Establishing a Successful Medico-legal Practice
17th March 2020
Understanding Your Costs
31st March 2020
In my previous post, I outlined some important factors to consider before starting your own medico-legal practice. Here, I would like to explore the criteria that make someone a good expert witness. In a court decision from February 2020, Judge Claire Evans in Manchester ordered Firas Jamil, an expert witness, to pay £89,000 on costs to the defendant in a clinical negligence case. Outlining her decision, the Judge characterised Mr. Jamil as not a “very good expert.” While I shall not explore this reasoning behind the decision of the court in depth here, as others have done a better job of that, I do want to discuss the concept of a “good expert” in more detail and explore some of the pitfalls that Mr. Jamil encountered as well as some steps you can take to avoid falling victim to the same mistakes.
Keep up to date with clinical practice.
As I have mentioned previously, it is important not to rely solely on income from medico-legal work as that may give the appearance of a “hired gun”. Relevant clinical practice is important for keeping abreast of new developments in the field and if these are relevant to the case under review, especially when it comes to cases concerning clinical negligence.
An expert witness cannot testify to the correct standard of care if they were not in clinical practice at the relevant time. Mr. Jamil had retired from his clinical practice in 2017 for health reasons. In my opinion at that time he should have reviewed his medico-legal practice including whether to accept new cases or to review the cases where he had given opinions previously. Conversely, if you do decide to continue serving as an expert witness having fully retired from clinical practice, it is important to be candid about your expertise and to make clear you are opining on the standard of care at the time of your active practice.
Remain impartial.
Giving medical opinions does not mean supporting your client no matter what. It is your job to give your opinion based on the facts available to you to the best of your knowledge and independently of the litigation being pursued.
In the above-mentioned scenario, the presiding judge stated that in her view, the claimant supported by Mr. Jamil was “unlikely to succeed in her claim” and that there was no evidence another expert would have positively supported the claim. The expert’s job is not to support the case of their instructing parties, but rather to help the court by giving an impartial and balanced opinion including matters that may alter that opinion. Remember that duty when you are preparing a written report or giving oral evidence.
Be confident in your expertise.
The case for which Mr. Jamil served as a witness involved a surgery he had only performed twice, leading him to admit he may not have been in the best position to give an expert opinion. Only agree to provide expert evidence on cases within your practice and expertise. Moreover, before starting on a case, make sure you have good knowledge of relevant legal tests, such as the Bolam and Bolitho tests (which confounded Mr. Jamil), normally used in England & Wales for assessing the appropriate standard of reasonable care in negligence cases.
It is also important that the expert keeps abreast of the requirements in England to comply with the Civil Procedure Rules that apply to experts (CPR part 35).
Ensuring you have the necessary level of expertise will also allow you to be able to express yourself clearly and logically. It is essential that lay persons and experts alike to be able to understand your evidence. Additionally, remember to provide sufficient reasoning for your opinion based on the relevant standards of care for every opinion you have formulated.
Following these basic tenets should ensure both the success and a good reputation for your medico-legal practice. Being a good expert has less to do with the amount of expertise you have and more to do with how you utilize your expertise and apply it in a manner most relevant to your particular knowledge. If you are looking for additional guidance, the General Medical Council and the Academy of Royal Colleges established excellent guidelines for expert witnesses.
2 https://www.litigationfutures.com/news/unfit-expert-hit-with-89k-third-party-costs-order
3 https://cllegal.co.uk/resources/bolam-test/
5 https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
