Issue 14 / 18 April 2011

WHAT should happen if an expert witness is negligent? A reconsideration of that question by the United Kingdom Supreme Court (formerly known as the House of Lords) marks a significant shift away from the protectionist approach previously adopted there and which, for the moment at least, still applies in Australia.

Medical professionals are frequently called on to assist the courts by providing evidence, not simply of what they saw, heard or did (like most witnesses) but of their opinions on matters within their expertise.

So it was, in the precursor litigation to the UK case of Jones v Kaney, where two experts — one a consultant psychologist and the other a psychiatrist — had been asked to prepare a joint witness statement for a court, relating to a motor accident claim where the injured person claimed to have suffered a post-traumatic stress disorder (PTSD).

One of the experts, the psychologist Dr Sue Kaney, signed the joint report, which said the injured man’s psychological reaction after the accident “was no more than an adjustment reaction that did not reach the level of a psychiatric disorder of either a depressive disorder, or post traumatic stress disorder”. This was a departure from Dr Kaney’s earlier opinion that the man did have PTSD.

That change of opinion could have been excused if it was reasoned, perhaps because of some new material. However, Dr Kaney later conceded that she had signed the report even though it did not reflect what she had said in the joint meeting with the other expert and even though aspects of it did not reflect her true view.

But it was too late to change the report and the injured man settled the compensation claim for a significantly reduced amount. He then sought to recover from Dr Kaney the shortfall in compensation.

In a majority decision, the UK Supreme Court overturned a line of expert witness immunity authority dating back, in some form, to 1585. The court held that an expert witness was not immune to being sued for professional negligence.

The decision was that the injured man was entitled to bring a claim against the psychologist for the financial loss that resulted from her signing the joint statement without the exercise of reasonable care. That loss would, of course, need to be proven as being due to a lack of reasonable care and be quantified.

It is important to note that in this case the claim was by a person against their own expert, not against an expert who provided a contrary opinion for someone else. Presumably the expert had been paid a fee for that service, so there was an alleged breach of contract as well as negligence.

The UK Supreme Court decision is not directly binding on Australian courts. There are presently some differences in approach to immunities between the two countries in other areas, such as barristers.

However, the reasoning of the UK Supreme Court majority is persuasive and we may well see a similar shift in approach here.

The Medical Protection Society, one of the two major medical defence organisations in the UK, issued a media release about the decision at the time of writing. However, the Medical Defence Union has not commented on the decision.

Interestingly, neither organisation has commented on the question of whether the professional indemnity cover offered to medical practitioners would extend to negligence in the expert evidence process.

Perhaps we will soon see expert witnesses retained under written contracts, with clauses that seek to limit their liability for negligence.

Presumably there will be few experts who fail to take reasonable care when involved in the expert evidence process. In civil claims involving medical experts, where settlements are common, an alleged financial loss may be hard to quantify.

However, if the expert evidence was in the context of a criminal prosecution where a person was wrongly imprisoned, the compensation sum could be very substantial indeed.

Mr Madden is the National Practice Group Leader ― Medical Law with law firm Slater and Gordon, and is an Adjunct Fellow at the Law School at the University of Western Sydney.

Posted 18 April 2011

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