Solicitor Kirsty Jeeves explains the duties and responsibilities of acting as a medical expert for the MDU.

A cursory glance of the newspapers or a fleeting scan of the internet will give you the impression that medical negligence claims and complaints against doctors are on the increase. In this atmosphere, there is a demand for doctors to take on the role of medical expert.

This article addresses the following topics:

  • what you need to become a medical expert
  • what the role involves
  • what the MDU expects of its medical experts
  • what your duties are as a medical expert
  • your liabilities in the role.

Becoming an expert

A medical expert is a practitioner with significant experience in their chosen field who uses their expert knowledge to assist a court (or other judicial or quasi-judicial body) by giving evidence, either in written or oral form.

There are various organisations who provide assistance and training to become an expert witness. In essence you need to provide a CV which demonstrates your experience, including teaching posts, publications and lectureships. Writing medico-legal reports is a skill and these organisations can assist you with training towards report writing, understanding the legal process and attendances at Court.

What the role involves

Medical experts are commonly instructed by one of the parties in a case of alleged clinical negligence.

The role of the expert is to provide an independent expert opinion on the facts of the case on considering a bundle of documents, or following an examination of a patient.

Experts usually have to review detailed and lengthy documentation. Such information is used to formulate their opinion. Expert opinions need to be communicated in a clear and succinct manner, which is comprehensible to the Court as well as the parties involved.

One of the essential points to remember is that irrespective of who instructs the expert, their duty is to assist the body to whom they are providing their evidence - that is, a civil or criminal Court, an inquest or a tribunal. A dim view is taken of experts who are perceived to be advocating a position rather than providing an opinion.

Experts' duties

The GMC publishes guidance1 for doctors who want to act as expert witnesses. There are also legal duties which must be complied with and, if an expert is a member of a professional association, they must comply with its Code of Conduct. It is also essential that experts uphold the duty of confidentiality.

The MDU expects the experts it engages to understand their role and to comply with their legal duties as an expert.

Photo credit: Getty images

What the MDU expects of experts we instruct

The MDU expects the experts it engages to understand their role and to comply with their legal duties as an expert. It is important that experts have procedures in place to identify potential conflicts of interest and to decline instructions where appropriate - for example, by not accepting instructions from both sides in litigation, or providing a report in a case which involves a colleague.

Experts must restrict their opinions to their area of expertise. If as an expert you feel that an alternative expert opinion is necessary, it is helpful to advise the MDU of this as soon as possible.

Expert opinions must be impartial, all the information which has been relied upon must be referenced and all the questions which have been asked must be answered. If an expert has comments which go beyond the scope of the original instructions it is helpful to set these out and, where there is a range of opinion, it is crucial to explain this.

As cases progress and more evidence becomes available an expert may change their opinion. If this happens it is important to advise the MDU as soon as possible.

Writing expert reports and being available to answer questions and attend meetings is a significant time commitment. It is important that reports are prepared in accordance with agreed timescales and, once instructed, communication with the MDU is of vital importance. If you encounter, or know that you are going to encounter, difficulties with the timescales or documentation provided, it is important to update the MDU so that the appropriate steps can be taken.

Acting as a medical expert

Top five tips
  1. Only provide an opinion within your area of expertise.
  2. Answer the questions you have been asked.
  3. Make a note of deadlines and communicate any difficulties you may encounter.
  4. If you provide a supplementary opinion, date it.
  5. Make sure you have all the documents you need and ask for those you require.

'Inexpert' evidence

In 2011, the case of Jones v Kaney changed the legal landscape for medical experts. It is now the case that experts can be sued for providing negligent advice. It is therefore essential that experts have appropriate professional indemnity for their work as an expert witness.

For information about indemnity for medico-legal work, contact our membership team: membership@themdu.com.

FOOTNOTES

1GMC Acting as a witness in legal proceedings (2013)

This page was correct at publication on 27/11/2015. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.