As clinical negligence lawyers, we know all too well that the quality of the medical expert evidence can win or lose a case. Hence the importance of careful selection of the expert (including looking at reported cases for judicial remarks on the expert), clear instructions, sharp analytical skills upon receipt of the report to assess its strength and weaknesses, and a willingness to politely but robustly challenge the expert in conference.
In June 2018, Sir Norman Williams produced a review of gross negligence manslaughter in healthcare, commissioned by the Department of Health and Social Care in England. The review listed some concerns with the conduct and ability of expert witnesses in the prosecutions of clinicians, and recommended that the Academy of Royal Medical Colleges should ‘lead work to promote and deliver high standards and training for healthcare professionals providing an expert opinion or appearing as expert witnesses.’ (p.21)
In May 2019, the Academic of Medical Royal Colleges produced guidance for medical experts entitled ‘Acting as an expert or professional witness’. The introduction states that ‘any healthcare professional acting as a witness who fails to meet the standards set out in the guidance is not considered to be meeting the expectations or demonstrating the values of their profession.’
The guidance is full of good advice. It stresses the importance of neutrality, the avoidance of bias, and the duty to help the court rather than the instructing party. Only last week a medical expert asked in conference “what would you like me to say to help the client?” She misunderstood the expert’s role in the litigation. Several cases have criticised experts for descending into the arena and acting as an advocate for the instructing party. The expert’s duty is to the court, however sympathetic the patient.
The guidance encourages experts to take all reasonable steps to check that the information is accurate and cautions against omitting relevant information. In Williams v Jervis  EWHC 2346 (QB), the judge said this about the Defendant’s neurological expert, Dr Gross:
‘119. Although Dr Gross has dealt with the claimant’s case voluminously there are clear indications of a lack of thoroughness and a failure to spend adequate time in properly analysing the case’
This observation also reminds us that the length of a report is not necessarily indicative of its quality.
A prudent lawyer will perform his own checks to ensure there are no inconsistencies, gaps or omissions in the expert’s report.
The Academy guidance states that ‘all information and opinion must reflect the limits of the competence of the expert providing the report’. Again, experts who suffer from a tendency to stray outside their area will find their credibility severely damaged under skilful cross-examination at trial. In Jubair Ali v Caton & MIB  EWHC 1730 (QB), the judge looked unfavourably at the Defendant’s neuropsychology expert: ‘Particularly damaging, in my view, was his willingness to enter into areas where he lacked any valid expertise.’
The guidance underlines the importance of reports based on reasoned opinion. The temptation to accept an expert’s favourable opinion without question should be resisted. Why has he or she formed this opinion? What’s the evidence for it, in the medical records, hospital guidelines, or in the medical literature? What might the other side’s expert say in response?
The guidance recommends that the expert should have the necessary clinical knowledge, training and experience to act as an expert witness, and should undergo specific training to work as an expert with appropriate refresher courses to keep up to date.
Possible conflicts of interests should be disclosed. Such conflicts are particularly common in specialties with relatively few practitioners, such as neurosurgery and rhinology. In EXP v Barker  EWHC 1289 (QB), the Court noted:
‘Failure to make early disclosure, particularly of an obvious conflict, also tends to raise a natural suspicion that the witness has, most exceptionally, become so compromised that the evidence must be altogether excluded.’
A pre-existing professional relationship need not be a bar to acting as an expert but it should be disclosed well in advance to avoid unpleasant surprises at trial. A few lines in the report may be all that is necessary.
Solicitors should consider attaching the Academy’s guidance with their instructions. It is only 17 pages long. Medical experts should read it carefully to improve the quality of their reports, promote the administration of justice, and reduce the likelihood of negative judicial comments should the matter reach the courtroom.