Orthopaedic surgeon as an expert witness in medicolegal proceedings

         Orthopaedic surgeon as an expert witness in medicolegal proceedings

                                                    KS Dhillon LLM

Introduction

Orthopaedic surgeons are increasingly being requested by solicitors to provide medical reports for medicolegal proceedings and to appear in court as an expert witness. There is not much information available to malaysian orthopaedic surgeons who are increasingly getting involved in such medicolegal work. This area of expertise is not included in our undergraduate or postgraduate curriculum. The Malaysian Medical Council (MMC) website provides some information under the section on ‘Ethical Code & Guidelines’ and subsection ‘Expert Witness’ (1). The latest amendment of the section on expert witness by the Malaysian Medical Council was at its meeting on 17 May 2016 (2). However the amendments do not amount to significant reforms.

Expert Witness Guidelines

The Malaysian Medical Council Expert Witness Guidelines define who is an expert witness and what qualifications are necessary to be an expert witness. It also outlines the responsibilities of an expert witness. The guidelines describes what expert evidence is and what a expert report should contain. It also advises on what to do when there is conflict of interest with regards to the patient or any other party.
In the introductory preamble of the guidelines the following paragraph appears ‘[t]he MMC’s guidance “Good Medical Practice” sets out the principles which underpin good care. When registered medical practitioners (“RMP”) act as expert witnesses, they take on a different role from that of a RMP providing treatment or advice to patients. However, the principles set out in “Good Medical Practice” also apply to RMPs who are expert witness’.
A in depth reading of the good medical practice guidelines shows that the guidance is mainly about doctor patient relationship and not about how to be a good expert witness. There should be a distinction between an individual who is a patient and who is a litigant.The rules that govern dealing with a patient and that when acting as an expert witness are different. However the Malaysian guidelines do not provide any clarity on this subject.
The Australian guideline on ‘Good Medical Practice’ on the other hand makes a clear distinction between these two roles (3). At 8.7 under the heading ‘Medico-legal, insurance and other assessments’ the guideline states that ‘[w]hen you are contracted by a third party to provide a medico-legal, insurance or other assessment of a person who is not your patient, the usual therapeutic doctor–patient relationship does not exist’. In such a situation good medical practice involves being courteous and alert to the needs of the person and to obtain consent and also to explain the reason  for the assessment and after the assessment to provide an impartial report. If any unrecognised serious medical problem is discovered during the examination, it is the duty of the doctor to inform the person or his/her treating doctor.
Probably the most comprehensive guidelines for doctors is the American Medical Association (AMA) Code of Medical Ethics 2016 (4). The guidelines have a separate comprehensive section on medical testimony at section 9.7.1. This section stresses on the importance of medical evidence in various administrative and legal proceedings and obligation of doctors to assist in the administration of justice. The guideline emphasises on the need to be honest and impartial and that the testimony should not be influenced by financial consideration. The guideline warns against receiving compensations that are ‘contingent on the outcome of litigation’.
Doctors who act as fact witnesses, for their patients, in legal claim, must remember the importance of confidentiality. The testimony should reflect facts of the case and honesty is of paramount importance.
Expert witnesses should only testify in their area of training and experience. The testimony should be objective and independent and it should reflect  the ‘current scientific thought and standards of care that have gained acceptance among peers in the relevant field’ at the time when the incident happened. Theoretical testimony should be avoided but if that is not possible, then the basis of the theory should be characterised.
In the USA, state medical licensing board and the specialty societies are entrusted with the responsibility of assessing ‘claims of false or misleading testimony and issuing disciplinary sanctions as appropriate’, to maintain high standards of medical testimony.
In the USA several medical specialities have established their own guidelines based on the ethical standards set by AMA (5). The American  Academy of Orthopaedic Surgeons (AAOS)  has produced its own code of medical ethics and professionalism for orthopaedic surgeons (6).
 In the UK, similar guidelines are available for witnesses of fact and expert witnesses. The guidelines are set in a 4 pages document produced by the General Medical Council in 2013(7). It stresses on the need for honesty, confidentiality, competence, knowledge, being up to date and the need to work within the limits of one's competence, beside being always impartial. It also reminds the doctors that in providing medical testimony the doctor’s overriding duty is to the court, irrespective who is instructing or paying the doctor.
The guidelines, however, are silent about other important aspects of medical testimony such as judicial immunity of expert witness, penalty for false testimony and possible sanctions by regulatory bodies.

