Many surgeons prepare expert reports for use in civil or even criminal litigation, or even in GMC proceedings against another surgeon. But is insurance necessary for expert witnesses?
A 2011 court case, Jones v Kaney , overturned the historical partial immunity of expert witnesses from being sued. An expert witness can be sued in negligence just like any other professional whose role involves giving an opinion about a technical subject. The phenomena of expert witnesses getting things wrong is so common that a legal journal called Lexology carried an article in 2018 commentating on recent cases where there had been “deficiencies”. The author reviewed a number of published cases and summarised typical mistakes including “Lack of Realism”, “Applying the Wrong Test”, “Attempt to Mislead”, “Unreasonableness”, “Lack of Independence.”
While mistakes and misunderstandings might be more likely at the early stages of an expert witness’s career while they are still gaining experience, even the best experts can inadvertently fall into error because the most respected and experienced expert witnesses will tend to get instructed in the more difficult types of cases.
Also, experts can inadvertently lose confidential information or data, or be the victim of a hacking attack or other cyber event, which can lead to both claims for compensation and possibly also fines from the ICO.
Even more concerning, surgeons can and do get referred to the GMC for reasons arising from their expert witness work alone. Referrals can be made by the instructing party, the other side or even the Judge if he or she considers that the expert has significantly failed in their duty to the court.
Is insurance necessary for expert work?
If you do the sort of expert witness work that requires you to hold a licence to practise (for example because a clinical examination is part of your instruction) then you need to hold medical indemnity insurance to comply with GMC requirements and avoid a professional conduct breach.
Even if medical indemnity insurance is not technically obligatory (perhaps purely ‘desk-top’ reports with no clinical examination), it would be very risky indeed to undertake medico-legal/expert witness work without insurance to protect you from third party claims, GMC referrals or cyber events arising from it, and to pay for the necessary specialist legal advice and representation. Insurance is a practical necessity to protect against the inherent risks of expert witness work. Given the highly specialised nature of medico-legal expert witness work, it is necessary to obtain your insurance through a specialist such as Incision, which can understand and meet your needs.
What about jurisdiction and territorial limits?
Have your instructions come from outside of the UK for use in proceedings outside of the UK?
If so, it is vital to check your insurance cover for your expert witness work, to make sure that you are covered to carry out work in that jurisdiction, and that you are covered if a claim against you is started in the courts of that jurisdiction.
When should I notify my indemnifiers?
Even unmeritorious or misconceived allegations against you should be notified to your indemnifiers as soon as you know about them, to protect your insurance position.
If your indemnifier provides a medico-legal helpline service you should contact them for guidance straight away. Dealing with a complaint arising from your expert witness work can be complicated because of the impact of the relevant procedural rules and your duties to the Court, so it is best to get specialist assistance to avoid exacerbating a problem.
Incision members have access to a medico-legal helpline staffed by dual-qualified doctors and lawyers, with experience in assisting members in problems arising from their expert witness work.