expert witness training, which would contribute to the clinician’s own CPD and appraisals for validation. You would not endeavour to do a practical procedure such as an insertion of a traumatic chest drain without knowledge of the rationale for the procedure, the anatomy, the logistical process, and your equipment – writing an expert report is no different just with an understanding of the CPR part 35 and case law rather than chest wall anatomy.
400 years of immunity for experts was waved in the recent landmark supreme court case of Jones v Kaney [2011]10 and it is therefore important to appreciate as a medical expert that you can be held accountable in your role. It is vital to have appropriate indemnity arrangements in place, just as you would do in your clinical practice.
At the end of the day an expert witness’ overriding duty is to the court and therefore an expert must be ‘credible’ to that court. Credibility in my opinion is linked to current knowledge of the systems in which we work and indeed the MPS report suggests that doctors should put themselves forward to provide expert opinion while being in current clinical practice.
Ongoing involvement in clinical work helps to ensure that experts are up to date and allows for a more realistic assessment of what is ‘reasonable’, as opposed to ‘text-book’ practice. Those working within a system are best placed to understand its challenges and imperfections. Systems issues often play a key role when things go wrong in medicine. They inevitably impact on the care provided by a doctor, and so deserve consideration in all situations where a doctor’s practice is under scrutiny. The MPS report goes as far as suggesting it should be mandatory for medical expert reports to consider the role systems issues may have played in an adverse patient outcome.
How to become an expert witness
I created my own path to becoming an expert witness by becoming dual qualified in medicine and law while still clinically practicing in my speciality, but that is by no means the only way in, and there is no single route.
There are plenty of training options that exist for experts and some ‘lists’ you can join, however there is unfortunately no single central register of experts, which can mean instruction often relies on word of mouth. Work as an expert witness is often determined by ‘who you know’ and then in turn which solicitors learn to trust and like your reports.
There is a recognised need for more expert witnesses and with that there is a need to diversify to produce the best possible pool that instructing solicitors can choose from.
We need to look at the barriers stopping the expert pool from growing and diversifying, and what we can do to introduce our world and the benefits to others.
The majority of consultants and GPs, ideally in current clinical practice, should have the requisite knowledge to provide an expert opinion in their field of expertise after an initial period in post, and should feel confident and empowered to do so. It is diverse, challenging yet rewarding work that is vital for the profession and society.
If you are a doctor considering beginning a medico-legal practice, or feel you need an update on current rules, then please view SpecialistInfo’s range of CPD courses for medical expert witnesses. www.specialistinfo.com/course-calendar-2023
We also maintain the Faculty of Expert Witnesses, which is the largest database of approved medical experts available for subscribing law firms and medico-legal agencies to approach. www.specialistinfo.com/specialistinfo-medico-legal-services
References:
[2] https://committees.parliament.uk/publications/22039/documents/163739/default/
[5] www.medicalprotection.org/expert-witness-report
[6] https://www.ft.com/content/baff530f-1088-4aac-86bd-e9ebb80e8c89
[7] What is a Medical Legal Expert? | Medical Legal Experts
[8] Papagiannopoulos K. The ideal and impartial medical expert: tips and tricks for a safe medicolegal practice. J Thorac Dis. 2019 Apr;11(Suppl 7):S1009-S1013. doi: 10.21037/jtd.2019.04.68. PMID: 31183183; PMCID: PMC6535473.
[9] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
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