Roles and responsibilities of medical expert witnesses
http://www.100md.com
《英国医生杂志》
Seek training, know the rules, take out insurance, and be rigorously impartial
After the erasure from the medical register of Professor Sir Roy Meadow on 15 July 2005, doctors acting as expert witnesses may want to remind themselves of their duties and of what might happen if they fail to discharge those duties. Doctors wishing to rise to this challenge would do well to seek training, and many such courses are advertised on the internet. This editorial deals principally with the roles and responsibilities of experts in civil litigation in England and Wales. That said, the principles are broadly applicable to litigation in the criminal and family courts and, to varying degrees, to litigation in other jurisdictions.
Expert witnesses can take sage guidance from the judgment of Mr Justice Cresswell in the "Ikarian Reefer."1 This case involved a Panamanian vessel that ran aground and caught fire; the insurers argued that the vessel was the subject of arson by the owners, and in this regard they relied on expert evidence. The case heralded important changes in the use of expert witnesses. Mr Justice Cresswell's guidance (which is paraphrased in the box) has largely been incorporated in the Civil Procedure Rules.2
A joint expert
The Ikarian Reefer case was decided at a time when experts were usually instructed individually by each party rather than jointly by both parties. Nowadays, unless there is reason for doing otherwise, the parties in civil litigation will usually be required to instruct only a single joint expert.3 The role of joint expert demands competence and rigorous impartiality. In particular, where there is a range of opinion, the expert must summarise that range and given reasons for his own opinion.4 A joint expert bears heavy responsibility, and some lawyers are unhappy with the possibility that a poor quality expert might, in effect, decide a claim without having a full understanding of the relevant legal issues.5 Joint experts would do well to ensure that the duties set out in the Ikarian Reefer case are second nature to them.
In addition to such core duties and responsibilities, experts might well need to comply with certain procedural requirements specific to their jurisdiction (such as a verification of reports by a statement of truth). Experts should ensure that those who instruct them make them fully aware of all relevant procedural requirements.
The procedural requirements under the Civil Procedure Rules are unlikely to change after the Meadow case, but the criminal equivalent is still in the early stages of implementation, and the part relating to expert witnesses is still being written. Once complete, the Criminal Procedure Rules will set out—with utmost clarity—what will be expected of an expert in a criminal case.
When things go wrong
Most experts do an excellent job. But what can happen to the few who do something wrong? An expert witness who failed to comply with a procedural requirement would usually face no more than embarrassment, but failure to take heed of the guidance given in The Ikarian Reefer might lead to more serious consequences. The first and most insidious sanction would be loss of reputation. On the whole, experts are instructed on the basis of their reputation, and experts who fail in their duties will quickly be dropped from medicolegal work. Those who are not dropped may wish later that they had been. To take a recent example,6 a High Court judge found that an expert clinician had come to a "quite staggering clinical conclusion" because he had failed to put himself in a position to know properly the facts on which he ought to have based his evidence. A finding such as this would not be an enhancement to an expert's curriculum vitae.
Civil Procedure Rules for joint expert witnesses in England and Wales1 2
Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced by the exigencies of litigation
An expert witness should provide independent assistance to the court by way of objective and unbiased opinion to matters within this expertise. (Under the Civil Procedure Rules, it is an express requirement that the expert's duty to the court over-rides any obligation to the person from whom he has received his instructions or by whom he is paid1)
An expert witness should never assume the role of an advocate
An expert witness should state the fact or assumptions on which his opinion is based. (Under the Civil Procedures Rules, it is an express requirement that an expert's report states the substance of all material instructions on the basis of which the report was written2)
An expert witness should not omit to consider material facts which could detract from his concluded opinion
An expert witness should make it clear when a particular question or issue falls outside his expertise
If an expert's opinion is not properly researched because he considers that insufficient data are available, then this must be stated
If, after exchange of reports, an expert changes his view on a material matter, having read the other side's expert's report or for any other reason, such change of view should be communicated to the other side without delay, and when appropriate, to the court
CPR rule 35.3.
CPR rule 35.10(3).
Adverse judicial comment might be embarrassing, but disciplinary proceedings are much more damaging, and experts must avoid these at all costs. On the whole, disciplinary sanctions would be imposed only if there was a gross dereliction of duty. That said, one trial judge referred a non-medical expert to his professional body for giving "biased and irrational" evidence.7
Experts practising in England and Wales should be aware that their reports must be verified by a statement of truth. The Civil Procedure Rules allow proceedings for contempt of court to be brought against a person if he makes a false statement in a document verified by a statement of truth without an honest belief in its truth.
