Doctors Acting as Expert Witnesses

Doctors’ Duties When Acting as an Expert

Medical doctors may from time to time consider acting as an expert witness in the courts and tribunals in the UK and abroad.

The GMC has issued guidance to doctors who act in the capacity of expert witnesses: GMC Guidance for Experts (pdf) and there are additional duties according to the court or jurisdiction the doctor is appearing in. By way of example, in England and Wales, expert evidence is governed by the Civil Procedure Rules (Part 35) and Criminal Procedure Rules (Part 33), which experts must observe. See also the GMC’s general guidance for doctors called as witnesses in legal proceeedings, where doctors are not being called as an expert but are giving factual evidence, say for example connected wth the care of a patient they had responsibility for on a shift.

Experts will also need to be aware of the permissible communications and contact that they can have with the party instructing them, and the duties of care and liabilities of being an expert witness.

Ideally, an expert should undergo expert witness training, before providing an expert report or providing expert testimony. There are a number of organisations that provide suitable training in the UK. Training should be in the writing of reports, and the delivery of oral testimony, at the very least.

Doctors must ensure hat they are competent in the area of practice or on the subject they are commenting on. See our articles: Doctors Must Truly Be Experts in Their Field  and Expert Witness Doctors Can Be Subject to GMC Disciplinary Proceedings.

For guidance to doctors generally, who wish to instruct an expert in GMC proceedings, see our atticle: Instructing a Defence Expert in GMC/MPTS Cases

In a non-medical negligence case Igloo Regeneration (GP) Ltd & Ors v Powell Williams Partnership [2013] EWHC 1859 (TCC), indemnity costs were awarded against a party that relied upon an expert who was said, by the judge, to have provided an opinion that lacked logic:

“24. I expressed the view that, certainly in the case of Mr Frood, their quantity surveyor [being an expert in the case], there was a clear lack of transparency in his written evidence and indeed in his oral evidence until what I think I called “the relative twelfth hour” in paragraph 73 of the judgment. This related to Option 0, which was the remedial scheme which it was said was the primary case being put forward, this being based on appropriate remedial work being necessary to resolve any compression failure problem that there was or might well be and valued as at May or June 2003. Mr Frood in his report, apart from providing two or three headline figures for Option 0, provided no explanation as to how he had got them. He simply produced overall figures, which came to some £850,000. It was clear from open exchanges between the experts that Mr Renaudon was concerned about Option 0 and felt unable to quantify it. That was a perfectly legitimate concern for him to raise and Mr Frood was clearly very reluctant to provide any explanation for his figures.

25.How it could have been thought that any informed judge could make a decision on the basis of the figures put forward for Option 0 without some at least verbal and preferably numerical explanation as to how Mr Frood had got to the figures that he had I simply do not understand. When he gave his evidence, over which the Claimants of course had no real control as to what he said in the witness box, he was, in my judgment, in even greater difficulties because I had asked near the beginning of the trial that the two quantity surveyors should get together with the assistance of the engineering experts as necessary to work out what was involved in Option 0. They produced very belatedly (and I do not criticise them for that, but just before they were due to give evidence) a further joint statement. It emerged that all that Mr Frood had done, I assume of his own initiative, was to take his original figure and pro-rata it through much more detailed explanations for what remedial work was likely to have been involved. It was only really at the very last minute that he explained that he had actually got his figures from two jobs which his firm had been involved in some years ago which gave him the basis for putting forward the figures that he had done.

26. I do not suggest that the Claimants were party to Mr Frood’s thought process, but it must have been abundantly clear that there was no explanation about and there was no transparency in these figures and his evidence, perhaps unsurprisingly in the light of his reluctance to explain where he got his Option 0 figures from, seriously undermined any confidence I could have in the evidence which he gave. It was, therefore, unsurprising, that I preferred the evidence of Mr Renaudon.

27. I am very concerned about that. It does seem to me that the Claimants and their professional team must have been aware of the very real risk at least that there were matters being put forward by their quantum expert which were not, at least on the face of the exchange reports, justified and therefore justifiable as a matter of logic or research on the part of Mr Frood. It perhaps then is unsurprising when the judge who has been involved in this case reaches the views that he has done in relation to quantum.

