Many doctors will already have experienced the thrill of acting as an expert witness in court or tribunal proceedings. Most doctors will already have been engaged to prepare medical reports in relation to patients, or on a referral basis. These reports are often undertaken in circumstances where their conclusions will affect the outcome of litigation or legal process.
Particularly with the increase in personal injuries litigation, medico-legal reports are an important part of the evidence presented to support or diminish a plaintiff's case.
Where a doctor has examined a patient, or where the doctor has supplied a medical report, he or she may be called to give evidence in relation to his or her observations in the examination, or the comments made in the report.
The doctor is an expert witness, because of the special skills and knowledge of the doctor in relation to the medical condition of the patient. Doctors should remember, however, that they are giving expert evidence as to the “medical” condition of the patient, not the financial condition of the patient, not necessarily the demeanour of the patient, the doctor's views on MediCare or WorkCover, or other political issues!! Information supplied by the doctor should be relevant to the medical issues only.
Accordingly, doctors should ensure that their reports or evidence in court is:
- fair and impartial;
- clear, concise and as unambiguous as possible;
- within the specialty or medical skill or knowledge of the doctor, or his or her expertise;
- relevant to the medical issues involved.
In preparing a medico-legal report:-
- Stick to the facts as you know them. Check the medical records and other documents and don’t rely on memory.
- Clearly identify the patient, the condition, the treatment and other relevant information involved in the care of the patient.
- Avoid jargon, abbreviations and medical terms which would not be obvious to a lay person.
- Be clear when you are expressing an opinion, rather than referring to a fact.
- Keep your opinions to within your medical expertise and specialty. Avoid extravagant claims, or stating opinions which go beyond your expert medical knowledge.
Always ensure that the patient has consented to the preparation of the report. In many cases this would be evident from the fact that the patient or patient’s file has been referred to you for this purpose.
Always remember that the report is likely to be used in litigation, and you will be required to substantiate the contents of your report, including your opinions, under oath.
The doctor is asked to assist the court to provide an objective view of the medical situation in relation to the patient. The doctor may be assisting the court to determine the nature of the injury or ailment of the patient, the nature of the damage which the patient has suffered, the prognosis for recovery, and other relevant matters.
In relation to court and tribunal processes, normally the doctor would be issued with a subpoena, requiring the doctor to attend at court at a particular time. Arrangements may be made with the solicitors involved to defer the time for attendance, but doctors should remember that a subpoena is an order from the court to attend, and failure to attend could be a contempt of court.
In giving evidence, the party calling the doctor will conduct the "examination in chief". These are the preliminary questions of the doctor to explain the facts and expert opinions of the doctor in relation to the issues at hand. The "opposition" solicitors will also have an opportunity to "cross examine" to challenge the evidence and views of the doctor.
Doctors should therefore remain objective at all times. Doctors should "stick to the facts". The doctors "expert" opinion should be based on factual and objective grounds.
If the doctor cannot remember all that has occurred, he or she is allowed to review their notes or the medical report to assist in recollection.
If the doctor does not understand a question, he or she should ask to have it clarified.
Obviously court processes can be frustrating, time consuming and protracted. The court process may have little regard for the timetable and scheduling of the doctor's practice.
Nonetheless, expert opinion from medical practitioners is an important part of the legal process. Good, clear, credible evidence of a doctor can "make or break" many legal cases.
If a doctor is in doubt as to whether they must answer a subpoena, or concerned about the nature of the evidence which they are to give, the concerns can be discussed with their MDO representative, or their own legal adviser.