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THE quality of medical information provided by expert witnesses in legal proceedings is often poor, and may be improved if immunity against prosecution for experts is removed, according to AMA president Dr Andrew Pesce.
Dr Pesce’s comments come in response to a recent United Kingdom Supreme Court judgment that abolished immunity against prosecution for expert witnesses. (1)
Although Australia still provides immunity for expert witnesses, the British case could be used as a precedent if a similar case was brought here.
Dr Pesce said removing immunity might encourage experts to do a better job and therefore protect themselves from litigation. “I don’t think it would be a bad thing. It would make doctors focus on providing reports that were of good quality and that made arguments based on good evidence,” he said.
However, Professor Roy Beran, a neurologist and president of the Australasian College of Legal Medicine, described the UK case as “very disturbing”.
Professor Beran said it might compromise the independence of advice from expert witnesses as they might feel compelled to satisfy clients’ expectations rather than meet their overarching responsibility to the court.
“What this decision seems to imply is that expert witnesses may be forced to act as ‘hired guns’ if they don’t want to be sued,” he said.
Medicolegal expert Bill Madden believes that eventually Australia will follow the UK’s lead.
“The Supreme Court is the highest court in England so it’s quite influential … I would imagine that one day Australia would go down that path,” said Mr Madden, national practice group leader in medical law at law firm Slater & Gordon.
In the UK case, a car accident victim appealed against the expert evidence provided to the court by a clinical psychologist in a joint statement with another expert about the victim’s personal injury claim. The case progressed to the UK Supreme Court, where it was held that immunity against prosecution for expert witnesses involved in legal proceedings should be abolished.
However, the judges did not extend the immunity to defamation.
Mr Madden doubts that there would be a flood of litigation against medical expert witnesses if immunity was removed, because there are so many checks and balances in the system.
“There’s a lot of scrutiny of expert evidence in the courts, and there’s usually more than one expert. It would only happen in an extreme, unusual circumstance where the system falls apart — a rare case, but it may arise,” he said.
Professor Beran said he believed removing immunity would reduce the supply of expert witnesses. Mr Madden agreed this was “a possibility”.
Although Australian expert witnesses currently have legal immunity, there have been instances where medical boards have taken disciplinary action against doctors who have provided erroneous advice.
Dr Pesce said he had substantial experience reviewing expert witness reports, and had written medical advice for about 12 legal cases.
“Too often in my reviews of some experts’ reports I see things that are not backed up by evidence. Often the information is wrong, and not only is it wrong, but there’s no evidence to support it at all.
“It might be opinion but they’re presenting it as fact,” he said.
– Sophie McNamara
1. Jones (Appellant) v Kaney (Respondent) [2011] UKSC 13
Posted 11 April 2011
The response (and logic) of Professor Roy Beran, president of the Australasian College of Legal Medicine IS disturbing: “What this decision seems to imply is that expert witnesses may be forced to act as ‘hired guns’ if they don’t want to be sued,” he said.
I think removal of immunity would have quite the opposite effect. Hopefully it will flush out the ‘hired guns’ who had a free and unchecked run for too long now. If expert reports are not based on science/evidence/practice, insurance companies will be hesitant to hire the authors of these reports – and rightly so – and the quality of the expert reports can be improved. And that is the ultimate goal, one would think. Or did I miss something?
@ Lionel is correct to point out that not all ‘experts’ are equal. However, just as in clinical medicine, there can be legitimate differences of opinion amongst experts, especially when it comes to difficult cases (which those that land in court tend to be). Unfortunately, expert clinicians are often not well versed in the art of causal inference, and many are unfamiliar with legal rules of evidence and their primary obligations to the court.
One way of improving the quality of expert opinion would be to remove immunity for negligence (and in extreme cases professional sanctions might also be invoked, up to and including deregistration, eg, Roy Meadows). Another way would be to do ‘hot-tubbing’ where the experts from both sides are required to meet face-to-face, defend their opinions in front of one another, and reach a consensus.
We unfortunately have too many ‘experts’ who are not. I can’t see an easy way out of this – College lists may not be any better – they will depend on Fellows putting their hand up for unpopular work.
As a subspecialist ophthalmologist, I regularly come across reports that are unequivocally wrong, typically written by other specialists who do not have appropriate subspecialist expertise [the lack never acknowledged in their report].
I often wonder about the doctor whose testimony led the court to believe in Alan Bond’s dementia / incompetence 10-15 years ago.
We do not always have a choice as to whether we give evidence or not. I have on several occasions been subpoenaed to give an opinion regarding patients whom I have treated, both in the family court, litigation cases and criminal cases. I was not given a choice by the legal system, at least two of the lawyers being ambulance chasers, often asked “what if” questions, being asked to criticize colleagues when such was inappropriate.
