Originally published March 2011
Some provinces and territories have changed or are considering changing their Rules of Procedure (also known as the Rules of Court or the "Rules") for expert witness reports in civil actions. The changes generally address two issues: (1) the perception that some experts are biased, and (2) the need to ensure both experts and lawyers understand the role that experts play in the legal process. The changes are the result of increased scrutiny of the role of the expert witness in civil justice reform projects in Ontario and British Columbia, and in forensic pathology inquiries in other provinces.
Those acting as experts should be aware of the day-to-day implications of three areas that have been the subject of discussion—confirming their duty to the court in their report, timing of the report, and information contained in the report.
Physicians who are asked to provide a medico-legal report or to provide evidence in a civil matter should speak in advance with the lawyer who is retaining them. They should confirm what is expected of them and if they will be asked to give opinion evidence at trial.
In several jurisdictions, experts must now confirm in writing that they understand the duty they owe to the court—to give opinion evidence that is fair, objective, non-partisan and within their area of expertise; and to supply the court with additional information or help that is reasonable. Experts in Ontario must additionally acknowledge their duty to the court by signing a form.
These requirements have posed challenges for some treating physicians who are asked to give evidence at trial. While generally not considered expert witnesses, treating physicians may be asked to acknowledge their duty as an expert in writing. This may be the case if they are asked to provide opinion evidence on their diagnosis or prognosis, or if the lawyer intends to qualify them as an expert at trial.
Some treating physicians have voiced the concern that by acknowledging their duty to the court in writing, they may be compromising their duty to the patient. The issue is particularly acute in Ontario, where the form requires that the physician confirm that the duty owed to the court prevails over any obligation to the retaining party, even when that party is the expert's patient. In addition, expert reports in British Columbia must expressly acknowledge that the physician is not an advocate for any party.
Practically speaking, whether an expert acknowledges his or her duty in writing or by signing a form, both confirm that the witness is expected to tell the truth when giving evidence and to not unreasonably advocate for one party or another. Recent cases have highlighted the importance of the judge being satisfied that the expert is sufficiently independent and qualified to give objective evidence that will help the court reach a conclusion.
Timing of the report
The time that lawyers are given to serve an expert's report has changed in some jurisdictions. As a result, experts may be required to produce their reports earlier than was previously the case. Physicians who are authoring a medico-legal report should confirm with the retaining lawyer when it is due.
Information in the report
In some jurisdictions, expert reports must include the instructions given to the expert; a description of factual assumptions; any research that was conducted; a list of every document reviewed; a summary of the range of opinions, where applicable; and the reasons for the expert's opinion within that range. Experts should speak to the retaining lawyer about what information to include.
Disclosing information from the expert's file
Experts may receive a request to disclose all or parts of the file they have compiled on the case. They may be asked for letters from the retaining lawyer stating the facts and issues to consider and, perhaps, for draft reports. Before responding, the expert should first contact the retaining lawyer for advice and direction.
Practical implications for experts
Nature of the opinion
With the renewed emphasis on impartiality and independence, physicians should be diligent when asked to act as an expert. Before agreeing, they should clarify with the retaining lawyer precisely what they are being asked to give an opinion on and consider if they are qualified.
Potential or perceived conflicts can affect a physician's ability to act as an expert. For example, before accepting the role, the physician should inform the retaining lawyer if he or she has a personal relationship with a party in the action, either current or past; if he or she has ever treated the plaintiff; or if he or she has been asked by another party to give an opinion on the case. This minimizes time and expense, and surprises later.
Physicians also need to understand the type of opinion the retaining lawyer is expecting. Expectations can vary depending on the specific request and the arrangements between the expert and the retaining lawyer. These arrangements can be unique and may dictate how much time experts are expected to spend, how they will be compensated for their time (including an acceptable rate), whether they must meet or discuss preliminary thoughts with the retaining lawyer, the documentation required, etc.
Physicians will also want to discuss if they will be expected to provide information and advice verbally or in writing. If they must write a report, they should talk about the issues it must address and when it is due. Being aware of deadlines minimizes stress, conflict and complications. Once the report is submitted, experts should clarify what further work, if any, may be required, including whether a supplemental or rebuttal report will be needed. Experts should ask if they are likely to be required to testify at trial and what they should do with the materials that they have been provided and that they have generated.
More information on the experts' role
Physicians unfamiliar with the general role of experts should consider reviewing CMPA articles and publications, including the following: "Testifying: What it involves and how to do it effectively," "Preparing medico-legal reports," and A Medical-legal handbook for physicians in Canada. Medical specialty organizations such as the Society of Obstetricians and Gynaecologists of Canada also have publications on this topic. Physicians acting as experts should also become familiar with their provincial or territorial regulatory authority's (College's) current statements and policies. Members are encouraged to contact the CMPA if they have a question about their role as an expert.