Medical experts should undergo appropriate medico-legal training before they appear as an expert witness, the Royal College of Surgeons of England has advised in new guidance published.
Medical experts should undergo appropriate medico-legal training before they appear as an expert witness, the Royal College of Surgeons of England has advised in new guidance published.
‘The Surgeon as an Expert Witness – A Guide to Good Practice’ sets out the role a surgeon should play when acting as an expert witness in civil, criminal and coroners’ cases. The guidance comes after two independent reviews – Professor Sir Norman Williams’ Gross negligence manslaughter in healthcare rapid policy review; and the Independent review of gross negligence manslaughter and culpable homicide, led by Mr Leslie Hamilton – highlighted a need to improve the quality and consistency of expert witnesses in gross negligence manslaughter cases.
The Williams Review noted that in the case of the surgeon Mr David Sellu, his conviction for manslaughter by gross negligence was successfully appealed and quashed by the Court of Appeal, ‘in part due to the manner in which expert witness evidence was used during the trial’. The judgment in the Court of Appeal noted that the prosecution asked the expert witnesses the leading question: ‘was this gross negligence?’. This was in fact a question for the jury to consider.
The RCS’s guidance advises surgeons that expert witnesses should not give opinions to the jury upon questions that they are not entitled to answer. For example, a surgical expert would be entitled, if asked, to assert whether or not a surgeon’s conduct (related to a criminal case) equated to substandard care. But whether or not that care was ‘exceptionally bad’ would be for the jury to decide. While the Crown Prosecution Service (CPS) might pose such a question, (hoping for an affirmative reply) the expert should not answer it, since his or her role is restricted to the binary question; substandard care or not.
The RCS’s guidance further advises surgeons acting as expert witnesses that they should:
- Have been a consultant surgeon for at least five years.
- Only take on cases that they encounter as part of their routine practice. For example, it would not be appropriate for a vascular surgeon to give their view on the standard of diabetic care, such as that relating to retinal surgery.
- The same applies to sub-specialisation - if the case turns on an issue lying within a surgeon’s surgical speciality, but outside their own field of work, they should be wary of accepting instructions.
- They should not provide medico-legal services after three years from retirement.
- Have indemnity – anyone who acts as an expert witness is at risk of litigation.
The role of surgeons as expert witnesses is particularly important to ensure that claims for allegedly negligent care are resolved fairly, and as quickly as possible. In 2018/19 NHS Resolution received 10,678 new clinical negligence claims. Overall, claims are falling as a proportion of the number of treatment episodes, but costs are rising. The annual cost of harm for clinical negligence compensation for secondary care in England for 2018/19 was approximately £9 billion.
To download the guidance visit: https://www.rcseng.ac.uk/standards-and-research/standards-and-guidance/good-practice-guides/expert-witness/
