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No longer a hired gun, but a valuable asset ‘Instructing a dental expert from a dentist’s perspective’
- Mar 8, 2021
- Latest Journal
With the Civil Procedure Rules (Part 35) and the Jackson reforms in 2013 legislating to stop the expert witness being a hired gun, it is my experience that this approach when the instructions to experts is still common. I am frequently asked to comment on whether negligence has occurred. As this is a legal outcome, an expert should therefore not advocate, but provide the reasoned opinion to allow the court to decide.
However, an expert witness who understand their role and the process in which they are involved, can be very valuable asset to the case regardless of whether this is in defence or pursuit of a claim.
The knowledgeable expert witness will ensure that the salient matters are focused upon and the case is not drawn down the cul-de-sac of client perceptions or the emotional motivation of the claimant.
It is commonly an admission of lawyers, including judges, that they do not have a working level of dental knowledge. Therefore, being guided by your expert as to the matters within the case that have merit, will save you time, achieve a quicker resolution and avoid the easy deconstruction of your case in cross examination.
Your expert witness should have sufficient knowledge and experience of the area in which they are an expert in. I would suggest that they have been working in that field for at least 10-12 years and is still involved in the profession at some level. It is also important that the expert works in the same domain that the case relates to. A common method of undermining an expert is when the report is written by a senior academic or secondary care specialist, when the complaint relates to primary care.
In addition to this, it is vital that the expert fully understands their role and responsibilities that accompany it. Appropriate training as well as membership of nationally recognised organisations and directories, are a good way to assess the credibility of your expert.
A capable expert will allow your case to be drawn together with substance and give you confidence that the matters you are raising have a sound basis. Therefore, it is vital to ensure that your expert has an opinion that is reasonable and evidence based. A weak report will simply reiterate the claimants or defendant’s position without explaining why and leave your case open to reproach.
In order to help you get the most out of the expert you are instructing, some fundamentals will help expedite the process and ensure you build a long and fruitful relationship.
Please do send;
• This will include your requirements and the claimant’s position
Good Clinical Records
• All relevant records need to be provided; before, during and after incident. as well as the details of the reason for raising an action.
• The clinical records need to be provided all at same time. Otherwise, a true assessment cannot be made, and the final report will be delayed.
Good Quality Images,
• Ideally digital format sent digitally. Extremely good hard copy reproductions can be acceptable but rarely will suffice alone.
• Ensure all images are present
• Ensure all images need to be dated
• Photocopies/Scans are not acceptable
• Please ask the expert of this is absolutely necessary. In many dental cases, a clinical examination will not add anything to the information that can be gained from the documentation. For example, if a case is related to a tooth that was lost, it is likely that at the very least, stabilisation treatment has been undertaken. Therefore, a clinical examination of a patient when the tooth is question is no longer present serves no purpose other than delaying the final report and adding cost to the expert fee.
Please do not;
• Use Uncommon File Formats
Sending files in uncommon digital formats can cause delays and frustration
• Send Copious Hospital Records
If the claimant has had treatment at hospital, please try to avoid sending multiple level arch files of irrelevant hospital records e.g. detailing that the claimant had an appendicectomy 12 years ago. It takes a long time to wade through these just to find that there is no relevance to to the case
• Adopt Radio Silence
Please remember to keep your expert updated, especially once instructed. It keeps the momentum if you can send the relevant details and requirements relatively quickly. This ensures that the expert can begin work and the report is not delayed. It can happen that considerable time will go by without contact and the expert does not know if they are still required. Then a significant amount of documentation is sent with the expectation that the report will be provided in a short time frame.
• Delay Paying Your Expert.
Experts are contracted by the instructing solicitor and not the solicitor’s’ client. Therefore, the terms and conditions of expert should be abided by regardless of when case is settled.
Following these guidelines will ensure that you build a good relationship with your expert which can be very beneficial to you in the long term both in terms of goodwill, speed of report turnaround, success for clients and your remuneration.
Antony Visocchi BDS, MFDS RCS Ed, MJDF RCS Eng, FDS RCPS Glas, FFGDP(UK) AFHEA, Post Grad Dip Med Law
Antony has been in general dental practice for over 23 years. He provides expert witness reports for the General Dental Council and dental indemnity providers as well as clinical negligence and personal injury solicitors. He now splits his professional life between clinical care, mentoring colleagues, dental practice compliance advice, dento-legal work, dental practice inspections and teaching and examining. In 2016, he attained the Cardiff University Bond Solon Civil Expert Witness Certificate and is now undertaking an LLM in Medical Law and Ethics as well as working to complete his portfolio for FFGDP(UK).