The medico-legal expert witness space appears to have started to become rather crowded in recent years, with an increasing number of health professionals believing this to be a desired area of practice, some virtually immediately post-graduation.
As the pool of alleged expertise grows however, so to do the risks to the reputation of the professional domain under which an expert is registered and the quality of the evidence provided if the duties of an expert witness are not properly respected and understood.
Becoming an expert witness requires having covered significant professional mileage to enable sufficient experience on which to base one’s opinion, combined with recognition of the fact that the role carries serious responsibilities, some of which may not be quite as straight forward to meet and maintain as might have been assumed. In addition to the duties required of an expert witness, it is not often realised that when one puts one’s hand up to become a medico-legal expert witness one automatically agrees to protecting, upholding and advancing the reputation of the entire professional area of expertise under which one practices. This first professional responsibility requires acknowledgement, and is substantial.
Although clarification of the role of the medico-legal expert witness can be found in various court judgments across the world and many articles have been written on the subject, the fundamental values and ethics required of a professional operating in this domain lie within the heart of the expert himself / herself.
A health professional desirous of working in the area of the provision of factual evidence and considered opinion ought to take time to reflect deeply on the reasons for their particular choice of work before doing so. Clear mindedness is necessary. Bright warning lights of the choice possibly being ill-advised must flash when it is not supported by a greater sense of professional purpose; belief; values and ethics – the brightness of which will ultimately become blinding as the year’s progress and comfort and complacency set in.
The choice to practice as a medico-legal expert witness demands a great deal more than being a qualified health professional with a suitable number of years of practice and appropriate experience to enable the completion of an assessment and provision of written opinion. It requires an understanding of and respect for the rule of law, alongside commitment to the path of continuous professional development in ensuring that the most appropriate assistance is provided to the court in every circumstance. It also requires the maturity to withstand the potential challenges experienced when the latter may turn out to be ‘unpopular’ in its factual presentation, and or there is pressure to adjust the findings presented in order to ‘lean’ a certain way. These further responsibilities can neither be taken lightly, nor ignored.
Douglas Kruger, a South African professional speaker, business author and innovation strategist, articulately sums up the role of an expert in his book – ‘Own your industry – how to position yourself as an expert’ – as follows:
“Experts have a different culture to low-level workers. They think about their industry, fixate on it, care about it, worry about it, wish they could change it, speak to it, interact with it, affect it and assist it in growing it.” He goes on further to say: “You can fake a great many things in life. But you can’t fool yourself into a 40 year career as an expert in an industry you don’t care about.”
Although he was referring to those who wish to practice and be recognised as experts in industry across the board and was not referring to the health professional expert witness specifically, his points are valid. The role of an expert equates to a calling into which one invests all of one’s professional self and is not suited to those whose hearts are not dedicated to the purpose thereof.
If one is truly drawn to the professional world of medico-legal expert witness work, one’s purpose must be that of truthfully, objectively and independently assisting those tasked with the application of the law in the administration of justice. There should be a constant stirring of excitement with each opportunity of making use of one’s professional skills in contributing to the serving of justice. As in the absence of a sense of purpose in carrying out the work of an expert witness, bright warning lights ought also to flash when the silent thrill of being an expert witness is absent.
Tom Hanks summed up his sense of purpose when playing the role of an attorney dying of AIDS in the film Philadelphia, when he was asked by counsel why he chose to become a lawyer: “… what I love most about the law is that every now and again, not very often, you get to be a part of justice being done – it really is quite a thrill.”
Few thrills, if any, are unaccompanied by an element of risk; medico-legal expert witness work is no different. The greatest risks however mostly lie in making the wrong choice in engaging in this domain of work from the start, and or allowing oneself to fall into the ever present trap of becoming an expert upon which certain briefing parties learn to rely in the provision of evidence in a way that they ‘want’ to receive it. The risk of the slow, insidious slide into the trap of becoming the ‘hired gun’ is ever present for a host of reasons, including personal vulnerabilities such as the reality of having to ensure a continued source of income.
The most robust form of protection from falling into the above-mentioned trap is when one is clear minded about one’s sense of purpose with regard to the professional choices made; is cognisant of one’s responsibilities, and is immovable in commitment to assisting in the administration of justice.
If every medico-legal expert witness is fully aware and truly mindful of the important role they play in society, the prevalence of ‘hired guns’ would diminish and our courts would be provided with the most consistent; logical; precise; accurate; unbiased and sound medico-legal opinion possible on every occasion.
Reasonable concessions would be more common when committed professionals engage in cross-examination that calls for a degree of consensus; there would be greater flexibility of mind; a willingness to adjust opinions (as necessary) and matters would probably settle more timeously than is currently the norm.
In short, if not called to this area of work through a sense of professional purpose and if not constantly mindful of the responsibilities demanded of an expert witness, perhaps it would be best advised to focus one’s professional energy elsewhere.
If the call is heard however, follow it with all your heart.
Published in the April edition of Modern Medicine 2018