Expert witnesses play an essential role in assisting the court on specialist or technical matters and many doctors, including GPs, find such work intellectually challenging and a change from their day-to-day job. They are also paid fees.
The MDU regularly advises medical expert witnesses on their duties and responsibilities and provides support on those rare occasions when things go wrong.
Doctors acting as expert witnesses are professionals with sufficient experience to give a reliable and informed opinion to a court or a disciplinary hearing in relation to matters calling for expertise. They offer their professional, objective views on the evidence in cases where they have not been involved in treating the claimant or been witness to any aspect of the case.
Are professional witnesses different?
Being an expert witness is not to be confused with being a professional witness, when you are asked or compelled to give evidence on events that are being investigated by a court. A professional witness is required only to give factual evidence although they may in some cases be asked by the judge or presiding officer to provide their professional interpretation on the facts.
What experience do I need?
A GP with 10 to 15 years’ experience is likely to have the necessary background knowledge take on an expert witness role. However, many will also find some specific training useful.
Several national organisations offer courses focusing on the skills required of an expert witness and the law that applies to expert witness work, such as the Expert Witness Institute, the Society of Expert Witnesses and the Academy of Experts.
What are the duties?
Once instructed to advise in a medico-legal case, an expert’s duties can include:
- Writing reports with reference to the facts of the case, drawn from the medical records, witness statements and any other relevant material.
- For civil cases, experts have to ensure that their reports comply with the requirements of the civil procedure rules which govern the conduct of all civil cases
- Carrying out literature searches to back up their opinion with supporting evidence from published articles in journals and textbooks.
- Discussing the report and the case with the lawyers and others involved to identify any weaknesses in a case and uncover other medical issues.
- Meeting other instructed experts to discuss the case and to see whether some aspects can be agreed.
- Giving oral testimony, for example, in court or at the GMC.
Can expert witnesses be sued?
For hundreds of years, the duty of the expert witness was to the court, and this is still the case. However, since a Supreme Court judgement (in Jones v Kaney) in 2011 that experts are no longer immune from actions for negligence, it has been possible to be sued by a claimant who believes they have suffered loss due to negligence by the expert.
An expert accused of negligence will be judged by the standards of other experts in their discipline. Even if breach of duty is established, the claimant will have to show they have suffered a loss.
It may reassure GPs to know that the majority of cases relating to expert witness work notified to the MDU are from doctors requesting advice - 90 of 116 cases over the past five years.
Only 26 cases involved criticism of a doctor by the solicitor, the judge involved in the case or by the patient or their family in their role as an expert. In eight cases, the doctor was referred to the GMC.
Although the numbers are few, recurrent allegations are:
- Giving misleading advice to a court
- Failure to properly examine papers or the patient
- Failure to declare a conflict of interest
- Putting themselves forward as something they were not: for example, not being an expert in the relevant specialty.
A doctor who acts as an expert witness has little to fear if he/she works carefully, considers the evidence, researches it thoroughly, and gives a balanced report.
|Tips on being an expert witness
- Dr Dale is a medico-legal adviser at the MDU
- See the Medeconomics Database of GP Fees for expert witness fees information.