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Becoming an expert witness

There’s a shortage of expert witnesses in medicine – could this be a job for you? Find out more from Dr Rebecca Whiticar on this crucial role

Introduction

After a few years as a new consultant, it may be that you are considering ways in which you can diversify your career to maintain your own personal development, maybe help with financial pressures and help sustain a long career in our current health service. It may be that your specialty does not lend itself to working in a private clinic or hospital and/or that you are looking to take on additional work that you can principally do in your own time around other personal commitments such as childcare. If this sounds like you, then one option you could consider is working as an expert witness. 

What is an expert witness?

We may all have a stereotypical view of what an ‘expert’ should look like or a certain ‘age’ that an expert should be, but the reality is that an expert witness can be anyone with knowledge or experience in a particular field or discipline that is beyond that of a layperson.

Expert witnesses will be instructed by a party (usually a law firm) 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 not have been personally involved with the patient’s case that they are providing evidence (written or oral) on, they are providing evidence because of their specialised knowledge of a specific field relevant to the case.

Whilst an expert is normally instructed by one party (or sometimes both parties in a dispute – otherwise known as a single joint expert), 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.

The courts have stated that: "To be competent as a medical expert, a witness must have acquired by reason of study or experience or both such knowledge and skill in the medical profession as to be better qualified than the fact finder to form an opinion on the particular subject of his testimony”

In my experience the role of an expert witness is vital: early involvement of a good medical expert witness in cases can help reduce costs, help to 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 working as a medical expert witness entail?

Expert medical opinion plays a critical role in a variety of domains, including in criminal, civil, coronial and GMC processes. Such opinion can determine, for example, whether or not 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. In the family courts, medical opinion is relied upon in relation to decisions where the lives and wellbeing of children are at stake.

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 thanks to the new remote working environment, this is now all possible through video conferencing.

Experts will occasionally be required to attend court following a report, but the likelihood of that again depends on which field you are commenting: the vast majority of clinical negligence cases will settle before seeing the inside of a courtroom.

However, as an expert you must always be prepared and have the necessary skillset for giving robust and credible evidence in court. I always remember the tale from a medical negligence solicitor, who said they had instructed an expert witness for years who had provided them with multiple eloquent, well-evidenced and useful medical reports. In one case, however, the expert was finally called to court and in giving oral evidence came across entirely differently from their written evidence, and was not able to withstand cross-examination. Unfortunately, that experience resulted in the expert not being instructed again by that firm, as the solicitors could not take the risk, no matter how small, that they would need the expert to give evidence again in court.

What skills do you need to be an expert and will you enjoy the work?

Whether you will enjoy the work as an expert witness will clearly depend on your own skillset and personality type. I would suggest that if you enjoy critically analysing medical cases and applying legal principles alongside medical best practice and research then you may wish to consider the work. Although this may sound obvious, to be a ‘good’ expert you have to 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 medial evidence.

I would also add that a good expert must act with honesty and integrity, act objectively and independently, and have the maturity to declare any relevant conflicts of interest and admit if the instructions from solicitors fall outside their remit of expertise. “The experienced medical expert has the ability and wisdom to only accept instructions in cases they consider relevant to their expertise.”ii

Ultimately, being an expert witness is no different from being a clinician in that we need to maintain the trust of both the legal professionals we work with and the public.

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What qualifications will you need to be a credible expert?

Despite litigation being an increasing problem within the NHS (in 2020/21 the NHS spent £2.4 billion on clinical negligence claims alone – an increase of 8.7% on the previous year) iii and the fact that it is recognised that medical experts play an important role in trying to resolve litigation, there is still no formal training path to become an expert witness or even formal qualifications that you need to have.

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.

An effort to define what that ‘credibility’ means and what is required from an expert was stated in recent guidance from the UK Academy of Medical Royal Colleges, published in response to a recommendation from the Williams Review into gross negligence manslaughter in healthcare. This guidance states with reference to expert witnesses that:

  • The healthcare professional should have 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
  • Healthcare professionals who act as expert witnesses should undertake 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
  • Healthcare professionals must 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 (CPD) and this should form a part of their annual appraisal.iv

When considering your own credibility as an expert witness I would suggest imagining yourself in a courtroom and explaining to a judge why you feel you are credible to provide an expert medical opinion in this case.

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 frontline myself during that period.

