The Supreme Court has determined that expert witnesses, in most legal cases, should not be immune from being sued by the party who had instructed them to act. The decision has far-reaching implications for doctors who act as expert witnesses in court and tribunal cases. The Supreme Court decision is an extension of the trend in law to remove immunity from suit for those professionals who act in legal proceedings. The decision affects most experts who give expert opinion in anticipation of legal proceedings, as well as those experts who testify at hearings. Doctors who act as expert witnesses are likely to be caught by this change in the law and must therefore ensure that they carefully assess and address the issues on which that have been asked to give their opinion.
In Paul Wynne Jones v Sue Kaney  UKSC 13 the Supreme Court held (in March 2011) that where a doctor makes an error (by act or omission) that causes damage to the party instructing them, in turn causing loss or damage, the party instructing the expert may be able to recover compensation from the expert.
The Supreme Court held that there is no conflict between the duty to the courts and the duty to the party calling the expert. An expert will still be expected to give their objective opinion but if they arrive at their opinion through error, therefore negating parts of their opinion or nullifying the whole of their opinion, they may be sued for any losses sustained by the party calling them. An instructing party is therfore owed a duty of care and any breach that causes loss or damage may be actionable. Public policy will no longer afford to experts protection from suit.
Doctors who act as experts must now ensure that they act diligently when assessing a case and giving their opinion. Doctors who act as a clinical or other expert should also ensure that they have sufficient indemnity insurance for the work that they undertake and that it covers claims by those instructing them. Standard medical defence organisation cover might not cover expert witness work and so doctors should check their policies as soon as is practicable and obtain additional cover where it is necessary. Doctors should ensure that they comply with the relevant legislative provisions and GMC guidance for experts.
[Read the Full Case Report]
[See also our article on the case of Kumar v GMC , where a doctor held himself out to be a sufficiently qualified expert witness in a criminal case; his conduct was so inadequate that the judge in the trial reported him to the GMC. The GMC held that the doctor had acted recklessly in various regards.]
(Doctors Defence Service July 2011)
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