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New guidance for expert witnesses
- Nov 28, 2019
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Serving as an expert witness can be a fascinating and intellectually stimulating experience. However, expert witness testimony is faced with increased legal scrutiny in clinical negligence litigation. Ensuring quality and consistency of expert witnesses available to civil and criminal courts is in the interests of both the public and the medical profession. It is therefore fundamental that surgeons fully understand the environment in which their views are being sought, so they can navigate the process correctly and with integrity.
This guide has been produced as an introduction to good practice for surgeons who already act as expert witnesses, as well as for those who are considering entering this field.
Professor Neil Mortensen, RCS Vice President, said: ‘With a continuing rise in the numbers of medico-legal claims, this new guidance is very relevant and timely. Patients, surgeons, lawyers and the courts rely on experts for independent, objective, balanced and contemporary advice. We hope this summary of good practice will help to improve the quality of expert evidence, in what can often be difficult and distressing circumstances for patients and surgeons.’
Doctors are now subject to new recommendations that emerged from the independent review of gross negligence manslaughter and culpable homicide, commissioned by the General Medical Council in 2018. These were designed to establish a witness’ competence and to clarify their reasons for stating that the conduct of the clinician in question fell below reasonable standards.
The guidance provides practical advice on the nature and scope of the expert’s role and how this differs in civil and criminal proceedings. It addresses some of the main legal and ethical requirements for expert witnesses, and gives advice on how to assess evidence, how to avoid common errors and how to navigate the different positions of the court, jury and solicitors.
Some of the practical advice the guidance offers includes:
• Understand the risk of acting as an expert witness outside your specialty • Resist becoming adversarial in the face of opposing barristers • Remain consistent in your written report and oral evidence • Seek essential training before acting as an expert witness in a criminal case • Beware of ‘expert shopping’ where a view favourable to one side is sought.
It issues a clear statement to doctors of the importance of training, saying: “The witness box is a lonely and intimidating place; it is hard to overestimate the value of prior training in the required etiquette, formalities and survival techniques when faced with counsel.”
It also warns witnesses not to give opinions to the jury on questions they are not entitled to answer. “For example, a surgical expert would be entitled, if asked, to assert whether or not a surgeon’s conduct (related to a criminal case) equated to substandard care, but whether or not that care was ‘exceptionally bad’, which can lead to manslaughter charges, would be for the jury to decide. While the Crown Prosecution Service might pose such a question (hoping for an affirmative reply), the expert should not answer it, since their role is restricted to the binary question: substandard care or not.”
The College also offers guidance on a surgeon’s experience, recommending that those with less than five years’ experience as a consultant, and those who have retired more than three years ago, should not act as witnesses.
Read the guidance in full here