For debate: the short report - legal and ethical implications

Abstract

At the outset of an alleged medical negligence case, it is common for medical expert witnesses to be asked to write a brief report, sometimes called a short report or a screening report. Such requests may come from solicitors acting for a claimant or for the defence. Reassurances may be offered that the opinion given will not be disclosed. However, this is very often not the case. Doctors and the instructing solicitors need to be aware of the legal and ethical implications of providing such instructions. The medical expert must be aware that their duty to the court begins from the time of receipt of a letter from a solicitor requesting such a report.

Introduction

In medical negligence cases, medical expert witnesses are commonly asked to write a ‘Short Report’. The request may come from solicitors instructed by the defence, by the claimant or from the agency that is bank rolling the solicitor. Complete documentation is seldom provided.

The response to an enquiry to NHS Resolution (‘NHSR”) about the definition of a Short Report (sometimes referred to as a screening report) was that the question should be put to the instructing solicitor, as there was no precise definition.

The aim of those issuing such instructions is to understand whether there is a case to be answered. If the request comes from a solicitor for a claimant the outcome will influence whether or not funding for the case can be obtained. If the request is from a solicitor for the defence, the short form report may be used to decide whether or not a case is to be defended and, if not, how best to respond to the particulars of claim to minimise the cost of settlement.

In both situations, the legal and ethical pitfalls need to be emphasised.

Documentation

It is common that when a medical expert is instructed to provide a short report, only a synopsis of the documentation is provided. No medical expert should, save in unusual circumstances, write a report based on incomplete documentation. If the documents that are provided are a synopsis, it is usually unclear who prepared the synopsis. The training of the individual who has prepared the synopsis is likewise usually unknown. The expert is expected to rely on somebody who is not an expert to decide what documents are and which are not relevant.

Compartmentalisation

An expert is chosen for their knowledge in a specialised field. In clinical practice specialists do not act in isolation but work in multi-disciplinary teams. The advantages of this are recognised by doctors and their patients. Experts with different clinical areas of expertise, when writing short reports, do not have the opportunity for interaction with medical colleagues. This prevents experts from providing the most balanced and comprehensive opinions. There are shades of medical grey that need to be identified and that are best achieved by an exchange of views.

Medical ethical considerations

The Hippocratic Oath, while not specifically referring to medical litigation, includes the obligation that medical practitioners will treat colleagues with respect. To offer an opinion on whether or not a colleague has been negligent is the gravest responsibility and one which deserves a full and thorough examination of all the evidence.

The requirements of the General Medical Council (GMC) for medical expert witnesses¹ mirror the principles set out in the Hippocratic Oath. The medical expert has a responsibility to their colleagues. An obligation included in GMC ‘Good Practice Guidelines’ is that doctors are required to work collaboratively with colleagues, respecting their skills and contributions. This opportunity is denied to medical experts who write short reports.

To be investigated for alleged negligence is a profoundly disturbing event for any medical practitioner. To be offering an opinion as an expert medical witness on whether a colleague has been guilty of negligence counts as one of the gravest responsibilities that doctors encounter. One of the dictates of the Hippocratic Oath is that: ‘My colleagues will be my sisters and brothers’. This ethical duty cannot be fulfilled by writing a short report that may be based on incomplete evidence.

The decision of whether there is strong enough evidence for a case to proceed in the light of a short report is dictated by a legal view of how best their client’s case may be presented, highlighting favourable evidence and potentially, either consciously or subconsciously diminishing, ignoring or hiding unfavourable opinions, sometimes to secure funding to progress to the next stage of litigation and sometimes to minimise damages.

In the NHS, Duty of Candour regulations were introduced in 2014.² Arguably, this same duty of care should be extended to a colleague.

If the Court concludes that an expert has not taken reasonable care to meet the required standards, they may be exposed to GMC disciplinary measures in addition to any deemed appropriate by the Court, such as wasted costs.

A short report may contribute to a legal view of how best their client’s case can be presented. The legal teams may emphasise parts of an expert’s report to support the case they make. The medical expert witness risks becoming an inadvertent accessory to a misleading interpretation or representation of the facts and opinions in their report in an adversarial and confrontational legal approach.

Legal considerations

The duty of an expert witness is to the Court, from the moment that an instruction is received. This is not recognised by all solicitors when they issue instructions for a short report. Part 35 of the Civil Procedure Rules³ includes clear and precise instructions of what is required by the Court. It is the duty of the expert, in providing written reports and giving evidence, to help the Court, and this duty overrides any obligation to the party by whom the expert is engaged or the person who has paid or is liable to pay the expert. This duty, at least in medical negligence cases, begins from the time of the expert’s first involvemement with the case.⁴

A medical expert witness should, at all stages in the proceedings and on the basis of the evidence, provide independent assistance to the Court and the parties by way of objective unbiased opinion in relation to matters within their expertise. This applies as much to the initial meetings of experts as to evidence at trial. This ensures that medical expert witnesses are not ‘hired guns’.⁵

Proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.^6,7 Irrespective of the type of report, whether a short report, a screening report, a single joint report, an expert report or a joint report, medical expert witnesses must be able to sign a statement of truth if they are not to contravene the ethical and statutory requirements of their profession. Instructing solicitors sometimes blur the distinction between what may or may not become part of the evidence on which they rely. If the expert were to change their opinion, such a witness retained by a party in litigation may also be sued for professional negligence.

From 1 October 2020, the mandatory statement for an expert’s Statement of Truth CPRPart 35 – compliant report must include the words (emphasis added):

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Conclusions

Medical expert witnesses must, at all stages in any proceedings, provide an unbiased opinion based on appropriate evidence. If full documentary evidence is not provided, the medical expert cannot fulfil this obligation. This applies as much to initial instructions, reports and meetings as to evidence at trial.

The Short Form report is not compatible with the ethical standards of professional behaviour as defined by the General Medical Council.

No instructions for short form reports should be accepted by medical expert witnesses.