The role of a medical expert witness is a vitally important one. There is an onus on them to provide an independent, expert opinion based on their experience, their examination of the evidence (often including an examination of an individual) and the facts of the case. As such, there are many factors that are needed to become what is perceived to be a “successful” medical expert. In this article, I will attempt to break down some of these factors in a little more detail.
In general, the context of this article is pertaining to medical experts that deal with cases of personal injury and clinical negligence that are more complex and have a higher notional value in relation to damages. The court expects an expert witness to have an indisputable knowledge of the field in question and to have no personal interest in the case that might affect their judgement and therefore the outcome of the case. The instructing parties also expect these qualities, along with others such as, the ability to communicate clearly, provide efficiency and quality in report writing, a forensic approach to the examination of all evidence (e.g. medical records, surveillance etc.) and a balanced and sensible opinion.
There are of course many other factors that could determine success, as well as those listed here, but that article would be too long to write!
What Is Success?
For purposes of this article, in no particular order I will deem success in terms of the following:
- Commercial: experts that are receiving regular instructions, generating revenue and profit from their medio legal practice.
- Ratio: a balanced ratio between claimant and defendant work where possible (close to 50:50 if possible).
- Respect: that the experts themselves are respected for their veracity, their forensic, balanced approach and for how they use their knowledge and experience to produce high quality reports.
- Longevity: the ability to develop, maintain and sustain the above over a longer period of time.
Not all medical experts enter the role to become commercially successful. However, it is one of the elements that many experts look for as an outcome, particularly as they become more experienced.
Some factors impacting commercial success are:
Promotion: the more an expert is discussed, publicises their work and promotes their expertise, the more likely it is they will be considered by the instructing parties. In today’s market, this includes actively engaging with and promoting via email or on social media, utilising platforms such as LinkedIn. Ensuring that instructing parties have a truly clear idea of the case types and the specific expertise brought to bear by an expert, is also important. Instructing parties often have brief time frames to operate in and so need to have all the information quickly.
Venues: additionally, the more venues experts can offer for appointments, especially when they are spread evenly across the country, the greater the probability of instruction.
Cash flow: an often neglected but essential element for medical experts to attempt to control. Instructing parties will have their own terms for payment that do not always synchronise with those of the experts. Obtaining payment and keeping on top of money owed can be challenging.
Medical experts are usually instructed either via the clamant, defendant or as a single joint expert.
As a general rule, most experts begin their career (in personal injury at least) instructed via claimants. The instructing party should not matter because of the independent nature of the medical expert’s role. However, the reality is that a skewed ratio on either side can often cause the perception of bias where none exists. If experts can work towards a ratio that is more evenly split between the two then any inference of bias is more difficult to make.
That being said, it can be challenging to achieve equilibrium. Introductions to and instructions from the “defendants” (insurers, NHS and their various panel solicitors) are not that easy to obtain. Medical experts occasionally need assistance to accomplish this.
Gaining the respect of instructing parties is a different measure of success and is not just related to receiving a plethora of instructions. There are other factors that lead to this.
Knowledge and experience: unarguably, one of the most important elements to the making of a respected expert witness is their knowledge. The key is in the title, “Medical Expert”. Without this knowledge how can they opine on a case? This knowledge is symbolised by their clinical experience, often by whether they are currently working in clinical practice, any educational credentials and how they are regarded in the medical field. Though not essential to still be working as a clinician, it is preferred by instructing parties (and the court).
Perhaps the hardest piece of knowledge for an expert witness to acquire is understanding their individual boundaries and being confident enough to defer to another speciality. For example, a pain management expert may defer to their psychology/psychiatry counterparts in chronic pain cases when the overriding theme is deemed to be a mental disorder/incapacity.
Forensic: the expert’s report is based on the evidence provided. Therefore, any well-respected expert would be first and foremost, forensic in their examination and review of all the evidence.
This includes the examination of medical reports/records, diagnostic imaging etc. Reviewing surveillance/video evidence where appropriate and, of course, in examining the individual claimants when necessary. This attention to detail in the research phase of the reporting process, helps to ensure that the final product is to a standard that would stand up in court. The most common (and most successful) way to undermine an expert is to highlight where certain points of evidence have been ignored or were omitted from their reports.
Balanced: an expert is not instructed to pick a side, but to take all disclosed evidence into account and opine in the context of the balance of probabilities. This includes the ability on occasion, to address counterparts under examination, in an assertive manner. That said, the expert must also possess the ability to reassess their opinion, in the light of certain new evidence and provide an answer that might not be aligned with their original findings. A solicitor/barrister’s aim can sometimes be to manoeuvre the expert to give a less assured or wavering response in order to diminish their credibility.
The common denominator that the experts who achieve these have, is the right support system in place and though a balanced and forensic report is the goal, there are other factors that need to be taken into consideration for this process to successfully occur.
Communication: whether it is the report itself, conducting an examination with the claimant, conference with a counsel or explaining a point in court; excellent, clear communication is a necessary skill for any expert witness. An expert that cannot demonstrate this will struggle to inspire confidence in their professional judgement.
Their clarity in explanations must also be transferable to the reports themselves, including perfect grammar and excellent use of the English language.
Organisation: successful medical experts that are in high demand cannot operate efficiently or produce multiple, high-quality reports without the involvement of other people. As such, good diary management, travel coordination, excellent administrative support (and especially recently, IT support) are required to avoid errors such as double booking, Zoom/Teams malfunctions at either end and tardiness for meetings with claimants, instructing parties and counsel. The administrative support should extend to formatting, proofreading, fact-checking and finalising reports before drafts are sent to instructing parties.
Medical experts that have these building blocks in place should go on to attain longevity and have successful careers.