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The new guidance given to surgeons acting as Experts Witnesses by the Royal College of Surgeons offers all doctors some food for thought (BMJ 2019:367)
The new Guidance stated to highlight the need for better quality of expert evidence in clinical negligence cases is the brain child of two independent reviews of medical manslaughter published in response to the Hadiza Bawa-Garba case. The guidance is very prescriptive.
The guidance, apart from giving some practical but entirely non descript suggestions with regard to courtroom etiquette, including the role of the jury and the Expert’s Medical Indemnity requirement, sees fit to impose on the aspiring Expert the following mandatory requirements:
Any surgeon acting as expert witness should have been a Consultant Surgeon for at least five years; should only take on cases that they encounter in their routine practice and should not provide medicolegal services after three years of retirement. They should also have indemnity, given the potential risk of litigation.
There is no reference in the guidance to the current lack of Medicolegal Education and, worse, the guidance writes off all retired Consultants after only three years of retirement, ignoring those who are seeking early retirement or their GMC status. There is no mention in the guidance of revalidation criteria.
The Royal College of Surgeons makes it plain that the new guidance is the result of a small number of severe cases of gross negligence manslaughter, yet it appears to imply that the same rules should apply to all cases of clinical negligence and in all jurisdictions, which of course is not the case.
There is a need for better medicolegal services in the UK, and the need for trainees to engage in better Medicolegal Education from a much earler stage, including supervised practice, is self evident.
Indeed, there is no reason why trainees should not be able to provide expert evidence to the Courts, and it has been suggested elsewhere that under certain circumstances and provided they are suitably trained and adequately supervised they should do so by default.
Newly appointed Consultants under the current system can indeed rarely avoid acting as Experts and often learn their trade on the job unprepared and without any previous experience or training.
There is at present a very considerable shortage of “high-quality low-cost “ evidence available to the Courts, making the safe delivery of justice problematic for very understandable reasons (BMJ, 2019: 364).
If accepted uncritically by the unaware it is suggested that this guidance which is borne out of only a minority of extreme cases of gross negligence will only succeed in making new Experts even more weary and the dearth of excellent medical evidence to the Courts even worse.
References
“More Doctors need to train as Expert Witnesses say MPS “ BMJ : 364
“Surgeons should have legal training before acting as expert witnesses, says guidance”(2019 ) BMJ 367
Disclaimer
The opinions and views expressed in this letter are the views and opinions of the Author’s only. They are not the views and opinions of the Independent Doctors Federation
Re: Surgeons should have legal training before acting as expert witnesses, says guidance
Dear Editor
The new guidance given to surgeons acting as Experts Witnesses by the Royal College of Surgeons offers all doctors some food for thought (BMJ 2019:367)
The new Guidance stated to highlight the need for better quality of expert evidence in clinical negligence cases is the brain child of two independent reviews of medical manslaughter published in response to the Hadiza Bawa-Garba case. The guidance is very prescriptive.
The guidance, apart from giving some practical but entirely non descript suggestions with regard to courtroom etiquette, including the role of the jury and the Expert’s Medical Indemnity requirement, sees fit to impose on the aspiring Expert the following mandatory requirements:
Any surgeon acting as expert witness should have been a Consultant Surgeon for at least five years; should only take on cases that they encounter in their routine practice and should not provide medicolegal services after three years of retirement. They should also have indemnity, given the potential risk of litigation.
There is no reference in the guidance to the current lack of Medicolegal Education and, worse, the guidance writes off all retired Consultants after only three years of retirement, ignoring those who are seeking early retirement or their GMC status. There is no mention in the guidance of revalidation criteria.
The Royal College of Surgeons makes it plain that the new guidance is the result of a small number of severe cases of gross negligence manslaughter, yet it appears to imply that the same rules should apply to all cases of clinical negligence and in all jurisdictions, which of course is not the case.
There is a need for better medicolegal services in the UK, and the need for trainees to engage in better Medicolegal Education from a much earler stage, including supervised practice, is self evident.
Indeed, there is no reason why trainees should not be able to provide expert evidence to the Courts, and it has been suggested elsewhere that under certain circumstances and provided they are suitably trained and adequately supervised they should do so by default.
Newly appointed Consultants under the current system can indeed rarely avoid acting as Experts and often learn their trade on the job unprepared and without any previous experience or training.
There is at present a very considerable shortage of “high-quality low-cost “ evidence available to the Courts, making the safe delivery of justice problematic for very understandable reasons (BMJ, 2019: 364).
If accepted uncritically by the unaware it is suggested that this guidance which is borne out of only a minority of extreme cases of gross negligence will only succeed in making new Experts even more weary and the dearth of excellent medical evidence to the Courts even worse.
References
“More Doctors need to train as Expert Witnesses say MPS “ BMJ : 364
“Surgeons should have legal training before acting as expert witnesses, says guidance”(2019 ) BMJ 367
Disclaimer
The opinions and views expressed in this letter are the views and opinions of the Author’s only. They are not the views and opinions of the Independent Doctors Federation
Competing interests: No competing interests