Judicial Immunity of the Expert Witness

Historically, in English law, witnesses in legal proceedings have enjoyed judicial immunity since Cutler v Dixon: KBD 1585 (8). Evidence provided by an expert witness was protected from civil liability. The basis of this immunity is public policy considerations where there is an assumption that if there is a risk of civil proceeding based on the evidence, then the witness will not be willing to provide frank and full evidence. This however changed when the Supreme Court of the United Kingdom on 30 March 2011 abolished this immunity in Jones v Kaney [2011] UKSC 13, by a 5-2 majority (9). The majority was of the opinion that the reason for the immunity, that the witness would be reluctant to provide true opinion and that there may be a proliferation of vexatious claim is no longer tenable. The majority were of the opinion that the court has to respect the fundamental rule that every wrong should have a remedy which is the cornerstone of any system of justice. However the immunity to a defamation civil suit would continue.
Following this decision in Jones v Kaney things may change for both the expert witness and the maybe for the client as well, although the British Courts do not believe it will happen. Now that a client who believes he has been wronged by the expert testimony may file a legal redress against the expert which in turn may result in shortage of experts available who are willing to testify. So far this landmark decision is not binding in Malaysia and judicial immunity of the expert witness remains.
In Australia too the doctrine of immunity for expert witnesses is still in force.  In Commonwealth of Australia v Griffiths[10] the court confirmed that the key objectives of the doctrine is to make sure that the expert witness is able to  give evidence freely; and also to make sure that the same evidence is not tried repeatedly in multiple actions. This immunity, as in UK, does not extend to considerations of the expert’s conduct by the regulatory professional bodies.
In the USA there has been a gradual erosion of the expert immunity over the years and now most courts ‘view professional witness malpractice as an actionable claim’ (11). Most often the party hiring the expert sues the expert for negligence and less often the expert hired by the opposing counsel gets sued (11).
What happens if the expert witness provides false testimony?

False testimony

A doctor who provides false testimony under oath or lies in his deposition when acting as an expert can be prosecuted for the crime of perjury. The statement made must, however, be “material” to the subject of the proceeding.There is no immunity for lying in sworn testimony. The prosecution for perjury is carried out by the government prosecutors and not by any of the parties involved in the litigation.
In Malaysian law, false evidence is defined under section 191 of Act 574, of the penal code. The Act defines false evidence as ‘whoever, being legally bound by an oath, or by any express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give false evidence’.
The punishment for false evidence is provided for under section 193 of the same Act. It states that ‘whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with
imprisonment for a term which may extend to seven years, and shall
also be liable to fine…’ (12).
Besides the government, state authorities or professional bodies can also mete out punishment for expert witness malfeasance.

Sanctions by state authority and/or professional body. 

There are three systems that operate to regulate expert medical testimony in most countries. This would include the legislature, the judiciary and medical regulatory bodies such as the medical council or the medical professional organizations (13). There are precedents in the USA and the UK where medical regulatory bodies have taken disciplinary action against doctors for expert witness malfeasance.
In the USA, Dr Austin, a neurosurgeon and member of American Association of Neurological Surgeons (AANS), had his membership suspended by the AANS after he testified as an expert for the plaintiff against Dr Ditmore, another member of AANS. At the conclusion of the malpractice trial, Dr. Ditmore complained to the AANS about Dr. Austin’s medical testimony. Investigations by the AANS showed that Dr. Austin’s
testimony did not have evidentiary basis and had violated AANS expert witness guidelines and the AANS ethics code. Dr. Austin subsequently sued the AANS,without success (14).
In the UK, the most well known case of disciplinary action by General medical Council (GMC) for expert witness malfeasance was that involving Professor Sir Roy Meadow. His name was struck off the medical register by the Fitness to Practise Panel (FPP) of the General Medical Council (GMC) in 2005, following a complaint by Sally Clark’s father. He was found guilty of serious professional misconduct for providing statistical evidence that was inaccurate and misleading at the trial of Sally Clark who was convicted of killing her two children. She was, however, subsequently released after the second appeal.   
Professor Meadow appealed to the High Court and the High court in February 2006 allowed his appeal and quashed the order of the GMC. The GMC appealed to the Appeals Court in July 2006. At the Appeal Court, the Master of the Rolls, Sir Anthony Clarke MR, broke down the appeal into two parts, the first being whether an expert witness has immunity from disciplinary proceeding by the GMC for evidence given by him at legal proceedings. The second was an appeal by the GMC to squash the High Court Judge’s ruling that Professor Meadow was not guilty of serious professional misconduct.
 The Appeals Court unanimously concluded that FPP had jurisdiction to entertain the allegations against Professor Meadow, which in essence meant that there is no expert witness immunity from disciplinary proceeding by the GMC for evidence given in legal proceeding.
The Appeals Court with a majority of two to one upheld the decision of the High Court Judge that Professor Meadow was not guilty of professional misconduct and dismissed the GMC appeal on this important matter (15).
A more recent case, in UK, involved a paediatric neuropathologist, Dr Waney Squier (16). A panel of the Medical Practitioners Tribunal Service (MPTS), the statutory successor to the FTPP, decided to strike her name off the medical register for expert witness malfeasance in the “shaken baby” cases. She appealed to the High Court. At the High Court, the judge, Mr Justice Mitting acquitted her of dishonest testimony and he found that the tribunal's determinations were “in many significant respects flawed.”
The judge made several interesting concluding observations. He was of the opinion that since this case before the MPTS was a complex case which required ‘an understanding of the context in which expert evidence is given in a court’, it would have been proper to have a lawyer with judicial experience as the chair of the inquiry. The rules of General Medical Council (Constitution of Panels, Tribunals and Investigation Committee) 2015 do not prohibit such an appointment. The Judge’s comments probable meant that if a lawyer with judicial experience had been appointed as the chair, the shortcomings in the tribunal's determinations could have been avoided. This would have prevented pain and suffering for the accused and also save time and money for all parties involved.
In the UK, doctors can be prosecuted again after acquittal by the GMC, although there is law against double jeopardy in most countries. The Council for Healthcare Regulatory Excellence (CHRE) has the powers to refer a doctor to the High Court after they have been acquitted of of serious professional misconduct by the GMC. The first case of this nature involved Dr Ruscillo (a GP) who was found to be not guilty of serious professional misconduct by the GMC but the CHRE felt it was an unduly lenient penalty.
The Council appealed the acquittal and Dr Ruscillo challenged the appeal.The case went to the Court of Appeal and the court held that this acquittal could be a subject of an appeal according the law (17).
Although, regulatory bodies such as the Malaysian medical council and the GMC do mete out punishment to errant expert witnesses, these regulatory bodies can also err.

