Medical experts are sometimes perceived as mercenaries, selling their opinion for money. This has been favoured by the adversarial judicial system in North America with medical experts on both the sides of the Court Room. Medical experts too often believe firmly that their main duty is to help the requesting party to win their case. Therefore, some of these experts allow themselves to reinvent medicine, to lie or misrepresent the facts in Court, to select specific facts, ignoring others, in the medical file, or to select the literature, to help the lawyer to win his case.
I have often been in court myself; sometimes I found statements made by certain medical experts to be unreal and pure fantasy. Sometimes, I questioned medical experts, who happened to be colleagues for years, after their testimony, asking them if they could dare to repeat to their fellows and residents what they just mentioned to the judge. Too often, I was desperate to hear that they will never do that, saying they just tried to help a patient to win his case!
I am aware of a specialist who saw the same patient 6 months apart in two different clinics in the same city. The expert did not recognize the patient, and gave completely different opinions to the two requesting parties, so as to please the requesting party. I had a friend, a work compensation expert, who spent his life, adjudicating his patient’s conditions as personal conditions, rather than the result of a work accident, to save money for the Work Compensation Board!
Most of the North American medical experts have not followed a formal medico-legal training, as do the medical experts in UK and Europe, and ignore what is their main duty.
The main duty of the medical expert, according to the American Medical Association(1), is to assist the Court in the administration of justice. The medical ethics of the American Medical Association mention that medical experts should testify honestly and not allow their testimony to be influenced by financial compensation.
The procedures of Civil Court in Ontario, in Canada(2), similarly request the medical expert to sign an acknowledgment of expert duty (Form 53); the expert acknowledges that his/her duty is to provide opinion evidence that is fair, objective and non-partisan; to provide opinion evidence that is related only to matters that are within his/her area of expertise; and to provide such additional assistance to the court may reasonably require in order to determine a matter in issue. The expert then acknowledges that the duty referred to above prevails over any obligation, which he/ she may owe to any party, by whom or on whose behalf, he/ she has been engaged.
The new Quebec Code of Civil Procedures mentions in its article 22(3) that the expert duty is to help the Tribunal, that this duty overrides the interest of any party, and that the expert must accomplish his/her mission with objectivity, impartiality and rigor.
The main duty of the medical expert is to help the Court and the Tier of facts to decide on issues involving medical knowledge in his field of medical knowledge.
Partisan opinions given by many experts over the years, led the UK Supreme Court to suppress the immunity of the medical expert testifying in court (Jones v Kaney, UKSC 13-2011). This judgement provides pros and cons for the immunity of Court experts. The UK Supreme Court decided that experts from now on are liable for their opinions; there have been too many abuses in the legal system, with futile law-suits, based on partisan and unfair opinions.
The United States Supreme Court decided in Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579-1993) to establish standards for scientific evidence given in Court, to combat the opinions based on “junk science”. The Daubert case defined new standards (5 rules) for giving scientific evidence in front of the court.
In Canada, the Supreme Court gave in 1994 a judgement (R v Mohan-1994-2 SCR 9) known as the Canada’s Daubert. The R v Mohan judgement stipulated standards (4 rules) to admit an expert opinion.
In spite of these efforts to emphasize the main ethical duty of the medical expert as an assistant to the Court, many experts still reinvent medicine and lie in court to help lawyers win their cases. Because of this reason, lawsuits are rising against medical experts, which started about 10 years ago in both the United States and in the Province of Quebec (not yet in the Common Law Canadian provinces).
I would like to insist on three other duties for the medical experts: new skills, impartiality, and intellectual honesty.
The medical expert must acquire some medico-legal knowledge above his knowledge as a family doctor or a specialist. Having acquired this new medico-legal knowledge, he shall demonstrate, through this new knowledge, that he has developed new skills in the medico-legal field, which must be apparent for peers.
First, the medical expert must master the Impairment guidelines to be used. The United States uses the 6th Edition of the AMA Guide(4), which relies on the ICF bio-psycho-social model of disability, using 4 grades of impairment. Ontario uses the 3rd, 4th and 5th edition of the AMA Guidelines. Quebec uses the 6th Edition of the AMA Guideline in Civil Courts, and specific impairment guides for Work compensation cases (5) and for automobile accidents(6).
Medical experts must also master their vocabulary. Their opinion shall be based on probability (50% + 1) in Civil Courts, and not certainly beyond any doubts, as in the Criminal Courts. Therefore, experts shall avoid terms like “possibility”, “plausibility”, “hypothesis”, or “benefit of the doubt”. His opinion should be prevalent on the justice scale as more probable than improbable.
Another skill to acquire for the medical expert is to master the International Classification of Functioning, Disability and Health (or ICF), developed in 2001 by the World Health Organization(7). This bio-psycho-social model of disability defines not only the alterations in the body structure and functions but also looks at the activities and participation in the society, taking into account contextual factors such as environmental and personal factors. This is a new paradigm in the assessment of impairment. Dr. Rondinelli, chief editor of the 6th edition of the AMA guide, mentions that the disability of a patient can fluctuate according to the importance of environmental and personal factors, making the patient with the same impairment fall more or less deeply on the “disability” trampoline, according to the importance of environmental or personal factors.
Another topic of importance for the medical expert is to establish causation. The medical expert shall be familiar with the Bradford Hill criteria, to establish causation(8).
The duty of the medical expert is to be impartial. Partiality just entertains frivolous and costly law-suits. On the contrary, the medical expert should develop his ability to be an independent arbitrator, acknowledged for his independence, without any partisanship.
The last ethical duty of the medical expert is intellectual honesty. The medical expert shall choose the best literature, consider all the facts in the medical file, and give a fair and unbiased opinion to the requesting party. Too often, the medical experts will select the facts in the medical file and/or be very selective in the choice of medical literature in order to support the views of the lawyer requesting his opinion.
The medical experts in North America should follow a medico-legal training, as this is mandatory in most European Countries. An academic medico-legal training program for medico-legal experts has been created by the University of Montreal in 2000 (see www.mae.umontreal.ca). Unfortunately, the Canadian Royal College of Physicians refused in December 2015 to create a Medico-Legal Expertise diploma, arguing that this will not be fair for the experts without a diploma (!).
In 2008, the Goudge inquiry was created to investigate Dr. Charles Smith competency as an expert in child pathology, and concluded to several miscarriages of justice due to Dr. Smith’s negligent opinions. This scandal led to the creation of a Royal College sub-specialty diploma in Forensic pathology.
We probably have to wait more scandals of this sort to have more stringent regulations applied on the training and certification of medico-legal experts in North America.
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François Sestier, MD, PhD, FRCPC, FACC, CIME is a Cardiologist and Life Expectancy Calculation expert. He has over 40 years of experience in the field of medicine, 29 years as an Adult Cardiologist in the cath lab and 30 years as an Insurance Medical Officer. Dr. Sestier's medico-legal advice is available to counsel representing both Plaintiff and Defense. He has performed life expectancy calculations for litigation purposes on topics as diverse as traumatology, traumatic brain injury, cognitive impairment, spinal cord injury, morbid obesity, diabetes, many different cardio-vascular pathologies, sudden death, stroke, cerebral palsy, multiple sclerosis, epilepsy, asthma, chronic obstructive lung disease, sleep apnea, liver cirrhosis, hepatitis B and C, and all kinds of cancers.
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