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M D U Highlights Medico-Legal Expert Witness Work

The Medical Defence Union (MDU), the UK's leading medical defence organisation, has welcomed newly-published guidance from the GMC, Acting as an Expert Witness, which sets out the role and duties of doctors who act as expert witnesses*.

As well as instructing experts on behalf of members in a variety of legal proceedings, including negligence claims and GMC cases, the MDU has also assisted members with ethical dilemmas, complaints and claims arising from their expert witness work and has experience of many of the pitfalls they have encountered.

Dr Peter Schütte, head of advisory services at the MDU said: "Instructing credible experts is central to the work that the MDU does in defending our members, for example in claims and GMC investigations, so we appreciate the qualities necessary to do the job. At the same time we regularly advise doctors on their duties and responsibilities when undertaking the role of medical expert in personal injury or criminal cases and help members with problems arising from the medico-legal work that they carry out, from writing a report to giving evidence in a court or tribunal."

"The expert witness is a key player in most cases, as the court or tribunal will want to hear the opinion of an experienced, impartial medical expert witness to assist in making a decision about the case. In our experience, the vast majority of expert witnesses are perceived as doing a good job, but occasionally there can be allegations - which may or may not have merit."

The MDU has advised hundreds of members on the telephone advice line with regard to expert witness work, and over a recent eight-year period, opened 137 files. During the same period, the MDU assisted with 18 complaints to the GMC and 57 claims arising from expert witness work.

While there is no evidence that these criticisms were justified in all cases, the most common allegations against members were:

-- Giving misleading advice to a court

-- Failure to properly examine papers or the patient

-- Failure to declare a conflict of interest

-- Putting themselves forward as something they were not, eg not being an expert in the relevant specialty.

Dr Schütte continued: "These cases, while unusual, highlight the relevance of the new GMC guidance as it clearly sets out what is required from expert witnesses and we advise doctors to familiarise themselves with the contents. The guidance makes clear that doctors who act as an expert witness should ensure that the instructions they are given are clear and unambiguous and that they restrict any statements to areas where they have relevant knowledge or direct experience and which fall within the limits of their professional competence. Doctors are expected to include all relevant information and give a balanced opinion. However, if there is not enough information to reach a conclusion on a particular point, the GMC says that you should make this clear. Hardly anything in medicine is 100 per cent, so we advise doctors to stick to their guns if they are inappropriately asked to commit to a certainty."

The other key points of the new guidance are:

-- Experts should keep up-to-date in their specialist area of practice (paragraph 15) and be aware of the standards and nature of practice at the time of the incident .

-- If an expert changes their view on a material matter, they have a duty to ensure that appropriate persons are made aware of this without delay (paragraph 13).

-- Experts should not disclose confidential information, other than to parties to the proceedings, without consent, unless obliged by law, ordered by the court or the administration of justice demands it (paragraph 18).

-- All parties should be made aware of conflicts of interest without delay. 'You may continue to act as an expert witness only if the court decides that the conflict is not material to the case.' (Paragraph 19).

Members of the MDU can contact the MDU advisory helpline for specific advice on their duties as an expert witness and on the new guidance.

*Expert medical witnesses can be confused with the professional medical witness. The two are very different but their roles can be closely related. In many trials and hearings, both kinds of medical witness will give evidence. It is a complex topic, but in the simplest of terms, the expert medical witness is instructed by lawyers to provide the court with an opinion, whereas the professional medical witness is a witness to fact, normally in the context of past medical treatment.

About the MDU

The MDU is a mutual, not for profit, organisation owned by our members who include over 50 per cent of the UK's hospital doctors and GPs. Established in 1885, we were the world's first medical defence organisation. We defend the professional reputations of our members when their clinical performance is called into question. Our benefits of membership include insurance for claims of clinical negligence and a wide range of medico-legal advisory services. http://www.the-mdu


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