Failings highlight need for training for medical expert witnesses

[THE SUPREME COURT’S decision in 2011 to abolish expert witnesses’ immunity from suit resulted in instructing parties being far more careful when assessing the suitability of an expert for a particular case. The fact that professionals could now be sued in respect of their actions as expert witnesses further highlighted the importance of undertaking formal expert witness training if acting in that capacity.

In its guidance for clinicians undertaking expert witness work, the Academy of Medical Royal Colleges said: “Healthcare professionals who act as expert witnesses should undertake specific training for being an expert witness and the expectations and responsibilities of this role. Training should be kept up to date with appropriate refresher courses or other activities.”

The guidance was issued in response to the repoprt of the Williams inquiry into Gross negligence manslaughter in healthcare. In the report, Professor Norman Williams says: “It is also vital that experts should have an appropriate understanding of their role in the legal process and of their responsibility to provide objective and unbiased opinion in an investigation or to the court. The panel believes that training should be improved in order to better prepare healthcare professionals who provide an expert opinion or appear as an expert witness.

“All professionals require training to practise in the fields in which they operate and knowledge of the standards needed to do so. It is a notable omission that those putting themselves forward as suitable to provide expert evidence do not need to undergo any training or accreditation in that role.”

The academy’s chair, Professor Carrie MacEwen, said of the guidance: “Being an expert witness is an important and valuable role. It is essential that clinicians acting in these roles are properly trained, fully up to date and act with complete integrity.

“I believe this guidance will help ensure and maintain the required standards as sought by Sir Norman Williams’s review.”

The importance of adequate training in the legal aspects of the expert witness’s work was highlighted by leading trainers Bond Solon following the ruling by a judge that discredited expert Dr Chris Mercier must pay £50,000 in costs for ‘flagrant and reckless disregard of his duty to the court’ and giving evidence that was ‘grossly unhelpful and wholly unreliable’.

Dr Mercier had produced a report and gave evidence in support of a negligence claim against a maxillofacial surgeon. At the end of his evidence, however, the claimant withdrew her claim because Dr Mercier had had to concede under cross examination that he had never trained or practised as a maxillofacial surgeon. He also conceded that the defendant’s expert witness – a consultant maxillofacial surgeon – was better placed to comment on the standards to be met in practice, that he had had no experience in general anaesthetic extraction in over 20 years and that he did not work in a hospital setting.

The judge, Ms Recorder Hudson, was clear that he should never have prepared a report on subject matter in which he had no expertise. She ordered him to pay the defendant's costs because the claim would never have been brought but for his report – the claim had had no chance of success.

Bond Solon pointed to its web-based learning package, Introduction to the Civil Procedure Rules, which takes the expert through their duty to the court and its application at every stage of the court process. It is an essential reminder for the experienced expert witness as well as introduction for those who are new to the work.

As they point out: “Better to be trained than face an order to pay £50,000!” q