Is medicolegal work a duty?

Clinical situations leading to complaints are increasing in frequency and it is important that they are handled in a fair and open way. Many complaints can be resolved locally; however, where there has been a perceived adverse outcome legal advice may be sought. Advocates protecting the rights of patients will seek expert opinion to guide them. Frequently these cases are complex and outcomes are not ideal. Patients and their families may have suffered a great deal.

The role of the expert is to identify what has happened and to interpret events and pathology so that all involved can follow them. The responsibility of the expert is to the court. However, this does not mean that all experts will agree. Increasingly, procedure rules stipulate how experts and assessors should produce their opinion and evidence.¹ Guidelines on the responsibilities of experts and the opportunity for experts to discuss clinical issues, to produce an agreed opinion to the court, is now mandatory. Where opinion is not agreed, clear reasons need to be explained.

Legal work is of importance both from the position of the claimant and from the position of the medical profession. Legal cases can be high profile and represent areas of practice where the profession is open to public scrutiny. The role of the expert in providing sound opinions and their ability to express their opinions with clarity to claimants and to the legal profession is paramount.

Studying cases where legal action is being taken enhances one‘s clinical experience by providing time to study adverse clinical incidents or where situations have been perceived by the claimant as adverse. This allows one to be aware of potential risk management issues within one‘s own practice and organisation. A pragmatic approach is required to protect against paranoia.

The practice of medicine means that one is offering opinion on a daily basis. In areas of specific interest one becomes “expert” and colleagues and patients will seek opinions within this area. The legal profession require expert medical opinion when approached by an aggrieved claimant and should be provided with such opinion. The profession should not fear this situation but rise to the challenge, seeking to educate and explain the frequently complex situations that arise.

Participating in this process is likely to become integral to modern medicine, if it is not already. Some clinicians will have more interest in this type of work than others; however, the profession as a whole needs to acknowledge that the provision of expert opinion is an important area in which skills need to be developed or learned. Who makes the best expert is interesting—is it the most experienced, the most reasoned, or the most erudite? I quote the opinion of Paracelsus² on the nature of a doctor, “If your heart is false, you will also be a false physician; if your heart is just, you will also be a true physician.” This can be applied to the role of the expert witness as well as the physician. If one carries the same qualities from clinical work to the expert role, knowledge itself is not all important; however, the desire to be just in the application of knowledge is a legitimate aim.

Remuneration for expert opinion is not comparable with time spent developing a busy private practice within ophthalmology. It is my opinion, however, that if one does not charge a comparable fee to legal professionals one is not treating professional skills and knowledge with appropriate respect. If we do not respect our profession can we expect this of others?

If the role of expert is done well and with sincerity there should be little opportunity for public humiliation in court and a badgering barrister will only make himself look foolish.