Dr Sophie Haroon, Medicolegal Consultant at Medical Protection, details the role and duties of being a medical expert and how it is an important part of a doctor's professional responsibilities.
Expertise is the mantra of modern medicine - Atul Gawande
Ever thought of becoming a medical expert? What do you think of when you hear those words?
A gavel banging on the desk in a court room?
A silver-haired judge glaring at you over their spectacles?
For a start, gavels only appear in auction houses, never in the court room (unless it’s some BBC drama). And though most judges are over 50, this is not too far from the demographic of most hospital consultants – neither of which would probably profess to silver hair or the need for glasses.
So, what really is a medical expert, what do they do, how do they get there, and why become one?
Medical experts are crucial to many different legal processes. They can assist in clinical negligence claims, regulatory matters, Inquests and even criminal cases.
The role of a medical expert is to provide the court with an independent opinion on the clinical issues involved in a case to help the court make a decision on questions falling within that expert’s specialist field. Their role is to assimilate the facts of the case, consider the questions asked of them, and formulate an opinion on the clinical issues based on their experience and qualifications.
Before one thinks of that gavel again, a word of context. Less than 5% of clinical negligence ever make it to the court room. So, when we talk about an expert providing expertise to the court, it is about providing expertise on the subject they are commissioned for, bearing in mind they need to give impartial, independent evidence, uninfluenced by the pressures of litigation and over-riding any duties to the instructing solicitors.
Crucial to being an expert is the ability to write a report, considering the facts of the case, current guidelines at the material time, and one’s own experience of the issue at hand. The report should be analytical, objective, accurate and balanced. In clinical negligence for example, they are used by solicitors to assess the likelihood that a claim might be successful so there is no room for ‘sitting on the fence’.
What an expert might be commissioned to comment on can vary greatly. In clinical negligence matters, they may be asked to give an opinion on whether a doctor’s actions were of the standard expected of a clinician with similar skills, training, and experience – this is about breach of duty. They could be asked to comment on what resulted from the breach of duty – this is about causation. Or they can also be asked to provide an opinion on a patient’s current condition and their likely prognosis after the alleged breach that led to their alleged injury.
In GMC cases, they will be concerned with providing an opinion on a doctor’s fitness to practise and at Inquests their duty is to the coronial court to assist them in their inquisitorial process.
Importantly, experts should only accept instructions on an area that they are appropriately qualified and experienced in, and where they have no conflicts in interest. They should also have appropriate indemnity in place to cover their medicolegal work.
Knowledge, skills, experience, being up to date with guidance and protocols, and being in ‘good standing’ all add up to the features required of an expert. There’s no prescriptive length of time on experience and given the dwindling pool of experts, Medical Protection has started to consider those with at least two year’s consultant or general practice experience as potential experts.
Expert witness training is crucial and there are many reputable providers out there who can help doctors to develop the required knowledge and skills for this field. Experts need to understand the principles of clinical negligence, the legal framework for experts as laid down in the Civil Procedure Rules, and what the GMC states on this matter. This is about medicine and law so an expert must be equipped for both.
Being an expert is not only crucial to the legal process but it is intellectually challenging, expands their knowledge, adds variety and reflection to their career, enables them to interact with the legal profession, and can be financially positive.
At Medical Protection we believe that acting as a medical expert is an important part of a doctor’s professional life and should be recognised as such. This year we are launching a campaign to address the barriers to accessing quality experts, empowering and encouraging more doctors to act as experts, calling for a unified system to register them, encouraging expert witness training at all stages of postgraduate medical education, and promoting the concept that as the duties of an expert are so important for doctors, patients and society as a whole.
This role should be recognised and supported by employers as part of their clinical work – not as a bolt on. Ultimately, our goal is to help more doctors become experts, so creating a more diverse pool of them for the benefit of the profession.
Medical Protection will be working with different healthcare bodies and organisations including NHS organisations, the regulator and the Academy of Medical Royal Colleges. More communications will follow and we invite you to keep an eye out for them and consider this highly interesting field when the opportunity arises in your own career.