In March 2019 the England & Wales Court of Appeal allowed an appeal against a decision to impose a 6-month suspended term of imprisonment for contempt of court on a doctor who was engaged as an expert medical witness in a motor vehicle accident claim.¹
The Court of Appeal agreed that the original sentence was too lenient and that the doctor should have been imprisoned immediately for a much longer term. This is a dramatic outcome indeed, and although extreme the case highlights some important points.
In this case, the doctor had originally examined the claimant 11 weeks after his accident for the purpose of a medico legal report and recorded that the claimant’s neck stiffness had resolved in one week and that the claimant had, by the date of examination, ‘fully recovered’ from his injuries. Following a subsequent request from the solicitors and without further review of the claimant, the doctor’s secretary revised and reissued the report (including a declaration of truth from the doctor) to reflect that the claimant reported ongoing pain and stiffness at the date of medical examination that would, in the doctor’s opinion, persist for six to eight months from the date of the accident. The doctor initially denied having authored the revised report but later recanted. He sought to explain that the original report only recorded the claimant’s acute symptoms and that the revised report was the correct version. The revised report was relied on by the claimant in proceedings against an insurance company, which were adjourned when a paralegal inadvertently disclosed the existence of the original report. The insurance company brought proceedings against the doctor for contempt of court. The trial judge found that the doctor had been reckless, having made no attempt to investigate whether amendments he made to his report were clinically justified. The doctor had subsequently acted dishonestly when providing witness statements as to the truth of his report.
The doctor was found to be in contempt of court for numerous reasons. Of particular concern to the court was the apparent financial motivation, driving the doctor’s conduct, in essence keeping his ‘report writing factory…running at full capacity’.
While this is an extreme example of providing flawed evidence, there are many ways to fall foul of your legal duty as an expert witness. It is important to understand your obligations during this process.
Expert witness – The fundamentals
The use of expert witnesses is ingrained in the Australian legal system and expert evidence is used in court proceedings (civil and criminal), inquests, tribunals and alternative dispute resolution. Courts are required to make determinations in relation to areas of medicine of which they do not have knowledge and, as such, rely on the expertise of doctors. Most doctors will be asked to provide expert evidence at some stage during practice, either as a treating doctor (witness of fact) or an independent expert witness (witness of opinion).
The Good Medical Practice: Code of Conduct for Doctors in Australia², stipulates that practitioners engaging in medico-legal work are required to:
- provide an impartial report;
- be honest and not misleading when writing reports and not omit relevant information deliberately;
- make clear the limits of their knowledge and not give opinion beyond those limits when providing evidence;
- provide accurate, truthful and verifiable information about their experience and medical qualifications; and
- not misrepresent, by misstatement or omission, their expertise.
When acting as an expert witness a doctor’s duty is to provide impartial evidence to assist the court. They should act honestly and not be influenced by any reason, including but not limited to: discrimination, financial gain or the potential outcome of the case.
How to avoid giving flawed evidence
When asked to prepare expert evidence, doctors should ensure they are entirely informed about the medical case. The instructing solicitor should provide comprehensive instructions. It is a doctor’s responsibility to satisfy themselves that they understand what is being asked of them and that they have been provided with all relevant information.
A doctor knows their expertise better than the instructing solicitor. As such, if you are asked to provide an opinion about an area of medicine and you are unsure whether this falls within your area of expertise, you should contact the instructing solicitor to ensure that you understand the medical case. You should not agree to prepare a report unless you are completely satisfied you hold the relevant expertise. If you agree to prepare a report and you later discover that you do not have sufficient information to provide an opinion on a certain point, you should make this clear in your report.
Ensure you have sufficient time to complete the report. Errors occur when doctors fail to set aside sufficient time to read all the material thoroughly and prepare considered reports. When you receive the instructions, check the date your report is due. If you do not think you will have sufficient time, let the solicitor know as soon as possible. They may be able to secure additional time or they may need to engage another doctor.
What happens when the evidence is flawed?
In Australia, expert witnesses have an immunity from liability in civil claims. The immunity does not extend to intentionally untruthful statements, fabrication of evidence or false evidence. A doctor may also face disciplinary action if they fail to take reasonable care when providing and/or giving evidence.
Conditions were imposed and upheld against a psychiatrist who referenced ‘parental alienation syndrome’ in a report written during family law proceedings. The condition is not a recognised psychological disorder according to DSM-V.³
Although a practitioner has an immunity and the threshold for disciplinary action is high, a practitioner who engages in medico-legal work should be conscious of their reputation. Flawed evidence can leave a doctor open to the wrath of a judge, as demonstrated below:
I have in the past been very critical of his reports and nothing I have read in the report tendered today causes me to alter my opinion. His reports suffer from two particular defects. One is that they are virtually identical…The second…that there is little or no explanation as to how he has drawn conclusions.4
In another recent UK case5 the plaintiff claimed that prior to a motor vehicle accident, where she sustained injury to her neck and leg, she was active; attending the gym, swimming, cycling and walking. She alleged as a result of the accident she became inactive, relying on crutches and a wheelchair. The medical expert opined she had neuropathic pain as a result of the accident and in the absence of such would have no mobility issues, be able to work and not require home modification or care.
However, the doctor failed to examine the plaintiff’s medical records, which contained information relating to the plaintiff receiving disability living allowance prior to the accident. Furthermore, the records revealed she had a history of numerous physical and psychological conditions. The judge concluded that the doctor’s evidence was unreliable and flawed. Although no action was taken against this doctor, the evidence was seriously undermined and the credibility of the doctor tarnished.
Key take away points
- Liaise with the instructing solicitor and before agreeing to prepare a report ensure you have certainty in relation to:
a. the medical case; and
b. your expertise as it relates to the case.
- Ensure your report is objective and impartial. It is not a doctor’s role to advocate
- Be accurate and do not put anything in a report if you are unsure. You could be questioned in Court on anything in your report
- Ensure you have sufficient time to consider the material and prepare a considered report
- Adhere to the requirements of the relevant Expert’s Code of Conduct. This should be provided with the instructions from the solicitor.
Providing expert medical evidence is an essential part of our justice system. To be asked for your expert opinion is a privilege held by medical practitioners. However, if not executed appropriately it could lead to lack of professional credibility or even disciplinary action so always ensure your opinions are well considered.
If you have received a request to provide expert opinion and have any uncertainty, contact the Claims & Legal Services team. We are here to help.