One has only to cast their eyes over the case reports in each edition of Casebook to grasp the importance of expert evidence in a clinical negligence claim. Many of our successfully-resisted cases were made defensible because of the strength and quality of expert reports commissioned by MPS.
So what makes a good report? The primary function of a medical expert is to guide the court to a correct decision on questions falling within that expert’s specialised field. An expert should aim to produce a report that is free-standing, which means that the reader must be able to glean the key issues in the case, understand the evidence available and reach a clear understanding of the range of expert opinion, without needing to look at any other document. Most importantly, the expert should be independent and objective. There is absolutely no role for a ‘hired gun’, who is seeking to influence the outcome of a case to suit their own interests.
1. What should a good report include
- A title page – including:
- The date of the report
- The date of the examination
- The identity of the parties to the action
- The full name (and date of birth) of the claimant
- The party providing the instructions
- The nature of the report.
- Numbered pages, short numbered paragraphs and appropriate subheadings.
- Your personal details, name, current post, summary of previous experience, your HPCSA registration number and whether you hold a current license to practise.
- Statement of the opinion you have been asked to provide and details of your relevant knowledge/ experience.
- List of documentation and literature considered and relied upon in reaching your opinion on the case.
The report should also feature a chronology and summary of the relevant evidence:
- Giving exact dates wherever possible
- When referring to important parts of the records, quoting relevant entries verbatim, if possible (identifying it as a direct quote – eg, by the use of italics)
- Identifying disputed facts and stating the sources of the information set out, eg, “history given on admission to hospital on 01.02.2013”
- Explaining relevant technical terms and abbreviations
- Reviewing the evidence for a sufficient period of time before and after the incident/period of alleged negligence – to put the events in context and highlight other relevant features of the history.
2. Where you have undertaken an examination or performed other investigation(s):
- Say who carried out any investigation that you have used for the report, give qualifications of that person, and say whether or not the investigation has been carried out under your supervision
- Record relevant positive and negative findings
- Maintain a clear distinction between the history given, the history recorded in the records, your own findings and your interpretation of those findings
- Focus on the significance of the findings for the claimant’s everyday life
- Give timescales for probable improvement/ deterioration, treatment options available, etc
- Refer back to the pleadings, if appropriate, to ensure that all relevant matters have been addressed.
3. Then, the opinion – there are a number of important points to note:
- Only comment on matters within your expertise
- Comment on each question or allegation of negligence separately, quoting the question or allegation whenever possible
- Where the question/allegation appears to repeat or overlap with another or seems misdirected, explain why and refer to other relevant paragraphs
- Justify the conclusions reached by reference to the evidence in the case, your specialist knowledge and any published references you relied on
- When dealing with an issue on which there are a range of opinions, provide reasons for the view expressed and state those opinions
- Where you take sides in an area of factual dispute, explain why you favour one version over another
- Where there is evidence undermining your opinion, outline that evidence and explain why it is not persuasive.
4. When commenting on the opinions of other experts:
- Summarise the areas of agreement and
- Point to evidence supporting or undermining
the views given
- Remain focused on the facts of the particular case
- Confine your report to the scope of your instructions and
your own expertise
- Distinguish between questions of fact and of opinion
- Distinguish clearly between known facts and
5. In the concluding paragraph:
- Avoid further repetition of the
facts but summarise the opinions
- Return to the issues you have been asked to
consider and/or the pleadings, to make sure
that an opinion has been given on all relevant
matters with proper attention to the legal
tests to be applied
- Conclude with a statement of truth.
6. The law
You must be honest and trustworthy when giving evidence: make sure that any evidence you give or documents you write, or sign, are not false or misleading. You should recognise and work within the limits of your competence, and abide by this guidance even when giving evidence in non-medical scenarios.
7. The role of an expert:
An expert comes to court to pass on the benefits of his or her experience. In South Africa, the judge in a non-clinical negligence case summed up the limits of an expert’s role. In the case, Schneider NO & Others v AA & Another (5) SA 203 (WCC), Judge Davis said: "Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party.
"But that does not absolve the expert from providing the court with as objective and unbiased opinion, based on his or her expertise, as is possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case.
"An expert does not assume the role of an advocate, nor give evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess."
8. The pitfalls
Any expert who oversteps their responsibilities, and ignores the principles as laid out by Judge Davis above, not only risks damaging their reputation and integrity, but also places themselves at risk of a civil claim or complaint to the HPCSA.
As an example from MPS’s own experience, during a claim involving an MPS member the expert for the claimant revealed under cross-examination that he would only get paid if the claimant won. This admission meant his independence and objectivity were immediately in doubt and subject to extra examination.
Other important points to remember include ensuring you are not too close to the subject of the report – such as a friend or previous co-trainees – to guarantee complete objectivity. You should also check whether you have already submitted a report for the claimant – in South Africa there can sometimes be long gaps between individual requests from experts, and MPS has seen confusion arise from this before.
Finally – the case must not be discussed with colleagues and although this may seem an obvious point, MPS has experience of an expert witness talking over their case in a departmental meeting. Your involvement in and all details related to a case must remain completely confidential.
Members involved in expert witness work should keep MPS fully informed about the type of professional work they are doing, so that they have access to the appropriate indemnity at all times.