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Expert Reports in General Practice
- Aug 10, 2016
- Latest News
by Dr Katharine Morrison, Forensic/General Medical Practitioner
MB ChB, MRCGP, DRCOG, DCCH, DMJ, MFHom, BSCMEH
Sooner or later we all need to see our General Practitioner. We would all like to think that the GP does their best for us and that if something does go wrong the consequences won’t be serious. Unfortunately mistakes do occur and sometimes the consequences are traumatic for a patient and their family.
Regarding breaches of duty of care, most doctors have been unlucky. On that particular occasion they simply have not, for one reason or another, taken the time to fully listen to the patient, really think about what they should be doing, and then doing it. When a GP is running late or stressed their mental focus narrows. It is in this overloaded state that they tend to make mistakes.
When writing reports, knowledge about the subject matter is of prime importance. Is this within your area of expertise, or is it just that little bit out? Could someone else provide a better report? These are questions you have to ask yourself when you get a brief from a lawyer. Lawyers are always graceful when you tell them that this isn’t your area and they are overjoyed when you can recommend someone whose area it is.
The biggest difficulty I have found is when there is difficulty establishing what the facts of the case really are. Often it is necessary to look at the facts of the case as they appear to the patient, and then separately list the facts of the case as they appear in the medical notes. Sometimes there is a conflict, and sometimes you will end up with an opinion which is split on what the patient says, and on what the notes say.
Although about 40% of my cases show up some breach of duty of care, it is relatively infrequent for the matter to go to Court. Although some fault in the primary care clinician’s behaviour may have been identified, either they did something they shouldn’t have, or they didn’t do something they should have, not all of these factors would cause any harm and not all of these factors would have caused the harm that was experienced. In my role in primary care most of my reporting is limited to the
aspect of breach of duty of care. It is usually other expert witnesses in more specialist fields who tackle the issue of causation.
For those cases being prepared for Court, counsel may ask for certain changes to your report. Sometimes this is removing any aspects related to causation, for which you may have an opinion, but which would not be valid in Court. Other times, some minor changes of emphasis need to be made.
Sometimes an expert may be asked to omit a section of a report. The question you need to ask yourself is “Is this important in the interests of truth and justice for the Court to know?” If it is, you should not change your report, even if that means you will get no further work from that solicitor.
Lawyers are retained on both sides of the adversarial system. They are doing their job to act in the best interests of their clients.
Once the lawyers have your material they will do whatever they need to do to win the case with it. This may include abandoning it, using part of it, or using all of it.
Medical and other expert witnesses are dealing with issues that affect people’s lives, and the quality of their lives. Expert witnesses have an extremely important role in making sure that the information they provide is
correct, within their area of expertise, and that opinion or recommendation is based on integrity.
A lawyer can live with is a report that doesn’t do his side any favours. What they find very difficult to deal with however is if you change your mind when you are in the witness box.
Is changing your mind a strength or a weakness?
This depends. You should have thought out the facts of the case, the issues that need to be addressed, and make your mind up based on what your think is reasonable and rational. At every stage you need to think, can you justify your opinion?
Every so often a case comes along where either at the last minute, or in Court, you will be presented with factual information which may conflict with the facts on which you have based your opinion. It is right that you re-consider and then you may be justified in changing your opinion.
Occasionally you will be given the opinion of some authoritative source about something or other. If you have good reason for holding an alternative opinion, you may say on this occasion they are wrong, and explain why they are wrong and why your original opinion is still correct. Every time I go to Court for instance regarding the Field Impairment Tests for suspected drugged driving this is actually what I do.
Sometimes your reports are read out in Court and other times they are not. I think it very helpful to use simple, everyday language when you possibly can. For technical issues however, you may need to use technical words. This is mainly so that other experts know exactly what you are talking about. Before going into the Court situation where you need to speak to a jury about an issue it is important to think about how you are going to present your opinion so that they fully understand what is going on with the case.
Once in the Court situation, leading your evidence is usually straightforward, and you are taken through it by the side that you are representing.
Cross-examination can be tricky. Lawyers, as I have said, will do anything to win a case. It can be hard to remember at times, but it is really nothing personal, it is the nature of an adversarial system. Often lawyers will become more aggressive and use more dirty tricks on you if they have no other way of destabilising the opposition. It is important to stay calm because, as you will recall, stress reduces the options that are open to you in response.
The possible question is the easy way to get a response from you that agrees with them. Practically anything is possible. “Is it possible that the injury you have described is not a bite mark after all?” The truthful answer is yes. This sort of line of questioning can go on ad nauseam because practically nothing is impossible but the real issue is “Is it probable?” In response to the “possible” question, you must keep your head and say something like “almost everything is possible, but in my opinion the probable thing is ….”
Often you will be asked closed questions to which the answer will be yes or no. Sometimes a yes or no answer is appropriate but if it is not this is what you do. If you think that you should be giving a qualified yes or no, you say yes or no, break eye contact with the lawyer, face the jury and say the qualification. You may be interrupted by the lawyer who says yes or no again. You then face the judge and say “I have promised to tell the truth, the whole truth and nothing but the truth. The fully truthful answer to this is “yes and ……” or “no and ……”.
When lawyers are trying to focus a jury’s mind on what to them are the most important facts of the case, they will tend to try to break down information using specific information and general information. If they say something like “you have already told the court Dr Morrison that the parts of a good consultation include history taking, examination and investigation. Yet we can see from the evidence that this doctor did not do an examination. Surely this indicates, as you have stated, a deficiency in the consultation?” Now you could simply say yes or maybe it would be more helpful to the court to go general and explain that in the context of this particular consultation and examination was not an expected necessary part of it. You may be tackled from the other end, “Surely Dr Morrison the evidence we have heart today indicates that the bruising was due to being hit with this baseball bat?”. You could reply yes but you may wish to qualify your answer by saying yes and other implements such as a brick, a fall, a wall, could also have caused this type of injury.
When a patient suffers harm there is a long road to be travelled before they are compensated by the clinical negligence system and a no fault compensation system seems a long way off.
Clinicians often work in systems that are not supportive of good practice. Expert witnesses could certainly be great sources of information about system changes that could make the care system for patients and doctors much better. The environment could progressively be created where the problem would not occur.
Expert Witness Journal