An expert can be ordered to pay costs. In a case in which millions of pounds worth of costs were at stake, Mr Justice Peter Smith made the following comments concerning the alleged poor conduct of an expert psychiatrist: "It seems to me that in the administration of justice... it would be quite wrong of the Court to remove from itself the power to make a costs order... against an expert who, by his evidence, causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court."8 Experts would be wise, therefore, to ensure that they have suitable insurance against the possibility of being ordered to pay such costs.
Immunity
It is not all bad news for experts, however. At present, experts in most jurisdictions enjoy immunity from suit in relation to evidence given at trial, including evidence given in reports.9 This is true of evidence in civil and criminal trials.10 On the basis of the law as it presently stands, therefore, it is unlikely that an expert could be sued for damages.
It would be a shame if potential medical experts were discouraged from giving evidence simply because of one or two high profile cases in which medical expert witnesses have been disciplined. That said, the Meadow case will probably discourage some doctors from giving evidence. If this happens, justice will be poorly served.
Mark Friston, barrister specialising in clinical negligence and litigation funding
Kings Chambers, Manchester M2 6BA
mfriston@kingschambers.com
Competing interests: None declared.
References
National Justice Compania Naviera SA v Prudential Life Assurance Co Ltd (No1) 1 Lloyd's Rep 455.
Civil Procedure Rules 1998. Practice Direction to Part 35, sections 1.1 to 1.6. www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part35.htm (accessed 1 Aug 2005).
Peet v Mid Kent Healthcare NHS Trust EWCA Civ 1703.
Civil Procedure Rules 1998. Practice Direction to Part 35, section 2.2(6). www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part35.htm (accessed 1 Aug 2005).
BBC News Online. What future for expert witnesses? http://news.bbc.co.uk/1/hi/uk/4637687.stm (accessed 1 Aug 2005).
Phillips v Phillips EWHC 1887 (Ch), per Peter Smith J.
Pearce v Ove Arup Partnership Ltd IPD 25011.
Phillips v Symes EWHC 2330 (Ch).
Stanton v Callaghan QB 75 CA.
Darker v Chief Constable of the West Midlands Police 3 WLR 747.
After the erasure from the medical register of Professor Sir Roy Meadow on 15 July 2005, doctors acting as expert witnesses may want to remind themselves of their duties and of what might happen if they fail to discharge those duties. Doctors wishing to rise to this challenge would do well to seek training, and many such courses are advertised on the internet. This editorial deals principally with the roles and responsibilities of experts in civil litigation in England and Wales. That said, the principles are broadly applicable to litigation in the criminal and family courts and, to varying degrees, to litigation in other jurisdictions.
Expert witnesses can take sage guidance from the judgment of Mr Justice Cresswell in the "Ikarian Reefer."1 This case involved a Panamanian vessel that ran aground and caught fire; the insurers argued that the vessel was the subject of arson by the owners, and in this regard they relied on expert evidence. The case heralded important changes in the use of expert witnesses. Mr Justice Cresswell's guidance (which is paraphrased in the box) has largely been incorporated in the Civil Procedure Rules.2
A joint expert
The Ikarian Reefer case was decided at a time when experts were usually instructed individually by each party rather than jointly by both parties. Nowadays, unless there is reason for doing otherwise, the parties in civil litigation will usually be required to instruct only a single joint expert.3 The role of joint expert demands competence and rigorous impartiality. In particular, where there is a range of opinion, the expert must summarise that range and given reasons for his own opinion.4 A joint expert bears heavy responsibility, and some lawyers are unhappy with the possibility that a poor quality expert might, in effect, decide a claim without having a full understanding of the relevant legal issues.5 Joint experts would do well to ensure that the duties set out in the Ikarian Reefer case are second nature to them.
In addition to such core duties and responsibilities, experts might well need to comply with certain procedural requirements specific to their jurisdiction (such as a verification of reports by a statement of truth). Experts should ensure that those who instruct them make them fully aware of all relevant procedural requirements.
The procedural requirements under the Civil Procedure Rules are unlikely to change after the Meadow case, but the criminal equivalent is still in the early stages of implementation, and the part relating to expert witnesses is still being written. Once complete, the Criminal Procedure Rules will set out—with utmost clarity—what will be expected of an expert in a criminal case.
