Expert Witness Doctors and Misconduct as an Expert Witness
Registered Medical Practitioner Expert Witnesses whose approach is reckless or incompetent or otherwise deficient are likely to face GMC investigation and subsequent fitness to practise proceedings before the MPTS. Doctors who take on expert witness work will now have to ensure a high level of competence and a greater understanding of the area of law in which their expert opinion is to be given.
In the case of Kumar v General Medical Council (GMC)  EWHC 2688 (Admin), the High Court held that the GMC’s FTP panel’s findings that the doctor had been guilty of misconduct because of reckless conduct and various other deficiencies in a number of regards would stand, as there was nothing wrong with the GMC (now MPTS) panel’s approach to the case before them or their written determination.
Referring to Preiss v General Dental Council  1 WLR 1926 the appeal court [at 58] confirmed that misconduct ‘does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence.’
The appeal court confirmed [at 59] following a careful reading of GMC v Meadow  EWCA Civ 1390 that: ‘rarely, absent bad faith or recklessness, will the giving of honest albeit mistaken expert evidence amount to misconduct…[that]…does not mean that misconduct can only arise in cases where recklessness or bad faith are proven. The overriding test remains that in Preiss. …the actual giving of evidence in court, oral or written, or the preparation and content of a report for use in the court, may be of such a nature or degree of incompetence or negligence that it amounts to misconduct without bad faith or recklessness, as the Court of Appeal recognises.
The appeal court also stated [at 72] ‘The panel’s reasoning is based on its view, with which I entirely agree, that it was dealing with an “outstandingly bad” case of misconduct’.
The Kumar case provides a strong warning to doctors who undertake expert witness work that they ought to ensure that they are competent to undertake specialist expert witness work; that they take appropriate steps at each stage of a case to ensure that their conduct is reasonable; and that all salient matters are properly considered and adumbrated, with any controversial view or inadequacy in their materials being flagged up to the court or tribunal. There are not only risks to their own client, of an expert taking the wrong approach; there is also the risk that the court will be misled, leading to an improper adjudication, based on an unreliable opinion of the expert, due of the unrecognised failings of the expert.
See also our analyis of the case of Pool v GMC (2015) and the expertise required by experts who hold themselves out to be and expert in a particular field.
For the basic principles by which an expert witness should operate, see the case of Ikarian Reefer ( 2 Lloyd’s Rep. 68). Also, the case of Anglo Group plc v Winther Brown & Co. Ltd. (2000) EWHC Technology 127, which interprets and explains the principles set out in Ikarian Reefer. See also the current GMC Guidance for Clinical Expert Witnesses, which provides useful guidance to doctors about their professional duties and responsibilities when acting as expert witnesses.
See also our article on Doctors who Instruct Experts in GMC Proceedings
Doctors Defence Service can provide advice to doctors who undertake expert witness work on aspects of the law and expert witness procedure, to assist the doctor in their work. Doctors Defence Service provides confidential expert witness training and advice on the law and legal principles to doctors who undertake expert witness work. Contact us on 0800 10 88 739 or use our Contact Form.