Expert witness work – could this be a role for you? Dr Rebecca Whiticar shares her experiences.
We all reach a point when we start considering ways in which we can diversify our careers, including exploring challenging and rewarding personal development options that can work around other personal commitments.
Working as an expert witness could be one of those options. Expert witnesses are instructed by a party to provide their specialist knowledge by way of an opinion on a particular issue, set of issues or facts in a case to help resolve a dispute.
An expert witness will have had no personal involvement with the case they are providing opinion on; they are providing opinion because of their specialised knowledge of a specific field relevant to the case.
While an expert is normally instructed by one party, an expert’s overriding duty is to assist the court with the ultimate outcome of a dispute by providing a report that is independent, objective and unbiased.
In my experience, the role of an expert is vital and early involvement in cases can help reduce costs, align claimants with realistic expectations and lead to earlier resolution for all parties. Lawyers will often tell you a good expert can ‘make or break a case’.
What does the role entail?
Expert medical opinion plays a critical role in criminal, civil, coronial and GMC processes.
Such opinion can determine, for example, whether the Crown Prosecution Service pursues a conviction for gross negligence manslaughter against a doctor following an incident or error that leads to the death of a patient.
It can also, more broadly, dictate the standards to which doctors are held.
The life of an expert witness can be incredibly varied depending on both the specialty and area in which you work.
In my specialty of emergency medicine, my expert role mostly involves providing written reports that give an objective opinion on a claimant’s allegations of breach of duty at the very early stages of a claim, to aid early resolution if possible.
Most of this work is done in my own time at home, but occasionally the cases will progress to joint expert conferences or conferences with the legal teams. Prior to Covid-19, these were in person, but this is now all possible through video-conferencing.
While most clinical negligence cases will settle before seeing the inside of a courtroom, occasionally experts will be required to attend court following a report, so it is important to be prepared and have the necessary skill set for giving robust and credible evidence in court.
How will I know if I will enjoy the work?
Whether you will enjoy the work as an expert witness will depend on your own skill set and personality.
If you enjoy critically analysing medical cases and applying legal principles alongside medical best practice and research, then you may be well suited.
Although this may sound obvious, a ‘good’ expert should enjoy writing reports and be able to read large quantities of medical documentation, with the ability to home in on the important and relevant facts.
Solicitors I have worked with have always stated that the most valuable attribute in a medical expert is a clinician who can write clearly and succinctly, logically explaining their rationale for their opinion, backed by relevant medical evidence.
I would also add that a good expert must act with honesty and integrity, act objectively and independently, have the maturity to declare any relevant conflicts of interest and admit if the instructions from solicitors fall outside their remit of expertise.
What will I need to be a credible expert?
There is no formal training path to become an expert witness or even a requirement for formal qualifications. However, at the end of the day, an expert witness’s overriding duty is to the court and therefore the expert and their evidence must be considered credible to that court.
The Academy of Medical Royal Colleges, in response to a recommendation from the Williams review into gross negligence manslaughter in healthcare, defined credibility and what is required from doctors acting as experts:1
The necessary clinical knowledge, training and experience to act as an expert witness. What this means in terms of role, qualification or length of experience will vary between professions.
Individual professional bodies may choose to provide further guidance in respect of their profession. However, the Court will need to be satisfied that the professional has the level of expertise for their evidence to be accepted.
Specific training for being an expert witness and the expectations and responsibilities of this role.
It should incorporate the principles of this guidance and be appropriate to the individual clinical profession and specialty.
Training should be kept up to date with appropriate refresher courses or other activities.
Undertake and demonstrate appropriate activity relevant to their clinical expertise and legal aspects of the expert witness role as part of their continuing professional development and this should form a part of their annual appraisal.
Credibility, in my opinion, is linked to experience at a senior level within your relevant medical specialty, combined with an understanding and application of the legal principles of clinical negligence and a current knowledge of the systems in which we work.
Ongoing involvement in clinical work helps to ensure that experts are up to date and allows for a more realistic assessment of what is ‘reasonable’, as opposed to ‘textbook’ practice.
Those working within a system are best placed to understand its challenges and imperfections. System issues often play a key role when things go wrong in medicine.
They inevitably impact on the care provided by a doctor and so deserve consideration in all situations where a doctor’s practice is under scrutiny.
For example, I would not myself feel ‘credible’ to provide an opinion on medical negligence cases during the pandemic had I not been working on the front line myself during that period.
From the legal perspective, an understanding of clinical negligence processes, the legal principles of clinical negligence and the civil procedure rules (CPR part 35) which govern the role of the expert are essential and this would be included in training.
Dr Rebecca Whiticar (right) is a medico-legal consultant at Medical Protection