When things go wrong
Most experts do an excellent job. But what can happen to the few who do something wrong? An expert witness who failed to comply with a procedural requirement would usually face no more than embarrassment, but failure to take heed of the guidance given in The Ikarian Reefer might lead to more serious consequences. The first and most insidious sanction would be loss of reputation. On the whole, experts are instructed on the basis of their reputation, and experts who fail in their duties will quickly be dropped from medicolegal work. Those who are not dropped may wish later that they had been. To take a recent example,6 a High Court judge found that an expert clinician had come to a "quite staggering clinical conclusion" because he had failed to put himself in a position to know properly the facts on which he ought to have based his evidence. A finding such as this would not be an enhancement to an expert's curriculum vitae.
Civil Procedure Rules for joint expert witnesses in England and Wales1 2
Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced by the exigencies of litigation
An expert witness should provide independent assistance to the court by way of objective and unbiased opinion to matters within this expertise. (Under the Civil Procedure Rules, it is an express requirement that the expert's duty to the court over-rides any obligation to the person from whom he has received his instructions or by whom he is paid1)
An expert witness should never assume the role of an advocate
An expert witness should state the fact or assumptions on which his opinion is based. (Under the Civil Procedures Rules, it is an express requirement that an expert's report states the substance of all material instructions on the basis of which the report was written2)
An expert witness should not omit to consider material facts which could detract from his concluded opinion
An expert witness should make it clear when a particular question or issue falls outside his expertise
If an expert's opinion is not properly researched because he considers that insufficient data are available, then this must be stated
If, after exchange of reports, an expert changes his view on a material matter, having read the other side's expert's report or for any other reason, such change of view should be communicated to the other side without delay, and when appropriate, to the court
CPR rule 35.3.
CPR rule 35.10(3).
Adverse judicial comment might be embarrassing, but disciplinary proceedings are much more damaging, and experts must avoid these at all costs. On the whole, disciplinary sanctions would be imposed only if there was a gross dereliction of duty. That said, one trial judge referred a non-medical expert to his professional body for giving "biased and irrational" evidence.7
Experts practising in England and Wales should be aware that their reports must be verified by a statement of truth. The Civil Procedure Rules allow proceedings for contempt of court to be brought against a person if he makes a false statement in a document verified by a statement of truth without an honest belief in its truth.
An expert can be ordered to pay costs. In a case in which millions of pounds worth of costs were at stake, Mr Justice Peter Smith made the following comments concerning the alleged poor conduct of an expert psychiatrist: "It seems to me that in the administration of justice... it would be quite wrong of the Court to remove from itself the power to make a costs order... against an expert who, by his evidence, causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court."8 Experts would be wise, therefore, to ensure that they have suitable insurance against the possibility of being ordered to pay such costs.
Immunity
It is not all bad news for experts, however. At present, experts in most jurisdictions enjoy immunity from suit in relation to evidence given at trial, including evidence given in reports.9 This is true of evidence in civil and criminal trials.10 On the basis of the law as it presently stands, therefore, it is unlikely that an expert could be sued for damages.
It would be a shame if potential medical experts were discouraged from giving evidence simply because of one or two high profile cases in which medical expert witnesses have been disciplined. That said, the Meadow case will probably discourage some doctors from giving evidence. If this happens, justice will be poorly served.
Mark Friston, barrister specialising in clinical negligence and litigation funding
Kings Chambers, Manchester M2 6BA
mfriston@kingschambers.com
Competing interests: None declared.
References
National Justice Compania Naviera SA v Prudential Life Assurance Co Ltd (No1) 1 Lloyd's Rep 455.
Civil Procedure Rules 1998. Practice Direction to Part 35, sections 1.1 to 1.6. www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part35.htm (accessed 1 Aug 2005).
Peet v Mid Kent Healthcare NHS Trust EWCA Civ 1703.
Civil Procedure Rules 1998. Practice Direction to Part 35, section 2.2(6). www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part35.htm (accessed 1 Aug 2005).
BBC News Online. What future for expert witnesses? http://news.bbc.co.uk/1/hi/uk/4637687.stm (accessed 1 Aug 2005).
Phillips v Phillips EWHC 1887 (Ch), per Peter Smith J.
Pearce v Ove Arup Partnership Ltd IPD 25011.
Phillips v Symes EWHC 2330 (Ch).
Stanton v Callaghan QB 75 CA.
Darker v Chief Constable of the West Midlands Police 3 WLR 747.