From the legal perspective, an understanding of clinical negligence processes, the legal principles of clinical negligence and the relevant procedural rules, for example – the civil procedure rules (CPR part 35[i]), which govern the role of the expert – are essential.

You would not endeavour to do a practical procedure such as an insertion of a traumatic chest drain without knowledge of the rationale for the procedure, the anatomy, the logistical process and your equipment – writing an expert report is no different, just with an understanding of the CPR part 35 and case law rather than chest wall anatomy.

Where can you start?

I created my own path to becoming an expert witness after attending a few one-day training courses and then by becoming dual qualified in medicine and law while still clinically practising in my specialty, but that is by no means the only way in, and there is no single route.

There are plenty of training options that exist for experts and many private providers offer expert witness training; unfortunately though, often at significant expense. More information can be found on the Expert Witness Institute website.v

With respect to channels to finding medicolegal work, unfortunately instructions often still rely on word of mouth – which means it can be still difficult to get a foot in the door. But once you earn the trust of solicitors the options for work will likely grow exponentially.

There are other options other than word of mouth, however, that include: registration as an expert witness with a professional body or with expert witness directories, contacting law firms who act in the fields of law in which you wish to be considered as an expert, writing articles for publication in professional journals and newsletters, marketing yourself via a website and using social media advertising in the Solicitor's Journal.

As an expert witness, you are paid for the time it takes to prepare, write and discuss your evidence. The BMA provides useful guidance on medicolegal fees and factors to consider when negotiating fees.vi

In 2011, 400 years of immunity for experts was waved in the landmark supreme court case of Jones v Kaneyvii; therefore, it is important to appreciate that a medical expert can be held accountable and you need to have appropriate indemnity arrangements in place, just as you would do in your clinical practice.

How will my role as an expert benefit my NHS practice and my personal development?

As stated in the guidance from the UK Academy of Medical Royal Colleges: “Healthcare professional bodies recognise that an expert witness undertakes an extremely important role in the administration of justice. It can provide interesting and valuable experience for a healthcare professional and at the same time, the performance and behaviour of an expert witness reflects not only the individual concerned but also their wider specialty and profession.”iv

I would suggest that aside from the skillset you acquire working as a medical expert, it is a great way to keep your own medical knowledge in your specialty current. Although you can never be instructed or give formal advice if any negligence cases were to arise within your own department, sometimes having a medic who understands the clinical negligence process and can talk through the legal terminology can be of immense support.

I have witnessed the impact of negligence cases on clinicians who can often feel singled out, unsupported and worried about ramifications for their future career. In my experience, my colleagues and trainees knowing I have a medicolegal background have sought support, even if just informal and over coffee, to help them unpick in ‘medic’ rather than ‘lawyer’ speak what the legal terminology and a negligence case really entail.

In summary

The role of a medical expert witness is incredibly varied, challenging and rewarding. In the UK there is a both a recognised shortage of medical experts willing to take on this important role and concerns about the lack of diversity in the medical expert witness pool, an issue flagged by Medical Protection in its 2022 report Getting it right when things go wrong: the role of the medical expert.viii If you are looking for work that is varied, can work around your existing NHS and other commitments, will help you stay current within your own medical specialty, and you enjoy writing and applying logic, undertaking a portfolio career in expert witness work may be just up your street.

Further learning

Want to become an expert witness? We'll be running webinars for our members on this topic soon. Check here for more information: : medicalprotection.org/uk/professional-development-courses/webinars

References

  1. What is a Medical Legal Expert? | Medical Legal Experts
  2. Papagiannopoulos K. The ideal and impartial medical expert: tips and tricks for a safe medicolegal practice. J Thorac Dis. 2019 Apr;11(Suppl 7):S1009-S1013. doi: 10.21037/jtd.2019.04.68. PMID: 31183183; PMCID: PMC6535473.
  3. NHS Resolution continues to drive down litigation - Annual report and accounts published for 2021/22 - NHS Resolution
  4. https://www.aomrc.org.uk/reports-guidance/acting-as-an-expert-or-professional-witness-guidance-for-healthcare-professionals/
  5. https://www.ewi.org.uk
  6. https://www.bma.org.uk/pay-and-contracts/fees/medico-legal-fees/types-of-medico-legal-witness-and-work
  7. Jones v Kaney[2011] UKSC 13 
  8. www.medicalprotection.org/expert-witness-report
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