What is the answer. A panel of experts? – which means a bunch of academic hangers on with little or no clinical experience. Continue with a system where we give our expert opinions from the coal-face with protection from other experts (the same academic hangers on). Nothing is perfect but I prefer the latter. There are too many professors willing to sell their souls as hired guns. In my humble opinion of course.
I would be in favour of some penalties as that it would introduce a certain standard of caution and eliminate the terrible ones. It would certainly eliminate my competition (I have, of course, a vested interest). I am currently suffering from the intervention of the Medical Board of NSW, where the standard is what the majority of peers (rightly or wrongly) believe, not what is scientifically known or true in law. In three cases I gave competent and sound Daubert proof evidence and was reported for having “strange and unusual ideas”. If the standard was science, this could not happen. Such peers would simply not be admitted to a court with proper evidence standards. My colleagues gave evidence based on majority views, misinformed assumptions and pharma science, an oxymoron.
The sooner that a science-based criterion is introduced, the better it will be for courts. It will save a lot of time and money. Those who claim to be experts should have some expert, as opposed to general, knowledge on which to base their claim to specific expertise. Such knowledge is usually epidemiological in nature, especially where causation is concerned. A basic postgraduate degree is rarely sufficient.
These are the standards demanded in USA as a consequence of William Daubert, et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc. Supreme Court of the USA, June 28, 1993, based on Popperian science as opposed to personal opinion and it does eliminate junk science and personal views. The High Court of Australia frequently cites this US decision in its Australian judgements as it has been incorporated in US Federal Rules of evidence and in my view, it should be incorporated in the NSW Evidence Act as well. That would certainly reduce pressure on courts and eliminate a lot of nonsense.
I wonder how many of the commentators have actually read the judgement? (The link is at the end of the article).
Barristers do not have immunity if they act negligently. (This was abolished by the House of Lords in Hall v Simons – see para 37). Nor should expert witnesses.
If expert witnesses discharge their duty to the court properly, the only thing they have to fear is fear itself.
I certainly would not agree that it is reasonable to go after a witness just because the evidence does not suit. It is clearly important to hold the witness to at least the same standards of professional knowledge, integrity and performance that the ‘hapless accused’ is being judge by, if not greater.
Anything less is a travesty of human rights, common sense and common decency which I believe are the basis of International Law.
It is also interesting to muse how may ‘expert witnesses’ may in fact be ‘expert professional bullies’ and the implications of proposed Australian laws in that regard.
Can not come soon enough.
I have seen at least two occasions when utter nonsense (or downright lies) put forward as ‘expert evidence’ was accepted by a judge/panel and lives ruined.
The knowledge behind this ‘evidence’ was of a quality that would have failed a first year medical student.
In fact, a simple straw poll of any number of passing practitioners in the field would have categorically refuted the ‘expert opinion’. Such people should not be able to get away with this. How can it be that the professional standards of one are judge in the light of substandard evidence from another?… It is beyond Kafkaesque and unforgivable.
I agree that there does need to be some system of checks and balances but I am not sure that removing immunity and leaving doctors open to prosecution is the right way to go. I am aware in some jurisdictions that the court can ask that the opposing experts confer and come up with a consensus statement of what they do and don’t agree on. Perhaps this could be encouraged in more cases as one “expert” may not be aware of new evidence or their understanding of the facts of the case may not be quite the same etc. It is already hard enough to find doctors to work in my field of sexual assault, I worry this removal of immunity would make it next to impossible. I believe one of the reasons that doctors fear giving evidence is our lack of training in this field. I’m fairly sure it is not much different today but I know I received no training in being an expert witness or writing legal reports at medical school or as a junior doctor (Qld mid 90’s). I believe this is where we need to start so all doctors have an expectation that this may be required of them in the future and they learn the skills to do it correctly or know where to ask for help. Once this fear is reduced and it becomes part of “what we do” then we will hopefully see an increased level of competence and confidence in this area.
Each doctor in his field is entitled to his opinion. Better qualified doctors are not necessarily correct … and in fact may not recognise the real effect on the plaintiff’s life. Intelligence, perspicacity, common sense and a strong ethic of fairness translates the scientific view for those who are not medical professionals. The judges and arbitrators are quite capable in assessing the quality of an expert witness even if mainly by the reasons they give to support their opinion. Inadequate expert witnesses are soon recognised and their opinions are discarded by the courts or arbitrators; and smart lawyers do not continue to seek their opinions. No need for insurers to change their attitude. In Dr. Pesce’s defence, he has gone off course in solely referring to action against a colleague… a separate and difficult issue. On that issue I fully agree with what he says. It should be debated as a separate, serious and complex subject with entirely different criteria.
