Providing Expert Evidence

Case history

You receive a letter from a solicitor asking if you will provide an expert report in a case in which a patient experienced a post-operative infection.

Discussion

Requests for an expert report may come from a variety of sources including:

• solicitors seeking a report for use in litigation
• coronial matters, either by the coroner or an involved party
• AHPRA, regarding the conduct or treatment provided by another doctor
• courts and tribunals such as Guardianship, Workers’ Compensation and Probate.

You are not obliged to act as an expert. You should only accept if you consider that you have the requisite expertise and experience, and understand your obligations in accepting the request. You will be asked to provide information in your report as to your expertise and you can expect to be questioned on this if giving evidence in court.

The expert is an independent witness whose role is to assist the court (or tribunal) to evaluate the medical issues involved in reaching its conclusion. The expert is not an advocate for a party. Your role is to remain objective and independent from any bias. It is the role of the court or tribunal to determine the outcome. Your role is to apply your expert knowledge in examining the facts and circumstances.

All states and territories have a code of conduct for expert witnesses and it is important to familiarise yourself with this. Generally, the code of conduct will require you to include in your report:

• your qualifications and experience
• the assumptions made in providing the report
• any tests or investigations relied upon
• a summary of your opinion and your reasoning
• a summary of the instructions, facts, literature and documents you considered when reaching your opinion
• any unknown matters or further investigations which you consider are needed to avoid incompleteness or inaccuracy
• if applicable, that a particular question or issue falls outside your expertise
• an acknowledgement that you have read and complied with the code of conduct.

When preparing your report, you should try and use clear language and explain any technical terms so that non-medical people can understand them.

You should respond to the questions asked of you, not what you think should be asked – but you can raise any omissions which need to be examined.

It is not unusual for the same set of facts or assumptions to be interpreted differently by different experts, and you should not allow your professional opinion to be swayed just because you differ from another expert. As part of the process of narrowing the issues, you may be asked to identify the areas of agreement and disagreement. This may involve meeting with the other expert(s), but you can still provide your own independent opinion on areas of difference. If you change your opinion at any stage before you give evidence, you should inform the party who instructed you.

If the matter proceeds to a hearing, then it is very likely you will be asked to give evidence and also be cross-examined in relation to your report. Accordingly, you will need to be familiar and comfortable with the process, and willing to attend court if required.

You may be asked by the lawyer acting for the opposite party to meet to discuss your conclusions or to provide a supplementary report. This can be done, but it raises issues regarding legal professional privilege and not revealing any confidential information you have received as part of your instructions. Also, if you have had a consultation with a patient as part of your opinion, then you will need to consider your duty of confidentiality to the patient within the context of your duty as an expert. These can be very complex issues and you should consult MDA National for advice.

Although Australian expert witnesses currently have legal immunity, there have been cases where complaints have been made to the Medical Board about doctors who have provided incorrect advice in expert reports and when giving evidence.

Janet Harry
Medico-legal Adviser, MDA National