Medical staff are often required to undertake the difficult journey starting with the subpoena and ending with the testimony in the courtroom as an expert. The information they provide to the judges and the juries is expected to be factual, comprehensive, unbiased, and up to date. To give effective expert testimony, medical staff must recognize the basic differences in the culture between the legal and medical world. They need to understand and follow the basic rules for preparing and providing the evidence in the courtroom, and be aware of the fact that such an undertaking may have significant personal, professional and financial implications for the parties involved. In order to prepare a professional report the medical experts need to develop report writing skills to compliment their clinical knowledge and expertise. Considering that the front line staff in any health care providing organisation is not formally trained to handle the responsibility of testifying as an expert, the journey from the subpoena to the testimony in the courtroom can be very stressful. This chapter provides an overview of the role of the expert in legal matters and the substantial responsibilities that are undertaken in preparing a legal report and giving expert evidence in the court.
Clinical practiceClinical recordsLegal requestJurisdictionNegligence claimsCourt guidelinesImportant considerationsCode of conductClarificationReference materialConfidentialityPublic sector standardsEvidence in chiefCross examinationRe-examination Conflict of interestGiving evidenceTipsErrorsMedia
A good medical expert must serve but one client, and that client should be truth
—Erle Stanley Gardner
It is not advisable to prepare an expert report in an area of practice that is outside of your current scope of practice
There is a code of conduct for experts when preparing a report for legal proceedings specific to each area of law
The testimony of a medical expert must be within the limits of science
There is no substitute for thorough preparation and practice under the guidance of the hospital’s legal advisors
Don’t be overconfident, remember that for every expert there is an equal and opposite expert
The complexity of medical care has increased significantly following the technological advances over last few decades. The long strenuous shifts together with the reliance on complex technology often make it difficult for medical staff to provide that special human touch in the management of patients, and to support their family members. Gaps in communication, written or verbal, are also not infrequent. It is therefore not surprising that the risk of errors, conflict, complaints, and litigations is high under such situations. The purpose of this chapter is to provide some guidance about what is involved in being an expert witness in a legal matter. Essentially the clinician will either be asked to prepare a clinical report or discharge summary where he/she has had direct involvement in the care of the patient/client or requested to prepare a report in an expert capacity commenting on the clinical care provided by another clinician or team of clinicians. Legally and clinically variation in practice does not always mean a breach in the expected standard of care given to a patient.
It is generally recognised that clinical expertise develops over time and exposure to different learning opportunities and is continuous. Specialisation by its nature focuses learning in a particular area and of necessity reduces exposure to other specialised areas of practice. Whilst general clinical knowledge continues to grow throughout a clinician’s working career and is required to enable a clinician to recognise that ‘something is not right and requires further examination’ it does not necessarily make them an expert in all fields.
With these factors in mind it is important to remember that ‘hindsight’ does make diagnosis and treatment planning much easier but it is not available up front to clinical staff. When preparing an expert report, it is essential to assess the standard of care from the position of the clinical staff at the time of providing care and work forward from first contact rather than working backwards from a known diagnosis (Checklist 1) . Developing a working chronology ensures all aspects of clinical care are considered when preparing an expert report.
Checklist 1: Clinical Practice Review
Clinical records demonstrate:
Clinical staff with up-to-date knowledge and skills
Appropriate physical examination of the patient with well documented findings.
A documented treatment plan
Proper instructions for ongoing clinical tests
Complete record of patient observations and medications
Regular medical review with adjustments to treatment plan as necessary
Results from pathology and radiologic examination reviewed and care adjusted accordingly
Evidence of communication across the clinical team
Series of provisional diagnoses in a complex patient leading to a final diagnosis
Post-operative complications from a surgical procedure emerging over a number of days.
Initial Legal Request
The initial contact from a lawyer may be verbal or written and is made to establish if you would be prepared to provide an expert opinion in relation to clinical care in a particular legal matter. This first contact usually provides limited information about the nature of the report and if you agree, the contact will be followed up with a more detailed written legal request. The follow up letter should set out clearly the details of the case including whom the lawyer is acting for and who the parties to the matter are. Careful consideration should be given to the information contained in this letter (Checklist 2). The lawyer will set out their case and provide an overview of the situation. Details about clinical care and allegations of poor care may be made in the letter. The request may direct you to specific issues related to the patient care. Attached to the letter of request should be the relevant clinical records for the particular case. It is essential that you are provided with all of the relevant clinical records to enable you to fully inform yourself of the clinical facts and prepare your report. In addition to patient records there may also be a copy of expert reports previously prepared by other clinicians. If you require additional clinical records and information relating to the patient before you commit to do the report you need to advise the lawyer and request that the information is made available to you. Copies of relevant clinical guidelines and policies may also be necessary to assess the standard of care requirements relevant at the time of the incident.
Take particular note of the date of the initial incident that you are being asked to comment on as the legal position requires that the standard of practice is to be assessed as at the time of the incident and not current practice. For example if you are being asked to prepare a report about care given to a baby at the time of birth note the date of birth. If the date of birth is 1 January 1999, then the relevant standard of practice is what was in place in 1998–1999, including the equipment in use at that time. Additional references may also be required in order to support your opinion on the standard of care that was relevant in 1999.
As a rule do not use abbreviations as these can vary from health service to health service depending on location and type of services offered. It is important to ensure the report provides a plain language interpretation of the clinical condition and care provided as it cannot be assumed that the lawyers and the court have clinical training . Your opinion needs to be formed after careful review of all available documents and clinical records relevant at the time of the incident. As an expert you need to be able to clearly articulate how you reached your opinion and what facts were relied upon to support your view. Clear reference to dates and clinical documents containing the facts that support your opinion is required.
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