Medical Experts - Liability as Expert Witnesses
Bruce Cussen, Partner and Vahini Chetty, Solicitor
Medical professionals are often called to give expert evidence in matters before the courts. To date, they have given that evidence with immunity from prosecution. If recent developments in the United Kingdom are adopted in Australia, that immunity may be at risk.
In Jones v Kaney [2011] UKSC 13, the United Kingdom Supreme Court lifted the long-entrenched immunity from prosecution historically granted to expert witnesses In that case the Supreme Court recognised that the duties owed by expert witnesses are more akin to the duties owned by barristers or counsel than by lay witnesses. Lay witnesses were found to owe a single duty to the court, whereas the duty owed by
barristers and expert witnesses were twofold – owed to both the client and the court.
For the past nine years barristers in the UK have not enjoyed immunity from prosecution arising out of their conduct in legal proceedings. Statistics before the Court in Jones showed that despite the lack of immunity, there did not seem to be an increase in proceedings brought against barristers since the lifting in 2002 nor was there any reluctance on the part of barristers to take on cases. Following from this the Court in Jones found that since barristers no longer enjoyed immunity and the removal of barristers' immunity did not seem to result in undesirable consequences, it was prudent to abolish the immunity that until then was granted to expert witnesses.
It has been long-established in Australia that witnesses are immune from being sued by the party that engaged their services for negligence or breach of contract: Cabassi v Villa (1940) 64 CLR 130. This principle applies to both lay witness and expert witnesses alike as no distinction is generally made between the two. However, since Australian courts often consider the decisions made by UK courts, it is important to consider whether the position will change in Australia.
The issue of immunity of medical experts in Australia was considered as recently as 2006 in the case of James v Medical Board of South Australia and Keogh [2006] SASC 267.
The facts are as follows:
• Dr James was a forensic pathologist who was asked to give evidence in relation to the prosecution of Mr Keogh for murder. Dr James' manager, Dr Manock, had conducted the post mortem. Mr Keogh was convicted (at least in part) on the basis of Dr James' evidence.
• Following the guilty verdict, Mr Keogh brought a complaint against Dr Manock to the then Medical Board. Dr James provided evidence in support of Dr Manock in these proceedings.
• Mr Keogh then lodged a complaint with the Medical Board against Dr James based on inconsistencies in the evidence which he provided at trial and in Dr Manock's Medical Board proceedings.
The Full Court of the Supreme Court of South Australia in James v Medical Board of South Australia and Keogh [2006] SASC 267 considered whether such a claim could be brought against Dr James as, in both cases, he had acted only as an expert witness and expert witnesses are immune from prosecution. But it is relevant to note that the case it was considering (the disciplinary case) did not involve a court, but Dr James' professional body, to which, under the rules of his profession, Dr James was accountable.
It was held to be in the public interest that, although immune from suit for the evidence given, expert witnesses should be held accountable to their professional peers for complaints brought by members of the public for unprofessional conduct arising out of the provision of that evidence.
Special leave to appeal to the High Court of Australia was refused: [2007] HCATrans 107.
Similarly, an application for special leave to appeal to Mr Keogh against Dr James which could have concerned questions as to the duty of expert witnesses was dismissed because the grounds of appeal were directed to attacks on findings of fact which were difficult to overturn and no question of public importance was raised by the application: Keogh v James [2010] HCASL 36.
Accordingly, the position in Australia is that although expert witnesses are immune from prosecution for evidence that they give, they may still be brought before a professional body for unprofessional conduct.
It seems unlikely that the position in Australia in relation to the immunity will change in the immediate future.
However, there are steps that expert witnesses can take to minimize any potential liability. These steps are as follows:
i. A paramount duty of care is owed to the court. This duty requires experts to be truthful at all times. In providing expert reports and professional opinion, experts should be mindful of this duty. "Hot-tubbing", or the provision of a joint report by expert witnesses has now become common practice. This might increase the temptation for experts to simply agree with what is being said by the other expert with whom they are conferring.
ii. Experts need to ensure that they always bear the following in mind when providing joint statements:
a. Always ensure that they have read the report of the opposing expert before engaging in a discussion or conference with that expert;
b. There is no obligation upon them to agree with anything that they do not believe. They should not let their professional opinion be swayed by the opposing expert;
c. Professionals should always ensure that they are thorough in their consideration of the issue at hand and that they always provide their true evaluation of the situation; and
d. Always read joint statements thoroughly before signing them.
iii. When agreeing to provide expert evidence, include in any contractual retainer a clause excluding liability for any issues arising out of the evidence which is given. In that way there is additional protection from legal action in the event that immunity is later lifted. It will not, however prevent claims being brought by a professional body.
If experts provide their opinion according to the above steps, this should assist them in avoiding both litigation and proceedings from the professional body. Of course, expert witnesses should also ensure that they have appropriate insurance coverage in place.
Bruce Cussen
Partner
T: +61 2 9390 8423
E: bruce.cussen@holmanwebb.com.au