Failings of the regulatory bodies

The body that regulates and sanctions doctors in Malaysia is the Malaysian Medical Council. The president of the Council is the director general of health and the council has 11 elected members who are doctors and three nominated member from the civil service who are also doctors. In addition there 18 nominated member from six universities who are also doctors (18) Hence in Malaysia the doctors set the standards and they regulate themselves. In the UK too, self-regulation which provided a lot of freedom in dealing with problems within the profession was the norm till the GMC came under lot of condemnation following the Bristol Inquiry (19) and Shipman Inquiry (20).
Between 1991 and 1995 at the Bristol Royal Infirmary cardiac unit there was an unusually high death rate among children going for heart surgery due to poor care, and poor team work. The problems were brought to light by whistleblower, consultant anaesthetist Dr Stephen Bolsin who could not get a job in UK after the exposure and had to migrate to Australia.The Bristol inquiry resulted in several reforms by the government and professional bodies.
Dame Janet Smith headed the Shipman Inquiry which looked into issues arising from the case of Dr Harold Shipman (GP) who murdered over 200 of his patients. The inquiry did a thorough forensic examination of the GMC and found it to be severely wanting. The GMC had been accused of being a judge and prosecutor (21). Dame Janet Smith’s fifth report which was over 1000 pages long made several recommendation for reforms to the GMC (22).
There have been many amendments to the 1983 medical act (UK) and last being in 2016. The GMC is an independent body which now has lay members besides the medical members. Complaints against doctors are investigated by the GMC. Two senior GMC staff who are known as case examiners (one medical and one non-medical) look into the complaints and they can come to the following conclusion:

• No further action
• Issue a warning
• Agree undertakings - for example to re-train or work under supervision.
• Refer the case to a medical practitioners tribunal (MPT) of the Medical Practitioners Tribunal Service (MPTS) when action on registration may be appropriate.

The Medical Practitioners Tribunal Service is an independent body which reports to GMC twice a year and also to parliament. It carries out hearings for doctors whose fitness to practise is suspect. The tribunal has both medical and lay members.
Although there have been major reforms in the the regulatory bodies in the UK, to date no such reforms have been carried out in Malaysia. The Malaysia Medical Council is not an independent body unlike the GMC. It is an arm of the ministry of health and is financed by the ministry of health. It is regulated by doctors with no representatives from advocacy groups and the council has no lay members to represent the lay complainants (23). The MMC appears to be ‘largely representative of stakeholder groups in the medical profession’ (23). The public perception is that as far as the MMC is concerned the medical profession comes first and that the regulatory process does not appear to safeguard public interest (23). Inquires on the scale of the likes of the Bristol and Shipman inquiry have not and are unlikely to happen in Malaysia in future.

