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Conduct of Medico-Legal Experts

Many plaintiffs have made anecdotal comments to their lawyers about the attitude and manner of the medico-legal doctor who has examined them.  Two recently reported cases regarding expert witnesses, however, detail conduct that goes beyond the normally complained about behaviour.

Case Studies

1.

In the case of Health Care Complaints Commission v Wilcox[2020] NSWCATOD 10, the Health Care Complaints Commission (HCCC) brought a case against Dr Wilcox for unsatisfactory professional conduct.  It was alleged his conduct was significantly below the standard reasonably expected of a medical practitioner and that he engaged in improper or unethical conduct in the practice of medicine.

The complaint centred on the fact that Dr Wilcox had revealed personal details about his own health to the patient he was examining for a worker’s compensation assessment.  This was allegedly a boundary violation, which means that the medical practitioner had failed to observe appropriate professional boundaries when he revealed personal details about himself and his family.  These included details that he had cancer; that he did not want to die; that he had recently undergone major surgery; that he had a large surgical scar on his groin area; that his son was a vet; that he was not happy about his son being a vet and that his wife was old.  It was not accepted that Dr Wilcox had told the patient that he did not want to die; that his wife was old and that he was not happy about his son being a vet.  The other allegations were accepted.

Further, there were allegations that Dr Wilcox had inappropriately brushed the patient’s stomach and breasts, together with failing to leave the room when the patient was undressing or provide the patient with a gown for her modesty.  The allegations in relation to inadvertent touching were not accepted but the allegations about failing to provide a gown and not leaving the room while the patient undressed were accepted.

The tribunal determined that Dr Wilcox’s revelations about his health and recent surgery crossed the professional boundary between medical practitioner and patient.  They amounted to conduct which was below the conduct which could be reasonably expected of a medical practitioner.  Dr Wilcox had failed to maintain appropriate professional boundaries between himself and the medico-legal patient.

The tribunal determined that the failures of Dr Wilcox to provide a robe or leave the room while the patient was undressing, both constituted instances of unsatisfactory professional misconduct.

The tribunal took into account Dr Wilcox’s poor health and advanced age and cautioned him in relation to unsatisfactory professional conduct for revealing inappropriate personal information to a patient and reprimanded him for unsatisfactory professional conduct for his failure to provide a gown and for failing to leave the room while the patient was undressing.

2.           

In the UK the highly unusual case of Thimmaya v Lancashire NHS Foundation Trust  (30th January 2020, Manchester County Court) has recently been decided.  In that case the medical expert who had been retained by the plaintiff was ordered to pay a significant part of the defendant’s costs.

The defendant argued that when Mr Jamil had been cross examined, in relation to his expert evidence, he had been unable to articulate the test to be applied in determining breach of duty of care in a clinical negligence case.  Mr Jamil had stated under cross examination that he did not know the test which should be applied.  This meant that the Claimant was required to discontinue her claim as Mr Jamil had been her expert witness.

The defendant alleged that Mr Jamil was not competent as an expert in the Claimant’s case or any other case as he was not aware of the legal test for breach of duty.  It was further alleged that he was not fit to give evidence whether oral or written as he was suffering from psychiatric difficulties which had meant that he had taken sick leave and ultimately retirement from his clinical work.

Mr Jamil accepted that he was not fit to give evidence due to his mental health difficulties which had affected his memory and concentration.  He contended that he knew the test for breach of duty but had been unable to articulate it on the day because of the questioning technique of the barrister who had reminded him of an interrogator who had previously interrogated him in Iraq.

Her Honour Evans J found that, on the balance of probabilities, in this particular case, that Mr Jamil had not answered the questions in cross-examination as to the test for breach of duty because he did not know, was unable to recall or could not apply the test due to his cognitive difficulties caused by his mental health problems.  Mr Jamil should not have continued as an expert witness in court or in conference at a time when his mental health difficulties had prevented him from working in clinical practice.  He should have taken sick leave from his medico-legal work at the same time as he took sick leave from his clinical work. 

Her Honour Evans J referred to the important and significant duties an expert witness owes to the court.  Her Honour Evans J noted that while she would not fine Mr Jamil for his conduct, he had failed comprehensibly in his duties to the court.  Her Honour Evans J went on to comment that experts should understand the importance of their duties to the court and the potential consequences should they fail in those duties.  Here the Claimant lost her entitlement to have her case tried on the merits, significant court time was wasted and a public body, the NHS, had spent considerable money on legal costs.  A costs order was made against Mr Jamil for £88,801.68.

Conclusion

These cases whilst very different and unusual, demonstrate the dual duties of a medico-legal experts.  As medical practitioners they must ensure that their conduct is complaint with the National Law and as medico-legal experts they must ensure that their additional duties to the court are remembered and fulfilled.

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