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A brief insight into the work of a medico legal expert witness

7 October, 2019

Author: Jacquie Torrington, Lecturer in Medical Ultrasound, City, University of London

Justice

Medical Ultrasound Awareness Month (MUAM) is a great time to talk about something a little different. My niche ultrasound related activity is the craft of 'expert witnessing'. 

As a pastime it beats my other obsession (baking), being better for the waistline. But, like ultrasound practice, being an expert witness can be bad for anxiety levels, so you may wonder why anyone in their right mind would want to do it. 

My area of clinical practice is obstetrics and gynaecology and most of my expert witness work to date has been in cases of wrongful birth. These are usually instances when a fetal anomaly has not been detected and the parents say had they known of the anomaly they would have terminated the pregnancy. Obstetrics is the most litigious area in the NHS, but I have noticed an increasing number of non-obstetric ultrasound cases recently.

Expert witnesses assist the court in legal cases by translating complex technical issues into plain language, usually evaluating work against the standard of the 'reasonable, competent practitioner' and giving their opinion on the practice. My students can tell you that I do rather bang on about personal or expert opinion being unreliable and its low place in the hierarchy of evidence (Greenhalgh. 2019).

Opinion is at the bottom of the pile because, by its nature, it is based on individual experience and prone to bias. The requirement for the expert witness is to give opinion based on knowledge and experience, based on the contemporary guidelines, protocols and literature.

The timeline of a case is something like this: 

A letter of approach arrives from a solicitor giving me details either for the claimant or the hospital trust against whom the claim is being made. Expert witnesses can only be instructed by a solicitor with the permission of the court. The duty of the expert is to the court and to be impartial. The expert should write the same report, regardless of which side in a case instructs them.

I accept or reject a case depending if the work is within my scope of expertise, whether I have a conflict of interest, and by how much time I have available. If I accept the case, I send the solicitor my terms of appointment and my CV.

Then I wait... This can be a slow process.

The bundle of evidence arrives. This is the medical notes and can be one or more enormous boxes of lever arch files, sometimes meticulously organised, or occasionally, in a disastrous state of disorganisation. More recently, the bundle is frequently shared as a pdf via a secure portal. 

The instructions usually contain specific questions to answer and I identify other content relevant to the case. The real work starts with sifting through the bundle, reviewing the ultrasound images, identifying key documents, and creating the outline of the report. 

Each report is essentially an essay and the heart of the report is a comprehensive literature review. The work requires good academic writing skills, as well as the ability to demonstrate critical evaluation, analysis and synthesis to explain the path to the opinion.  

In many cases, expert involvement ends with the report but, in some, involvement extends to conferences with barristers, meetings between the experts from both sides, and occasional court appearances.

When I took my first case I was not happy to start the work without training and was extremely fortunate to have a very supportive instructing solicitor. I did not realise how fortunate I was at the time, but I have experienced the good, the bad and the ugly since, and can definitely say I was lucky with my first.

The instructing solicitor was happy to wait while I did a course in medico legal report writing, concurrently with writing the case report. I went on to complete a full certificate in expert witness practice, and I would not feel comfortable about practising without it. 

Earlier this year the Academy of Medical Royal Colleges published guidance for healthcare professionals acting as expert witnesses. This includes the recommendations that professionals doing this work should have specific training.

The course is expensive, but the work is serious. An expert who causes a case to collapse though incompetent advice can be sued. It is very unlikely, but you absolutely do need to know what you are doing and must undertake CPD and have insurance. We would not practise ultrasound without these.

Expert witness practice brings professional development opportunities and non-stop ultrasound CPD because to do the work you have to stay up to date and question everything. It is by turns fascinating, alarming and satisfying. It is a bit like ultrasound itself! It informs my teaching and has helped me to become a better sonographer. 

As well as being a lecturer in medical ultrasound, Jacquie is a sonographer in an ultrasound department.

The College of Radiographer's Expert Witness Register
The Society and College encourages suitably experienced members to apply to become an expert witness in their specialty.

Click for information about the register, what is involved in being an expert witness, training, and professional indemnity insurance.
 

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