Being an expert witness

Why be an expert witness?

The most often cited motives for being an expert witness are the intellectual challenge offered by the job and the opportunity to interact with the legal profession. “The law has always appealed to me, so working on the interface between psychiatry and the law was giving me the best of both worlds,” says Keith Rix, a consultant forensic psychiatrist at Cygnet Hospital, Wyke, West Yorkshire, and part time lecturer in law at De Montfort University, Leicester, who has acted as an expert witness in the civil and the criminal courts.

“I think I find the work intellectually challenging and a change from day to day clinical work,” agrees Jonathan Mumford, a consultant adult psychiatrist in northeast England. “What I enjoy the most, though, is the challenge of having to do an assessment and sum up a case in language that laymen—in other words the lawyer and the judge—will understand and of explaining why I came to the conclusion that I did.”

Dr Rix believes that doctors have a moral imperative to act as expert witnesses. “Any professional person in a society like ours has a duty to assist the courts in the resolution of disputes and the administration of justice where without their expert knowledge the dispute would not be resolved or there might be a miscarriage of justice,” he says. “That doesn’t mean that every doctor, for example, must if requested provide expert witness advice, but there’s a reasonable expectation of the court that when they need medical opinion that they will be able to get it.”

A doctor can also improve his or her own practice as a result of acting as an expert witness. “I think that one of the benefits of doing reports is that it makes you think very carefully about practice overall in your field and your own individual practice. Are you doing things right? Could things go wrong? Have you thought about all the possible eventualities?” says Peter Baird, a retired orthopaedic surgeon in southeast England with more than 20 years of experience in acting as an expert witness.

Then there’s the satisfaction in using your professional knowledge and expertise to assist with a dispute and, of course, the money that expert witness work can bring in. A medical expert witness can expect to earn something like £250-£600 for a report on a personal injury case, going up to several thousand pounds for complex cases that involve lots of research. And that’s just report writing: an expert could make more if he or she is required to go to court.

How can a doctor become an expert witness?

“In essence anyone can be an expert witness, but to be a credible expert you’ve got to be acting within the sphere of your competence and expertise,” says Michael Devlin, head of medical advisory services at the Medical Defence Union.

The union recommends that any doctor who wishes to become an expert witness has 10-15 years of specialist experience and has undergone training on giving evidence and the relevant law, in particular the civil procedure rules part 35.3

Rather than being called up by the courts, as is the case with witnesses of fact, expert witnesses often put themselves forward to provide opinion on cases in their specialty, for example by joining an expert witness organisation such as the Expert Witness Institute (www.ewi.org.uk). Many expert witnesses get involved by chance, however, after being recommended by a colleague or on the basis of their reputation in their field.

What does it involve?

A medical expert witness could be instructed by either the claimant or the defendant in a civil litigation case or by either party in a criminal case. Sometimes the expert will be instructed by both parties, as their responsibility is to provide an independent opinion to the court and not to advocate for the person who is instructing or paying them.4

The first thing a medical expert witness will do after being instructed by a lawyer is have a consultation with and examine the individual for whom they are acting as an expert witness. They will then need to write a report that draws on the consultation, the individual’s medical records, any relevant medical literature, and the range of opinion on the facts. The Medical Protection Society recommends that an expert witness report allow the reader to glean the key issues in the case, understand the evidence available, and reach a clear understanding of the range of expert opinion, without needing to look at any other document.5

The expert may then need to have conferences with counsel and, in some cases, go to court, both to give evidence and to listen to other witnesses. Whether or not experts need to give evidence in court varies according to their branch of practice and the type of case in which they’re acting as an expert. Most civil cases settle out of court, whereas criminal cases are more likely to require a hearing.

The amount of time required to work on a case can range from instances where the expert spends three to four hours writing the report but then has no further involvement to cases where the expert spends hours in consultation with the claimant, has to write hundreds of pages for the report, attends a multitude of conferences with counsel, and stands in the witness box.

Witness or defendant?

Expert witnesses have hit the headlines recently after a case involving a consultant clinical psychologist effectively removed expert witnesses’ 400 year old immunity from being sued by the parties they are acting for.67 If it is alleged that an expert has been negligent in his or her advice or has breached a contractual duty to exercise reasonable skill and judgment, then the person instructing the expert is now entitled to issue proceedings to recover damages.

The case that established this ruling was that of a consultant clinical psychologist, Sue Kaney, who was acting as an expert witness in a road traffic incident case for Paul Wynne Jones. Mr Jones contested that he had received considerably less in damages owing to Dr Kaney acting negligently by signing a medical report that she had not read and later said did not accurately reflect her views.

“What the ruling hasn’t done is change anything in terms of creating a new duty: there was always a duty owed to the person who was instructing you,” clarifies Dr Devlin. “The only thing that has changed is that there was a public policy that prevented bringing a claim against a doctor when they were giving evidence.” However, expert witnesses might now be reluctant to give evidence that goes against the client’s interests for fear of being sued. “I think it will make people rather more afraid to give honest robust judgments that might be critical of the person instructing them,” says Mr Baird.

Even if an expert has acted professionally and appropriately, he or she could still be subject to vexatious claims from individuals who are unhappy that a case hasn’t gone their way. “It takes time and money for the expert and for his or her insurers to respond to these sorts of claims, and it can be extremely worrying for the expert to be potentially on the receiving end of a case for negligence in the civil courts,” says Dr Rix.

This is of particular concern in controversial or emotive cases, such as those involving children. “If you work in a contentious area such as in the family courts or the criminal courts, it’s more likely that you’ll get a litigant who is unhappy with what you’ve said and will try and pursue every avenue against you,” says Dr Mumford.

On the other hand, clients have always been able to take action if they believe that experts haven’t acted professionally, by referring them to the General Medical Council. And there has always been a small but important number of claims against experts who have acted negligently outside the court, such as in failing to answer questions from counsel. Furthermore, the equivalent immunity was removed from barristers about eight years ago, and there hasn’t been a flood of claims against barristers, nor have barristers been unwilling to carry out their duties as they did before.

Essentially expert witnesses have little to fear if they are doing their job properly—if a doctor works carefully, considers the evidence, researches it thoroughly, and gives a balanced report, it’s unlikely that he or she will be found in breach of duty of care.

“I think that the expert who carries out their work contentiously, thoroughly, and with a proper regard to the ethical and professional principles that underlie the work of an expert witness and has regard to their duty to the court will be unlikely to find themselves on the receiving end of an action for negligence in their work as an expert witness,” says Dr Rix.