“Hired guns” still a problem for profession

MEDICAL negligence claims against some doctors are being frustrated and prolonged due to the poor quality of some expert reports, according to medicolegal experts who have renewed calls for changes to the expert witness system.

There was an element of “hired gun” experts in some cases, where legal teams selected a doctor known to hold the views that supported their case, said Cheryl McDonald, who is claims department manager for medical indemnity organisation Medical Insurance Group Australia.

“Sometimes when you see a report and it’s by Dr X you know it’s going to be critical before you’ve even turned the page”, Ms McDonald said.

Beth Wilson, Victoria’s Health Services Commissioner and a qualified lawyer, said the hired gun phenomenon remained a “major problem” with the legal system. She suggested expert witnesses be paid for by the state rather than by legal teams.

“I’d prefer a system where the expert witness was amicus curiae or ‘friend of the court’. Judges should be able to rely on the expert, knowing that their information is not biased towards one side or the other”, she said.

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Legal immunity for experts questioned

THE quality of medical information provided by expert witnesses in legal proceedings is often poor, and may be improved if immunity against prosecution for experts is removed, according to AMA president Dr Andrew Pesce.

Dr Pesce’s comments come in response to a recent United Kingdom Supreme Court judgment that abolished immunity against prosecution for expert witnesses. (1)

Although Australia still provides immunity for expert witnesses, the British case could be used as a precedent if a similar case was brought here.

Dr Pesce said removing immunity might encourage experts to do a better job and therefore protect themselves from litigation. “I don’t think it would be a bad thing. It would make doctors focus on providing reports that were of good quality and that made arguments based on good evidence,” he said.

Although Australian expert witnesses currently have legal immunity, there have been instances where medical boards have taken disciplinary action against doctors who have provided erroneous advice.

Dr Pesce said he had substantial experience reviewing expert witness reports, and had written medical advice for about 12 legal cases.

“Too often in my reviews of some experts’ reports I see things that are not backed up by evidence. Often the information is wrong, and not only is it wrong, but there’s no evidence to support it at all.

“It might be opinion but they’re presenting it as fact,” he said.

- Sophie McNamara

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