Latest TLA Medicolegal News
1 July 2011
The End of Immunity from Prosecution For Expert Witnesses
Judges, advocates and politicians have traditionally enjoyed immunity from prosecution for statements made, written or verbal in the performance of their statutory duties. Expert witnesses have until now enjoyed immunity from prosecution from clients who allege negligence arising out of their conduct whilst acting as an expert witness to the court.
Historically, judicial immunity was associated with the English Common Law idea that 'the King can do no wrong 'as judges are the sovereign's delegates for dispensing justice. It is probably true that most medical expert witnesses were unaware of this privileged status but ignorance of the law is no excuse and this must now especially be so since Jones v Kaney, where an expert on post-traumatic stress disorder for the claimant signed a draft joint report prepared by the defendant's expert which did not reflect their views expressed in their original report. This caused a substantial reduction in recovering damages for their injury.
A leapfrog appeal to the Supreme Court was allowed to test if Stanton v Callaghan was still good law and the Supreme Court held that the blanket immunity for negligence at the stage of a joint report should not remain.
So where do expert medical witnesses stand now? They clearly have a duty to prepare for the joint statement and have a duty to read its contents in order to ensure that it reflects their true and complete opinion based upon facts of professional judgment. This ought to go without saying.
It is but a small step away from experts being open to claims in negligence for their initial reports. So-called expert medical reports do come in many different shapes and sizes and of variable quality. Some are produced in industrial quantities by the expert and many are not court compliant and many give an opinion without justification or discussion or expression of the range of opinions on these matters, and some even give opinions on matters outside their expertise. Dare I say it that there is also a body of self-reinforcing experts who are prepared to maintain views that are likely to please the parties who instructed them.
Clearly it is important to select the right expert for a case with the medical expert supplying their full academic CVs showing their areas of specialist interest, with publications and their clinical experience in the management and treatment of the particular condition or injury under review. It is important to have a balanced view and not that from a hired gun.
It may be difficult for a lawyer to fully appreciate what constitutes a high quality medical CV. It is also important that expertsare not pressurised by unrealistic deadlines and that their instructing solicitors supply them with all of the relevant records.
Equally it is important that experts are not afraid to state that their opinion is incomplete and may cause their opinion to change when the missing information is forthcoming.
I have found myself being instructed to carry out a joint report in the past when I stated that my opinion was incomplete until I had seen scans (which were not available at the time of deadline for the joint report).
Time For A Clean Up
I believe it is time that the world of medical expert witnesses is cleaned up. There is a need to match the injuries with doctors who truly can claim expertise in the matters on which they report and who can demonstrate some degree of academic rigour or argument to support their expertise beyond the "I have seen this before and therefore I am right" stance.
It would be difficult to achieve this situation by revolution but a shift in the law regarding liability of expert medical reporters to claims in negligence may bring about an evolution by sorting out the men from the boys.
Perhaps the Statement of Truth should read: "I confirm that the injuries on which I have given an opinion fall within my clinical experience as an expert and I am fully conversant with the underlying disease processes, the medical science that underpins the diagnosis and management of the diseases on which I have opined and that I manage and treat these cases as part of my common clinical practice without the need to refer such cases to a higher medical authority".
Such a declaration would indeed be revolutionary, if not somewhat inflammatory!.