14 Nov 2014
In order to prepare an expert report (context of medical negligence), one needs to understand the role of an expert within litigation. There are several leading Court decisions that define the expert’s role, and, in lieu of citing these cases and quotes, the following is a paraphrased summary:
An expert has acquired special or peculiar knowledge through education and experience, on matters he/she undertakes to provide an opinion. This opinion is to assist the Court with scientific information which is likely outside of the experience and knowledge of the Judge or Jury. Before any weight is attached to the expert’s opinion, the facts upon which the opinion is based must be found to exist.
Simplified for this article, the process is generally – a request from a lawyer to review specific documents (hospital chart), provide an initial opinion (verbal or written), usually a draft. Post examinations for discovery a final report is provided, and, usually a reply report to the opposing party’s expert.
IMPORTANT ASPECTS TO AN EXPERT REPORT
Prior to accepting:
- The opinion must be within your expertise. Your CV should be up to date. Be prepared to produce any referenced articles.
- Check for any conflicts of interest or potential bias. Your opinion is to be unbiased and independent.
- The facts relied upon or the foundation of the opinion must be fully described, including any assumptions and documents. Your opinion should be relevant to the facts. Do not assume what occurred. If gaps in the facts exist-either ask for further information or state what is missing.
- Do not draw conclusions or inferences or speculate based on what you think happened, or what you believe the nurse was thinking or based on what has occurred in other cases.
- Speak with the lawyer to determine any report formalities. (Rules of Civil Procedure)
- Your report will likely not be filed as an Exhibit at trial. However, it should be a reflection of your testimony, which is essentially confined to the 4 corners of your report.
- Do not assess credibility – that is the Court’s function. If a fact, for example statements at examinations for discovery, do not make sense given your knowledge and experience; then, indicate what the difficulty is and use supporting literature or scientific reasoning.
- Note any differences in facts between plaintiff and defendant, but do not decide who is correct. Refer to contradictions if it relates to your opinion.
- Be extremely careful of templates, they can come back and haunt you. Similarly, using textbooks or articles that provide a report outline- is only a guide and not a precedent. Choose your words and style; otherwise, you will not be comfortable in Court.
- State clearly what is the standard of practice, and whether the defendant met the standard. Be careful when using words such as “not appropriate” or “in my practice”. These phrases are not sufficient.
AREAS OF CROSS EXAMINATION
The most common areas of attack either at trial or by opposing expert are: qualifications, facts/assumptions used, authoritative works, being an advocate and not independent.
In conclusion – be professional not arrogant; objective not subjective; not an advocate but independent, do not try to persuade. If you are confident in your opinion, and it is fully supported, then, you have done your job as an expert.