28. It does seem to me that a substantial amount of cost and effort was expended as the result of the putting forward the evidence of an expert whose reasoning for that evidence did not appear anywhere in his exchanged reports. That is extremely unfortunate. (June 2013)”

Great care must therefore be taken by an expert to explain all reasoning, numerical and statistical claims in a logical fashion, so as to avoid criticism. For an example of alleged misuse of statistics by an expert and the way the GMC and civil courts approach such matters, see the case of General Medical Council v Meadow [2006] EWCA Civ 1390. in which the appeal court (within the minority opnion) rehearsed the principles (taken from the case of the The Ikarian Reefer [1993] 2 Lloyds Rep 68, at 81-82), by which an expert should provide their opinion:

‘1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.’

In a minority opinion, (one of the three appeal judges) was of the view summarised below that Professor Sir Roy Meadow was guilty of serious professional misconduct, whereas the majority opinion held that he was not guilty of serious professional misconduct. Each of the judgments is worth reading to understand the approach that different judges might take to alleged failures of experts.

Civil Procedure Rules (CPR) Part 32

In some circumstances, the civil court will protect its own process by bringing (or allowing a party to bring) contempt proceedings against anyone who makes or causes to be made a false statement that is to be used in civil proceedings. (See also Part 81, Part 8, and Part 23.)

CPR Part 32.14 reads as follows:

“False statements

32.14

Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.”

Expert Witness Bias and Conflict of Interest Considerations:

In Towuaghantse v General Medical Council (Rev 2) [2021] EWHC 681 (Admin), Mostyn J was asked to consider the appeal of a doctor who alleged that the GMC expert was biased. He stated (at paras 37, 41 & 42):

“37. In this case the GMC relied on the written and oral expert evidence of Mr Naved Alizai, a consultant paediatric surgeon. He produced no fewer than five reports: 22 May 2017, 8 March 2019, 14 October 2020, 26 October 2020, and 30 October 2020. He also gave oral evidence. It is certainly true that the language that he uses in his report is not the measured, temperate, moderate and balanced prose that one is accustomed to reading from an expert witness. On the contrary, his language is colourful, rhetorical, intemperate and unrestrained. It certainly made for interesting reading. The reason, as the witness candidly accepts, for the strength of his language is because he feels so strongly that the appellant was guilty of gross professional misconduct….

41. On the facts of this case, I cannot say that the MPT’s approach in applying the tests of actual and apparent bias to the appellant’s application to disqualify Mr Alizai for want of independence, was materially wrong. Given the critical importance of his evidence, which was likely to be highly influential, if not determinative, it was right (or at least not wrong) that this high test was applied. Actual bias is confined to the position where it is shown that the expert has a direct personal interest in the outcome of the proceedings which is other than de minimis. Apparent bias will be found to exist where the reviewing court or tribunal, attributing to the reasonable man knowledge of the relevant circumstances and adopting a broad approach, assesses on behalf of that reasonable man that there is a real danger of bias.

42. I am fully satisfied that the MPT rendered a correct ruling in response to the challenge by the appellant to the independence of Mr Alizai. The strength of his feeling does not betray the existence of a direct personal interest in the outcome. There was thus no basis to find that there existed actual bias. As for apparent bias, it was inevitable that the appellant and the witness would know each other; the pool of paediatric surgeons in this country is small and there is much common acquaintanceship. The fact that Mr Alizai knew some of the consultants at the RVI is neither here nor there. Nor is the fact that he did some of his training there. The MPT was right to conclude that there was no real danger of actual bias.” (March 2021)

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Further illustrations of Sentencing for Contempt

North Bristol NHS Trust v White [2022] EWHC 1313 (QB) – a case setting out comparative case law on sentencing for contempt. In the present case, a six month sentence of immediate imprisonment was imposed. The judge noted (at para 33):

33. In October of 2018 the Trust instructed surveillance agents to video Miss White and they carried out surveillance between the 11th of October and the 26th of October. That surveillance showed Miss White visiting Tescos, Sainsburys and a Variety store called B&M. She drove to and from these stores, getting in and out of her car freely and easily. She walked around the stores without any apparent limp, slowness or disability. She bent down and sorted through clothes in the back of her car. She bent down and looked at calendars in the Variety store and she walked with a dog on a lead carrying various items. It was apparent to any objective observer of those videos that Miss White’s complaints made to various medical and other experts and reproduced in the experts reports, signed by those experts under CPR part 35 with statements of truth, were false and misleading.

(May 2022)

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Doctors Defence Service can provide legal advice to expert witnesses on the processes of the courts and tribunals, and on law and procedure, and provide expert witness training. Contact Doctors Defence Service on: 0800 10 88 739