Conclusion

More and more malaysian orthopaedic surgeon’s are getting involved in medicolegal work especially in third party personal injury claims and also some in medical negligence proceedings. However there is not much information available to these surgeons to prepare them for this new role which is very different from the usual one of providing treatment or advice to patients. The rules that govern dealing with a patient and that when acting as an expert witness are different and the Australian Medical Council has made a clear distinction between the two roles, although the MMC believes that the same rules apply to both roles.
Since 2011, UK law does not provide judicial immunity to expert witnesses against civil proceeding. Proceedings against defamation remain in the UK. However, in Malaysia, expert witnesses still enjoy immunity against civil proceedings. There is no immunity for expert witnesses, from criminal proceeding, for false testimony.
Regulatory bodies such as the the MMC and the GMC can take disciplinary action against doctors for expert witness malfeasance. This can include erasure of the name from the medical register.
Failings of the GMC had invited a lot of public criticism in the past which led to a series of reforms to improve its function and image. However no major reforms have occurred in the MMC over the years although the malaysian model of governance is usually based on the British model.

References

1. Official portal of Malaysian Medical Council. Safeguarding patients, guiding doctors at http://www.mmc.gov.my/index.php/ethical-code-guidelines, acessed on 4/9/2017.
2. Expert witness at http://www.mmc.gov.my/images/contents/ethical/Expert%20Witness_17052016.pdf,  accessed on 4/9/2017.
3. Good medical practice: a code of conduct for doctors in Australia at http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx, accessed on 4/9/2017.
4. AMA Code of Medical Ethics at https://www.ama-assn.org/delivering-care/ama-code-medical-ethics, accessed on 4/9/2017.
5.  Kass JS and Rose RV. Ethical Challenges for the Medical Expert Witness. AMA Journal of Ethics. 2016; Volume 18, Number 3: 201-208.
6. Code of medical ethics and professionalism for orthopaedic surgeons at https://www.aaos.org/WorkArea/DownloadAsset.aspx?id=31334, accessed on 5/9/2017.
7. Acting as a witness in legal proceedings  at http://www.gmc-uk.org/Acting_as_a_witness_in_legal_proceedings.pdf_58832681.pdf, accessed on 4/9/2017.
8. Cutler v Dixon KBD ((1585) 4 Co Rep 14b, [1585] 76 ER 886,[1585] EngR 96).
9. Jones v Kaney SC 135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, [2011] UKSC 13, UKSC 2010/0034.
10. Commonwealth of Australia v Griffiths and Another (2007) 70 NSWLR 268; [2007] NSWCA 370.
11.  Bal BS. The Expert Witness in Medical Malpractice Litigation. Clin Orthop Relat Res. 2009 Feb; 467(2): 383–391.
12. LAWS OF MALAYSIA, Act 574, PENAL CODE, as at 1 January 2015, at http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Penal%20Code%20%5BAct%20574%5D2.pdf. Accessed on 9/92017.
13. Kesselheim AS and Studdert DM, Role of Professional Organizations in Regulating Physician Expert Witness Testimony, JAMA. 2008;299(14):1667-1668.
14. U.S. District Court for the Northern District of Illinois. Austin v. American Ass'n of Neurological Surgeons, 120 F. Supp. 2d 1151 (N.D. Ill. 2000).
15. General Medical Council v Meadow [2006] EWCA Civ 1390.
16. Squier v GMC [2016] EWHC 2739 (Admin).
17. Ruscillo v The Council for the Regulation of Health Care Professionals [2004] EWCA Civ 1356.
18. Malaysian Medical Council at http://www.mmc.gov.my/index.php/council, accessed on 11/9/2017.
19. Learning from Bristol: the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984 -1995, at http://webarchive.nationalarchives.gov.uk/20090811143746/http://www.bristol-inquiry.org.uk/ accessed on 11/9/2017.
20. The Shipman report at http://webarchive.nationalarchives.gov.uk/20090808160144/http://www.the-shipman-inquiry.org.uk/fifthreport.asp, accessed on 11/9/2017.
21. Smith R. The GMC: expediency before principle. BMJ. 2005 Jan 1;330(7481):1-2.
22. The General Medical Council, The Shipman Inquiry: The fifth report at http://www.gmc-uk.org/6a_The_Shipman_InquiryThe_Fifth_Report.pdf_25398772.pdf, accessed on 11/9/2017.
23. Nik Rosnah & Wan Abdullah. Medical Regulation in Malaysia: Towards an Effective Regulatory Regime.Policy and Society, 2002;21(1): 96-124.