Expert Evidence Are you qualified to provide an opinion?

This article has been prepared by Meridian Lawyers¹, at the request of Guild Insurance, and forms part of Guild’s proactive approach to providing professional education and risk management for the chiropractic profession.

In this article, Paul Baker, Senior Solicitor Director of Meridian Lawyers Limited, discusses the issues concerning the provision of an expert opinion in chiropractic litigation and highlights the specific matters that a practitioner must consider if he or she is asked to provide an opinion about a peer’s standard of treatment.

In chiropractic practice a range of circumstances can arise in which a practitioner is requested to review the treatment of a previous practitioner and report on whether a peer’s treatment was appropriate or, alternatively, defective—and if so, in what respects. The request for opinion can be made prior to, or during the course of, Court proceedings and in circumstances where a claim against the practitioner has not yet been contemplated. The provision of an opinion and report can, if unfavourable, often become the catalyst for a civil claim being brought by the patient against a fellow practitioner.

Opinions and Reports

While instances of poor chiropractic treatment exist and, quite rightly, result in criticism against a fellow practitioner, the provision of a report can essentially be defined as forming the basis of an expert opinion; as the provider of an expert opinion, when you comment about a peer's standard of treatment, the potential exists for you to be subject to scrutiny and exposed to cross examination as a witness in legal proceedings.

The opinion of a chiropractor is admissible in Court proceedings (subject to relevance) upon proof of the requisite academic qualification or membership of the appropriate professional body. The qualification of an expert is determined by the Court via a ‘voir dire’. If it appears, on such examination, that the proffered expert is not sufficiently familiar—by reason of experience or instruction—with the designated subject, his/her evidence will not be admissible. As such, on being asked to provide an opinion, it is important to consider whether you have sufficient experience and qualifications to do so.

If asked to provide a report, a practitioner has a legal and ethical obligation to be fair and professional. The judicial system is often reliant on expert evidence in order to make decisions about the allegations being made. Without such evidence, an inappropriate decision may ensue.  An expert witness is not an advocate; the task is to be truthful and impartial. It is important that an expert witness keeps an open mind and is prepared to revise, and possibly reverse, his or her view in light of new or better evidence. The judiciary rarely possesses detailed chiropractic knowledge and in these circumstances, considerable emphasis and importance are placed on the expert practitioner’s opinion of the defendant practitioner; with regard to whether the defendant practitioner has acted reasonably and to the standard of care expected of a competent practitioner exercising reasonable care and skill.

Expert Witnesses

It is seven years since the Australian Institute of Judicial Administration published its findings on what 478 representatives of the Australian Judiciary feel about the standard of expert witnesses in Australia. Responding judges’ comments about the perceived independence of witnesses ranged from:

• experts showing an overt lack of independence;
• experts showing a lack of neutrality; and
• experts being affiliated with the commissioning side; to
• experts being perceived, in some cases, as ‘professional advocates’.

The study by the Australian Institute of Judicial Administration is believed to have been a decisive factor in the introduction, throughout most of Australia, of expert codes and protocol to define the role of expert witnesses and set clear parameters for their legal and professional responsibilities. Today, the concept of an expert as a ‘hired gun’ is no longer applicable. An expert, among other things:

• has an overriding duty to assist the Court impartially in matters relevant to the expert’s area of expertise;
• has a paramount duty to the Court, and not to the person retaining the expert;
• is not an advocate for a party;
• must make reference to any other material fact or matter of relevance (regardless of whether that expert has been asked to comment on that particular aspect when providing a report);
• must indicate if his or her opinion is not a concluded view due to insufficient research or data, or for any other reason;
• must inform the engaging party, via a supplementary report, if his or her opinion about a material matter changes; and
• should provide a copy of his or her curriculum vitae when submitting the report.

Some jurisdictions such as Victoria, South Australia and Queensland have gone one step further: if an expert’s report is commissioned during the course of formal Court proceedings (or prior to proceedings which are subsequently commenced) it is incumbent on the retaining party to serve the report, regardless of whether the opinion expressed in it is supportive of his or her case. While strategies can be employed to circumvent such a requirement (for example, seeking an expert’s preliminary verbal view, prior to commissioning a written report) the requirement is aimed at ensuring the independence and impartiality of an expert witness and forcing parties to resolve claims if an unfavourable report is received—as opposed to ‘expert shopping’. The other obvious benefit is the resulting legal costs saving.

It is important that practitioners do not compromise their personal and professional reputations by providing ill-informed and incomplete advice. When providing an expert opinion, don’t jump to conclusions. Attempt to get both sides of the story. Make sure you have all of the facts and a complete set of documentation, including records, radiographs and other test results. By all means provide a report, but please do so only in circumstances where you can support your findings. Numerous instances have arisen and continue to arise where these golden rules are not followed. Professional reputations are being brought into disrepute and questioned in circumstances where this need not occur.

Guild Insurance Limited. ABN 55 004 538 863. AFSL No. 233791. This article contains information of a general nature only and is not intended to constitute the provision of advice

1. Guild Insurance’s legal team, Meridian Lawyers Limited, handles all liability claims brought against chiropractors insured with Guild Insurance, throughout Australia.