Methinks some of us doth protest too much. Anybody doing a lot of medico-legal reports will surely be aware of a small minority of colleagues who do not adhere to neutrality. If through losing their immunity they stop this work then that’s great by me. However, common sense dictates that the system should have safeguards against plaintiff intimidation of experts.
Despite anxiety regarding medical negligence cases the vast majority of medicolegal reports regard patients injured in car accidents and at work. Injured patients deserve justice, and insurers should not have to pay for things not caused by the accident. Who but doctors can work this out? Those who do their best in this deserve protection, particularly when the party requesting the report gets one they don’t like.
I am interested in the responses. Although Dr Beran’s comments regarding experts having an overarching responsibility to the court, in practice things often seem very different.
I have with dismay seen many good colleagues dragged through the courts because of questionable opinions from “experts” who appear to see their role as providing their briefing lawyers an opinion which suits their case as much as possible. My colleague is on the front pages of the newspapers, and on TV reports. When he wins the case, the vindication barely rates a mention.
If a plaintiff’s legal team believes an opinion will potentially damage their case, they will not use that expert’s opinion, and either seek another one or reconsider proceeding with the claim.
As AMA President, I am more interested in improving the quality of opinions and protecting doctors from being sued for the care they provide their patients in good faith on the basis of a flawed opinion than protecting the interests of those providing that medicolegal evidence.
Andrew Pesce
This will be a sorry day for expert evidence in Australia. My face will no longer grace a court room and any conscientious expert witness is likely to change career pathways than to engage in this sort of work with the plaintiffs and defendents all armed with daggers.
Quis custodes custodiet? Who will judge the judges? (actually “who will guard the guards?”). This is just more work for the lawyers.
Medicolegal work is such a “sticky” paradigm, why make it even “stickier”. Why walk into a spider’s web to give evidence on the entangled prey only to end up the prey yourself.
This firstly raises the dichotomy between medical “opinion” and evidence-based medicine. At every expert witness workshop I’ve attended, great emphasis is placed on the differences between medical thinking and legal thinking. The law is much more “black and white” than we are. They don’t understand the intracacies of the doctor-patient relationship (or what remains of it in this day and age). The placebo effect can be measured sure, but its subtlties are a minefield.
The more tort law reform we get, by moving towards a no-fault compensation system, the better, “in my opinion”.
If a college fellow is fit to treat patients, then he is fit to provide an expert opinion. In my opinion, there could be no legal grounds for a college to prevent a Fellow from calling himself an expert, unless he has been investigated for providing an unsatisfactory opinion, in the same way that a Fellow might be sanctioned for poor care of a patient.
Solicitors and barristers should not have immunity if experts don’t.
What misguided legal eagles we seem to have. If the purpose is to have better quality expert opinion, then the same logic says we should be able to sue barristers if they under perform. And maybe even judges. They should be “judged ” not by other legal but “expert” clients who will judge their performance. After all, there must be some control over judges and barristers in the “division of power ” in modern democratic society
This is a very disturbing opinion & Dr Pesce’s likewise. Consider if a doctor is asked to give an OPINION which is unfavourable to the plaintiff; the defence wins & the plaintiff then sues the expert witness, ie, the doctor. I provide evidence-based reports but if this occurs in Australia I will no longer provide such reports. Do they have such legislation in the USA the most litigious country in the world?
I’ve given evidence in court many times over issues ranging from workers’ compensation to murder. I have also written many reports for courts. If expressing my honest opinion in as even and balanced way as possible could have put me at risk of being sued and thus wasted my time and increased the cost of my indemnity insurance I would have done my best to avoid any of it by refusing to see patients I even suspected would have me dragged into giving evidence. I fear, if he has really said this that our President is out of touch with reality.
There is no doubt the court does not adequately define “expert” and leads to instances of self-styled gurus peddling opinion as fact and so distort the merits of a case. Surely national colleges should identify a panel of experts to provide independent opinion to the court. This opinion can be monitored. Litigants may still choose an “expert” from outside this panel but they will be recognised as not independent and carry less weight.
The court is already populated by “guns for hire”, called barristers. We need to be careful to maintain access to currently practising, recognised experts, not be left with cynical, battle-hardened “professional experts” who will pass on the monetary cost of preparedness to step into that glorified debating arena where truth and reputation are there for the destroying.
So if i have this right, the leader of MY professional organisation is trying to REMOVE my legal privilege? Who else is allowed to be sued in this context? Judges? Barristers? MPs? Thanks a million.