Ten tips for medical expert witnesses
Doctors can play an important role as medical expert witnesses in the decision process in Australian courts and tribunals. There’s a limited supply of them, however, which means they are much in demand.
Medical expert witnesses are used in three main types of legal encounter. Firstly, in civil cases where the expert is required to give evidence as to whether another doctor acted in accordance with the accepted standard of care; secondly, in cases where another doctor faces disciplinary action; and lastly in coronial inquests where a medical expert witness is asked to help determine the cause of death and any role a person or institution may have played in it.
It’s important to understand the onus of proof in courts, which can vary considerably from what would be considered scientific proof in the medical world. In civil cases, legal proof is based on the balance of probabilities, while in criminal courts proof must be beyond reasonable doubt.
Expert medical witnesses have important duties in the legal system and it is not up to them to decide whether a doctor or other defendant is “guilty”.
Most states and territories have codes of conduct for expert medical witnesses which is important to read before you write your initial report.
Here are a few tips for doctors who have been offered or are thinking about a role as a medical expert witness:
- The role can be time-consuming and it may not be feasible to be doing it in your “spare time”;
- Be fully prepared and have your opinion formed before you are called upon to testify;
- Develop a clear reasoning for your opinion, but do not hypothesise about what may or may not have happened in any case;
- If you have any concerns about your opinion, go through them with the lawyer who engaged you before writing your report;
- If something is unclear, you may decide you need to give two different opinions based on two different possible scenarios;
- Don’t contradict in court what you have already written in your report;
- Be aware of outcome and hindsight biases. These involve judging a decision on the basis of outcomes rather than what led up to the decision in the one case; and in the other, it involves predicting the probability of an adverse event retrospectively;
- Be clear on levels of evidence and recognise the differences between a directive, a policy, a standard, a guideline and a position statement;
- Don’t fall into the trap of being an advocate for the lawyer who hired you;
- Be aware that expert medical witnesses can face disciplinary action for evidence given in court which is seriously flawed.
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