Legal and regulatory proceedings
Acting as an expert in medico-legal proceedings
An article for physicians by CMPA General Counsel
Published October 2009 IS0998-E
Key issues for physicians to consider when deciding to provide medical expertise in medico-legal proceedings.
Of interest to all physicians
You may be asked during your career to act as an expert in some form of medico-legal proceeding, including before a court, a regulatory authority (College) or another form of administrative tribunal (e.g., workplace safety and insurance board). If asked to act as an expert, you may have questions about what is involved and whether you should agree to the request. The following is a general discussion of the questions the CMPA typically receives from members considering acting as an expert.
Role of experts
Expert witnesses play an important role in most medical cases. They assist those involved in the judicial process to understand and/or decide issues based on often complex medical evidence. Experts are typically requested to interpret and/or provide their opinion on clinical, scientific or technical issues that typically lie outside the knowledge and experience of the average lawyer, judge, tribunal panelist or jury member. Above all else, experts must be impartial and balanced in offering their opinion.
Experts in legal proceedings most often play one of two roles. The first is to act as a consultant to a lawyer, often early in a case. In this role they impart knowledge about the medicine to help assess the merits of the case. In some instances, this expert will not be asked to author a report or to testify. The other role commonly played by experts is to review the evidence, specifically for the purpose of authoring an expert report and/or giving opinion evidence under oath. The expert's testimony is intended to assist the judge or jury to understand the medical issues necessary to decide the case.
You may be asked to provide expert evidence in a variety of legal proceedings. For example, experts are frequently retained in medico-legal litigation cases, criminal trials, College proceedings and workers' compensation hearings. The expert's role in each one of these cases may be different depending on the purpose for which the expert is being retained. For example, in medico-legal litigation, you may be asked to provide your opinion on a specific issue in the case, such as whether the defendant physician met the standard of care, what was the cause of the plaintiff's injuries or what the plaintiff's prognosis is for the purposes of calculating damages. In other proceedings, such as in a workers' compensation hearing, the tribunal or board may ask an expert physician to assess the individual for the purpose of commenting on his/her injury or mental state.
In some cases, an expert may be jointly retained by more than one party to the proceeding. Irrespective of who retains the expert, it does not change the fact that an expert's overriding duty is owed to the court or the tribunal.
Duty of experts
Many physicians feel an ethical obligation to act as an expert. Physicians are generally encouraged to consider acting as an expert in whatever capacity they feel comfortable when they are qualified and available to do so, and when no conflict of interest exists. The CMPA endorses the statement by the Canadian Medical Association in its Code of Ethics that physicians should "recognize the profession's responsibility to society in matters relating to … the need for testimony at judicial proceedings."
Regardless of the nature of the retainer or who pays the account, experts have a duty to provide their opinion in an objective, professional and fair manner. Experts should not act as advocates for the party who retained them. In fact, some provinces, including Ontario and British Columbia, will soon require experts to certify that they understand that their duty is owed to the court and not to any particular party.
Judges have been critical in past medico-legal litigation cases of partisan approaches adopted by some expert witnesses. This invariably results in their evidence being rejected, given reduced weight or the witness's integrity being called into question.
Some issues to consider before agreeing to act as an expert
Before agreeing to act as an expert, there are several issues to consider. Although the relevant issues will vary depending on the circumstances of the case, the following are some preliminary questions you may wish to consider before accepting an expert retainer.
Am I qualified to provide an opinion in this area of medicine?
Consider whether the specific opinion being sought is within your area of practice or expertise. Depending on the opinion you are being asked to give, you may be required to have specific knowledge of the medical practice. For example, if asked to comment on the standard of care at a particular time, consider whether you are sufficiently familiar with the relevant clinical practice guidelines and prevailing view of the medical profession at the time in question.
It is also possible that you might be asked to provide an opinion on issues that do not necessarily relate to the standard of practice. For example, experts may be retained to comment on such issues as the cause of the alleged injury or the extent of the damages being claimed. In these cases, consider whether you have sufficient expertise concerning the subject matter to offer an expert opinion. The evidence of an expert who testifies without the requisite knowledge and/or experience is often discounted or disqualified in favour of another qualified expert.
Am I sufficiently impartial to provide an opinion in this case?
Verify that you do not have an actual or perceived conflict of interest before accepting an expert retainer. There are many different circumstances in which a conflict may arise, including where the physician acted as the opposing party's treating physician or where the physicians had previously discussed the case with another party. Personal relationships with any of the parties involved, beyond merely being colleagues, or with any of the lawyers involved may also give rise to a perceived conflict of interest. If you feel you may have a conflict, raise your concerns as soon as possible with the lawyer or party retaining you.
Do I have the necessary time to complete the task required?
Both the expert and his/her lawyer should ensure that they each have a clear understanding of the relationship and their respective expectations. For example, the parameters of the opinion requested should be understood, as should the time commitment required to complete the opinion, any relevant deadlines and any remuneration issues.
The obligation on a treating physician to provide a report for a patient for the purpose of a medico-legal proceeding does not extend to experts. Unlike a treating physician, experts are not obliged to accept a request to provide a report or to otherwise act as an expert in a legal proceeding. The prospective expert should, however, politely decline the request in a timely fashion so as to facilitate the continued search for an alternative expert.
Knowing what Is expected
Communication between an expert and the lawyer retaining him/her is crucial. Just as the lawyer retaining an expert has an obligation to communicate to the expert in a timely manner the necessary information to enable an informed and educated opinion, the expert also has the responsibility to be forthright and judicious in his/her communication with the lawyer.
The documentation required to provide an informed opinion will depend on the circumstances of each case. The expert should communicate to the lawyer his/her expectations regarding the documentation needed to provide an opinion. This may include the relevant medical records, pleadings and transcripts from examinations for discovery.
Some Colleges and medical organizations (e.g., Society of Obstetricians and Gynaecologists of Canada, Collège des médecins du Québec) have published guidelines for members acting as experts. These may be of general assistance to physicians considering acting as an expert for the first time.
Expert work requires protection
Whether working as an expert for the CMPA or the plaintiff, physicians should maintain their CMPA membership for the length of time they are actively involved in a case.