Expressing and owning an opinion

16 Jul 2020

In medicolegal cases, it is rare for the legal teams involved to have sufficient specialist knowledge to make a judgement on the medical issues raised by a case. Therefore, they rely on medical experts to provide them with advice. It is the duty of the medical expert to provide the court with an objective and unbiased assessment of the case, based on his or her own professional knowledge. Thus, the expert needs to have sufficient experience in their field of specialism, as well as possessing a good understanding of the relevant condition.   Dr Chris Jenner, Consultant in Pain Medicine and expert witness with more than 15 years’ experience, explores the crucial elements of a robust, rigorous expert report.

A medicolegal case will be based on a range of information, including medical records, reports from other experts and witness statements. The first step in giving an expert opinion is to review this information, acquaint oneself with the facts of the case, including the practice setting, and identify any areas which are under dispute and therefore require investigation. As cases may take some years to reach court, it is important to be aware of what the usual practice was considered to be at the time of the alleged incident, as it may be quite different from current practice. It is also important to bear in mind that not every doctor or hospital has the capacity to adhere to ‘best practice’; instead the opinion should focus on whether reasonable practice was achieved. 

A good medicolegal report should be thorough and contain all of the relevant facts, but it should also distinguish between questions of fact and opinion, and between known facts and any assumptions that have been made. Furthermore, all the available evidence needs to be included, even if it undermines or is in direct opposition to the expert’s opinion. In these circumstances, an explanation as to why it is not considered to be persuasive should also be given. If any information is missing or unavailable at the time the report is written, this must be stated. The expert should also clarify whether their opinion is provisional and therefore may be subject to change, should any missing facts later become available. For instance, it may be necessary to perform a further examination of the patient, and if the findings of this differ from the facts recorded in the documentation, it may potentially alter the conclusions reached.

If any particular issue being discussed gives rise to a range of opinions, each of these should be stated, along with the specific conclusions reached by the expert and the reasons why this decision was reached. Similarly, if it is necessary to take sides in areas of factual dispute, an explanation should be given as to why one version of events is favoured over another. When summarising the opinions of other experts, areas of agreement and disagreement should be identified. In addition, evidence supporting or undermining the alternative views given should be presented. It is important to show that the opinion is the result of a logical thought process, which is based on clear reasoning. 

In order to justify the conclusions reached, the report should refer back to the evidence of the case, the specialist knowledge of the expert who has compiled it and any published material that has been used to form the opinion. Courts tend to prefer standard textbooks over single papers, although evidence-based literature, such as the overviews produced by the Cochrane database, is also viewed favourably. The importance of guidelines in terms of litigation is likely to increase, although their legal status is not entirely clear. Although failure to adhere to a published guideline would not necessarily be viewed as negligent in itself, it would certainly require justification.   

Any expert who gives an opinion in a medicolegal case should bear in mind that he or she may be required to undergo cross-examination by the defence lawyer while under oath in court. Therefore, experts must truly believe in the opinion that they have given and be prepared to defend their position. It is very important that an expert only offers an opinion on matters which fall within his or her field of expertise. Views on other matters are not helpful, and only serve to undermine the credibility of the opinion for which the expert is suitably qualified. A failure to disclose a possible conflict of interest, such as where the claimant is already known to the expert or there is a financial incentive to present a particular point of view, will also undermine the expert’s perceived independence and objectivity. This may make him or her subject to a more detailed cross-examination and it could even jeopardise the case entirely. 

For the majority of medical negligence cases, assessment and outcome relies upon an evaluation of the standard of care given by one doctor by another, potentially more experienced, doctor. While many doctors may be reluctant to give an expert opinion, for fear of being seen to criticise colleagues, expert reports are essential for courts to adjudicate on issues of possible clinical negligence. Doctors have a duty to uphold high standards of care but also, where appropriate, to support the course of action taken by a colleague. Therefore, each opinion expressed needs to be based on a detailed analysis of the available facts. 

About Medicolegal Partners

Medicolegal Partners has a range of expert witnesses covering a number of medical areas.  They are all experts in their fields and experienced expert witnesses.  Find out more about us:

Our range of specialisms can be found here.  Please follow the links to find out more about each expert and to download their CVs.

Further reading:

Gillespie, G. 2014. A guide to writing expert reports. Casebook 22(3):6-7. McLeod, F. 2000. A beginner’s guide to writing medico-legal reports. The Obstetrician and Gynaecologist 2(4):37-40.