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.
Like ultrasound practice it can be bad for the 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 cases where a fetal anomaly has not been detected and the parent’s case
is that they would have terminated had they known of the anomaly.
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.
Hierarchy of evidence (Greenhalgh. 2019)
My
students can tell you that I do rather bang on about personal or expert opinion
being unreliable and its place at the bottom of the hierarchy of evidence.
It is true that opinion is at the
bottom of the pile, by its nature it is based on individual experience and
prone to bias. The requirement is in
fact for 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 of a case, 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 permission
of the court and the duty of the expert is to the court and to be impartial. Essentially the expert should write the same
report whichever side instructs them. I
accept or reject based on if the work is within my scope of expertise, whether I
have a conflict of interest, how much time I have available and the need to
balance work instructed by defence and claimant. If accepting 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 and
on a couple of occasions, in a disastrous state of disorganisation. Recently the bundle is more 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, so the work requires good academic writing
skills with 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 cases, involvement extends to conferences with
barristers, meetings between the experts from both sides in the case and in
rare cases, 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 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 one!). My instructing
solicitor was happy to wait while I did a course in medico legal report writing
while I wrote the report. I went on to complete
a full certificate in expert witness practice, and I can safely say that I
would not feel comfortable about practicing without it. Earlier this year the Academy of Medical Royal
Colleges published guidance for healthcare professionals acting as expert
witnesses. This includes the guidance
that healthcare professionals doing this work should undertake specific
training for being an expert witness.
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 practice ultrasound without all
of these.
Expert witness practice brings
professional development opportunities and non-stop ultrasound CPD as to do the
work you have to stay up to date and question everything. It is by turns fascinating, alarming and
satisfying. In that way it is a bit like
ultrasound itself! It informs my
teaching and has helped me to become a better sonographer.
