Becoming an expert witness

Dr James Thorpe advises on what to expect from the role of a medical expert witness and discusses the considerations of becoming one

Whether in a civil claim for alleged professional negligence, before the Medical Council, a coroner, or occasionally in a criminal investigation, the standard a doctor will be measured against is set, to a very large extent, by the medical expert witness.

Whenever questions are raised about the level of care a patient has received, the role of the ‘medical expert witness’ is central to defining whether or not the care has fallen short of a reasonable standard. Medical Protection supports the professional interests of 16,000 healthcare professionals in Ireland and we regularly see the significant impact that an expert’s opinion can have, not only on the patient and their family, but on a doctor’s career.

Widening the pool of experts

Given the importance of expert witnesses, it is concerning that there are difficulties in finding appropriately trained and experienced doctors to undertake the work. Instruction often relies on word of mouth and there is no central register in Ireland.

Given the importance of expert witnesses, it is concerning that there are difficulties in finding appropriately trained and experienced doctors to undertake the work

The barriers to undertaking expert work – including time constraints, and a wariness of and unfamiliarity with the legal system – mean that doctors who take on expert work are often those at the end of their careers, some of whom have been out of clinical practice for a considerable time.

In our recent paper – Your profession needs you. Supporting doctors to become expert witness – we recommend that established doctors in the country, who are in active clinical practice, should be encouraged and supported to provide expert opinion. They are best placed to understand the wider challenges of the environments in which doctors work and appreciate the systems issues that may have played into an incident.

We believe the HSE, Medical Council, and employers all have a part to play in supporting doctors to take up this important and rewarding role and enabling a larger and more diverse pool of experts.

A wider pool of medical expert witnesses – made up of clinicians actively practising in Ireland, who have undertaken the appropriate training – may also help in increasing the quality of expert reports and helping to drive out so-called ‘hired gun bias’. This is where parties, including those looking to build a case against a doctor, shop around for an expert that fits their case.

In particular, we are calling on HSE to support established doctors who wish to undertake training and participate in medical expert work by making adequate time in job plans and create an open access ‘core knowledge’ module, focusing on the role and duties of the expert witness. The HSE could also a maintain a list of medical expert witnesses along with their specialties to improve accessibility.

We believe the Medical Council should produce specific guidance for doctors acting as expert witnesses so that both the profession and the public have a clear understanding of the expectations from medical experts.

Doctors should also put themselves forward to provide expert opinion if they have relevant experience; and ideally, while being in current clinical practice.

Medico-legal considerations

Whilst medical expert witness work is a noble and rewarding duty, there are of course some risks. Recent cases, such as the Duffy vs McGee case in Ireland, demonstrate the risk of judicial criticism when an expert does not act in accordance with their duty to the court. Judge Maurice Collins of the Supreme Court emphasised the need for a “significant change in culture in this area”.

In 2016, Mr Justice Barton was extremely critical of an expert in a personal injury case. The plaintiff alleged that he was suffering from back pain relating to his work, but failed to disclose a subsequent road traffic accident. Despite having knowledge of this subsequent event, an orthopaedic consultant made no mention of the accident in his expert medical report. Justice Barton said that the failure of the consultant to fully deal with the accident in the reports prepared for the proceedings was “reprehensible and is to be deprecated” and he directed that a copy of his judgment was forwarded to the Medical Council.

In the UK, there are several examples of doctors being struck off the medical register following complaints arising from their expert work. There is no reason why a similar case could not occur in this jurisdiction.

Awareness and mitigation of the risks associated with the role is key and we believe appropriate education and training is essential. Experts should ideally be in active clinical practice and should only provide opinion within their own area of expertise.

It is important that experts inform their medical defence organisation of this work to ensure they have adequate professional protection and can request assistance with any issues that arise.

How to get involved?

Medical Protection is running webinars in May to help members find out more about the role.

Various private providers offer expert witness training. Once the training is completed, instructions can often rely on word of mouth, but once you earn the trust of solicitors the options for medico-legal work may grow exponentially.

Besides word of mouth, you can promote your expertise through expert witness directories, contacting law firms who act in the fields in which you wish to be considered as an expert, and writing articles for professional journals and marketing yourself appropriately.

Expert witnesses are paid for the time it takes to prepare, write, and discuss your evidence. 

If you are looking for work that is varied, always keep up to date within your own medical specialty, and enjoy writing and applying logic, undertaking a portfolio career as an expert witness may be just up your street.

Medical Protection members who are keen to learn more about taking up the role of an expert witness can attend our webinars on 10 and 24 May. For more information, please visit medicalprotection.org/cpd.