Medical Protection has launched its expert witness campaign in Ireland, Your profession needs you. Supporting doctors to become expert witnesses – find out what it might mean for you.
Medical expert opinion is crucial when doctors are faced with an investigation, claim or complaint following an adverse event. It can determine the course of an investigation and the standards doctors are held to.
Given the importance of expert work, it is concerning that there are reported difficulties in finding appropriately qualified experts who can give a balanced, objective and impartial account. The pool of experts isn’t as wide as it could be, and this can lead to a reliance on experts who don’t work in Ireland and with some reports in recent years of “hired guns” bias.
The Law Reform Commission carried out two major reviews in 2008 and 2016 looking at the topic of experts. These reviews concluded that expert witnesses should be under a statutory duty to state the facts and assumptions on which their evidence is based. This report also highlighted conscious bias – where parties, including those looking to build a case against a doctor, shop around for an expert that fits their case.
We therefore thought that it was time to launch a campaign on this very important issue as we believe that encouraging and supporting more doctors to become medical experts could drive out the hired gun bias. We have identified four areas where we would like to see change:
1. Encouraging a wider and more diverse pool of doctors
2. Facilitating and identifying appropriate expert witnesses
3. Education and training of experts
4. Expert witness work to be a core part of a doctor’s role
Encouraging a wider and more diverse pool of doctors
Currently, there are several barriers to undertaking expert work (including time constraints and a wariness of and unfamiliarity with the legal system). A misconception of what an ‘expert’ is may also lead to many doctors avoiding the work or only taking it up at the end of their careers.
We would like to encourage more doctors to become expert witnesses by changing the narrative around expert work.
Expert work may have been viewed by many doctors as ‘legal’ work. This may be one of the reasons why there is often difficult to identify a qualified individual willing to undertake expert work, who has the relevant clinical experience as well as an understanding of the legal process and their role in it.
In our view, it is established doctors who will be able to give a balanced account of the standard of care reasonable if adequately trained and informed of the duties and responsibilities of the expert.
Education and training of experts
As we mentioned above, there are several barriers to expert work, including time constraints, a misconception of what the role of an expert is but perhaps also a lack of available training that is easily accessible. We believe that the HSE could create an open access ‘core knowledge’ module focusing on the role and duties of an expert, permitting access to those working on the private sector solely too. This could be hosted via the HSELand.
Medical Protection also organised two webinars on this subject. The first one covered the importance of expert witnesses in different process, including the (lack of) diversity in the pool of experts. The second webinar went into more detail and included guest speakers as well as our own legal, medicolegal and dentolegal consultants and expert witnesses, explaining their journey and the importance of expert work. Recordings of both webinars will be available via our online learning platform, accessible through our website medicalprotection.org.
Raising awareness of the duties and limitations of an expert as well as the purpose of it being to give a balanced account of the standard of care expected, rather than a critique of a colleague’s work may also encourage more doctors in Ireland to take up this work, avoiding reliance on experts from the UK.
Facilitating and identifying appropriate expert witnesses
The identification of appropriate witnesses with the relevant knowledge and skills who are willing to act as expert witnesses in medical cases in Ireland has proven difficult. We believe that training, encouraging and supporting more doctors to become expert witnesses is key.
However, once doctors have completed the relevant training – perhaps via HSELand – we believe it would be useful for the HSE to maintain a list of individuals who have undergone the training, divided by specialty and without promoting anyone in particular.
This will benefit all parties involved in clinical negligence litigation, as well as complaints and regulatory investigations, as it will facilitate the appointment of experts in Ireland who are familiar with the system. We believe that the creation of a list of individuals with expertise in the different specialties could help.
The above is a summary of our campaign which includes recommendations for the HSE, the Medical Council and doctors themselves. Everyone from regulators and employers to doctors has a part to play in the process. Our aim is to change the way medical expertise is viewed and to widen the pool of experts for the benefit of healthcare professionals, patients and society as a whole. You can read our full list of recommendations at medicalprotection.org.