Medical experts give medical opinions within a legal context. It is, therefore, essential that they understand the legal principles and precedents that show how the court will assess and evaluate their evidence. They must also learn the analytical and evidential writing skills necessary to communicate effectively with both their instructing lawyers and with the court. A medical expert will only achieve a sufficient level of professional competence as an expert when this knowledge and these skills have been properly developed.
To achieve professional competence as a medical expert, a doctor has to develop ways of thinking that are beyond the purely medical – to develop a ‘medico-legal mind’.
Experts who have developed a medico-legal mind are able to:
- understand the duties of an expert witness and the specific requirements of expert evidence within the litigation process;
- adopt an appropriate methodology to provide reliable evidence dealing with the medico-legal issues in dispute;
- identify the factual matters relevant to a dispute and apply medical expertise to these facts in a logical and medically supportable way;
- address all relevant medical issues that arise by providing opinions and conclusions that a lawyer can understand and engage with;
- understand and apply, in every case, the civil standard of proof and the appropriate legal tests to the evidence;
- understand how to assess and report on the consequences of an injury; and
- recognise that the fundamental purpose of medical expert evidence is to help the court to assess the validity of a compensation claim and the level of damages to be awarded.
In essence, competent medical experts are able to assess each medico-legal issue in a case, first applying their medical expertise or ‘medical mind’ to each issue and then placing their medical findings within a legal context by applying their medico-legal expertise or ‘medico-legal mind’. This helps the court to more easily resolve a compensation claim.
Experts who have developed a medico-legal mind know that the strong medical emphasis on an evidence-based approach is important, but also understand that conclusive medical evidence is only useful and relevant if it can be gathered without incurring disproportionate cost and without the demand of invasive tests and procedures. The expert must also be able to work effectively knowing that in many cases no conclusive medical evidence or medical certainty will ever be established and must understand that medical certainty is never required for a civil case to be proved and for damages to be recovered.
Experts who have developed a medico-legal mind also know that in performing the role of an expert, they are required to express a clear and firm opinion on any issue where the evidence is capable of being assessed to the civil standard of proof, ‘on the balance of probabilities’. This requirement holds even when no conclusive medical evidence is available to decide issues to a medical or scientific standard of certainty.