Private doctors are increasingly being asked to edit their expert reports in civil claims. Dr Emma Green and Angelicka Dom Paul discuss when it is appropriate to do so and warn of the risks of failure to comply with their duty to the court.
Doctors acting as expert witnesses are considered to be experts in their field of medicine.
Guidance from the Academy of Medical Royal Colleges,1 published in response to a recommendation from the Williams review into gross negligence manslaughter in healthcare, outlines the expectation that experts should be adequately trained for being an expert witness and undertake continuing professional development relevant to both their role as a clinician and as an expert witness.
Although there is no definition of the number of years of practice required to become an expert, it is usually considered that this should be an established consultant with ten years’ experience. It is unlikely that an expert with less experience would be instructed by solicitors.
While this article considers expert witnesses acting in civil claims, the general principles of candour and probity apply to those acting as experts in other capacities such as the Family Court or inquests, although the role of an expert in other courts will vary.
Experts instructed in civil claims in England and Wales are governed by the Civil Procedure Rules (CPR), with part 35 relating specifically to experts and assessors.
Supplementary information for experts is contained within Practice Directions 35 (PD35). Experts must follow the requirements of the CPR to comply with their duty to the court.
The GMC has published guidance for doctors acting as a witness in legal proceedings and outlines to experts that ‘if your instructions are unclear, you should ask those instructing you to explain. If the instructions are still not clear, you should not provide expert advice or opinion’.
When is it appropriate to amend a report?
An expert may be called upon to write a report at any time in the life span of a case from the initial stages, during the course of the pre-action protocol, once proceedings have been issued and mid proceedings.
In turn, an expert may be asked to change their report as the case develops and more evidence emerges.
The whole purpose of an expert report is to assist the court to understand issues that are part of the expert’s area of expertise, and that relate to the issues which the court needs to determine to resolve the case.
When an expert receives any request to amend a report they need to understand why and question in their own mind whether the amendment will in any way mislead the court. This is in accordance with the GMC guidance referenced above.
Three permissible scenarios
The Civil Justice Council guidance for experts is clear about amending reports. It considers that there are three scenarios when amending a report may be appropriate:
- As a result of an exchange of questions and answers;
- Following agreements reached at meetings between experts. Although, in reality, this is rare and experts should ensure that any changes in their opinion are recorded in the agreed note following their discussion, as opposed to amending a report;
- Where further evidence or documentation is disclosed; for example, after witness statements are served or even following the service of other expert reports.
The key point within the guidance to experts is that any amendments must not distort the expert’s true opinion.
Solicitors instructing experts often ask experts to change their reports to clarify points, amend the form of the report and may ask the expert to expand upon issues; all of which are permissible, provided that the suggestions don’t change the expert’s true opinion.
Applying correct test
Experts may be asked to ensure they are applying the correct test to the factual content of the case, with Bolam, Bolitho and Montgomery being the usual three key cases of relevance in civil medical negligence claims.
Experts acting for defendants are often asked to prepare their reports in response to allegations contained within the Particulars of Claim and those acting for a claimant may be asked to comment upon a defence – both often include a narrative or factual background.
An expert may well find that there are relevant elements in the claimant’s history that are inaccurate or missing and feel conflicted on what they can and cannot say within their report.
The overriding duty of the expert is to the court and all aspects of the patient’s medical history that the expert considers relevant should be included.
Risks to doctors
GMC guidance for experts reminds doctors that serious or persistent failures that put the public trust in doctors at risk will jeopardise registration.
Claims and complaints can be, and are, brought against experts. So they need to ensure they obtain appropriate protection for medicolegal work from their indemnity provider.
From October 2020, experts are required to sign a statement of truth; a declaration which has arisen from the case of Liverpool Victoria Insurance Co. Ltd v Zafar .
The expert, Dr Zafar, included information in his report at the request of the instructing solicitors, which directly contradicted his own examination findings.
As such, the Court of Appeal ruled that any expert witness who is found to be either dishonest or reckless as to the truthfulness of their reports would receive a custodial sentence.
There are some circumstances where it may be reasonable for experts to amend reports.
But it is important to clarify all requests and ensure reports are written for the court, not the lawyers.
Financial remuneration or concerns over being instructed again for future claims should also not influence any report that an expert provides.
Private doctors interested in medico-legal work should not, however, be discouraged from taking on work as an expert witness. It is an important role which can also offer an opportunity to expand your knowledge, challenge yourself and reflect on your own clinical practice.
Dr Emma Green (left) is a medico-legal consultant and Angelicka Dom Paul (right) a litigation solicitor at Medical Protection