BAOMS welcomes new advice from RCSEng for surgeons who act as expert witnesses
22 November 2019
Medical experts should undergo appropriate medico-legal training before they appear as an expert witness, the Royal College of Surgeons of England (RCSEng) advises in new guidance.
The Surgeon as an Expert Witness - A Guide to Good Practice follows the publication of two independent reviews that highlight the need to improve the quality and consistency of expert witnesses in gross negligence manslaughter cases.
Past President North of England Medico-legal Society Ian Martin, and BAOMS former President, welcomed the guidelines: “BAOMS supports the call for surgeons who act as expert witnesses to receive appropriate training. It is important that they do not stray beyond their own areas of expertise, and recognise the role and limitations of the expert as part of the overall judicial process, whether civil, criminal or coronial.”
In England alone the annual cost of harm for clinical negligence compensation in secondary care for 2018/19 was approximately £9 billion, and according to NHS Resolution the costs are rising despite the number of cases falling. RCSEng says that surgeons who act as expert witnesses are the key to the quick resolution of claims for medical negligence.
Key RCSEng guidance to surgeons acting as expert witnesses
Surgeons who act as an expert witness 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. Whilst 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.
- 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 guidance goes on to explain that:
- 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.
- Surgeons should not provide medico-legal services after three years from retirement.
- Surgeons should have indemnity - anyone who acts as an expert witness is at risk of litigation.
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