4 minute read
So who is the ideal expert?
In this follow-up to his series of articles on the criminal expert, Dr Mark Burgin BM BCh (Oxon) MRCGP DCH CPE Dip Med Ethics answers a number of questions on what it is to be a GP expert witness.
In your book ‘The Art of Personal Injury Report Writing’ you say that a GP in current practice may not be the best expert for a case. Why is that?
There is a general fallacy that being in current practice is the only way that an expert can know what is going on. Knowledge tests indicate that about 30% of clinically active GPs have deficient knowledge. GPs keep up to date by reading the BMJ in the same way as GP experts.
You have suggested that those GPs are often too busy to keep up to date as a GP and an expert.
When I first started in medicolegal work the judges were tolerant of the amateur expert who relied upon their clinical skills to provide their report. Judges are increasingly critical of experts who are not up to date in the law as well as their area of expertise.
What is the answer to that dilemma? How many hours CPD do experts need to do to keep up with the law?
The knowledge base is growing and it would take between 1,000 and 2,000 hours of study for a doctor to qualify as an expert; however, there are courses with as little as 50 hours. Keeping up to date typically takes 50 hours a year, although many experts do 100 hours of study. As a GP is only allocated 50 hours of study a year they do not have time to study enough law and keep up with medicine.
You studied the law conversion course CPE and a Diploma in Medical Ethics – a total of 2,000 hours. Do experts need that to be qualified?
In my experience many experts who have worked for years as a medicolegal expert have adequate levels of legal understanding. A major problem is that often the most experienced experts are no longer in clinical practice and GPs without the necessary expertise are instructed instead. In complex cases only an expert with qualifications will have the required expertise.
Do you experience any problems with being accepted as an expert?
I try to make sure that my report already deals fully with my experience and expertise, so that the court can see why I am an expert.
Where a GP in current practice is a possibility, I discuss the fit between my skills and the needs of the case and will only proceed if the solicitors are happy with that. Sometimes the other side initially do not agree to the report, but always change their mind when they understand its content.
What do you say when you are challenged for not being in current practice?
On the two occasions where that has occurred the barristers concerned were trying to defend GPs who had fallen well below the standard expected. They asked leading questions containing fallacies, trying to argue that their GPs did not have to follow NICE guidance, GMC Good Medical Practice 2013 and the terms and conditions of service
I explained that all doctors must follow those regulations and there is no range of opinion. I explained that, despite all the advances over the past 100 years, doctors cannot practice safely if they refuse to examine sick patients.
How do you deal with cases where the published guidelines are not clear?
I am careful to recognise a case where the clinical management is changing; for example with appendicitis, where until recently the correct treatment was appendicectomy. Recent research has suggested that antibiotics can be used instead. I need to be aware that there is a range of opinion where one did not exist before. A GP in current practice may not be aware of that change if, for instance, the local care pathways have not changed.
What if the material issues include current practice?
Any case based upon whether a GP was up to date will be weak and any expert – even one in current practice – is going to be challenged. I explain to the instructing solicitor that I am not the right expert for the case. That surprises solicitors, but I prefer to explain why they need a different approach so that they are aware of the problem.
Who are the perfect experts?
There are no perfect experts. Any expert will have strengths and weaknesses, so what matters is the fit. Does the instructed expert have the right skills for the case? That means the solicitor has to know how the case will be decided: is it an ethical case or a knowledge case or a current practice case or a neglect case? The right expert can only be determined by comparing the material issues with the expert’s skills.
Are there any cases where a less than perfect expert is permitted?
The overriding objective is to deal with cases fairly and proportionately. It is likely that the best expert will not be available for any fee supported by the case. In that situation it is essential for the solicitors to find an expert who is the best value for money. In very low value claims the choice may be very limited. q
