by Michael A Foy
A recent brief article in the BMJ provides food for thought for Orthopaedic surgeons who carry out expert witness work (Dyer, 2014)1. It concerns the case of a Consultant Psychiatrist who was felt, by the Medical Practitioners Tribunal, to have acted beyond his competence in preparing an expert report on a paramedics’ fitness to work.
Briefly, the Psychiatrist in question was instructed by solicitors in October 2011 to provide a report for the Health Professions Council on the fitness of a person to work as a paramedic. The paramedic had a personality disorder and PTSD. The doctor worked as a psychiatrist in a prison and specialised in learning disability. His standing as an expert was challenged by the expert for the paramedic. It transpired that the only time he had worked in the field of general adult psychiatry was as an SHO. The tribunal concluded that he did not have sufficient experience to act as an expert in this case and had misled those instructing him. It was agreed that he was more than competent in his day to day practice at the prison. However, the Medical Practitioners Tribunal suspended his licence to practice for three months. They concluded that his behaviour amounted to, “misconduct which required a message to be sent to you and to the public that undertaking the duties of an expert witness is not a matter to be taken lightly”.
A number of references were made to the GMC guidelines on the duties of an expert witness (2013)2 and in particular paragraph 12 “You must only give expert testimony and opinions that are within your professional competence or about which you have relevant knowledge. If a particular question or issue falls outside your area of expertise you should either refuse to answer or answer to the best of your ability but make it clear that you consider the matter to be outside your competence”.
I recently attended Court in a “whiplash” claim where there were significant ongoing neck/shoulder girdle symptoms and more general pain issues. I was acting as an expert witness for the defence and there was a Pain expert on each side. The “Orthopaedic/Spinal” expert for the claimant was a Spinal Injuries Consultant. It became clear during the trial that the Spinal Injuries Consultant didn’t have a great deal of day-to-day experience of managing patients with neck and shoulder girdle problems and was not a sensible choice of expert to act for the claimant. The Judge dismissed his evidence. As far as I am aware the matter was not taken any further. However, it appears to me with the precedent set by the case discussed above it is only a matter of time before experts from other
specialist areas find themselves before the Medical Practitioners Tribunal if they stray outside their areas of expertise.
The message to take from these cases is that it behoves all of us to ensure that we really are experts in the area that we are providing opinions on. If seriously challenged in Court it may not be sufficient to put forward an argument that we treated patients with back pain, shoulder problems, foot/ankle problems or whatever as an SHO but have not been actively involved in their management for a number of years.
Michael Foy is a Consultant Orthopaedic and Spinal Surgeon, is Chairman of the BOA’s Medico-legal Committee, Co-Author of Medico-Legal Reporting in Orthopaedic Trauma and author of various papers on medico-legal and spinal/orthopaedic issues.
1. Dyer C (2014) Tribunal suspends doctor for acting as expert witness beyond his competence BMJ; 348 : g4126
2. www.gmc-uk.org/static/documents/content/Acting_ as_an_expert_witness.pdf
Originally published in the Journal of Trauma & Orthopaedics (Volume 2 / Issue 4) © British Orthopaedic Association 2014