Expert Witness Secrets

In this episode, we are going to explore one of the most challenging aspects that an expert has to complete when considering evidence. Now, the task quite often includes the ability to draw down an executive opinion in the absence of sometimes material facts. Now, of course, that makes your job even harder, because you're having to draw down on other aspects of your experience, your knowledge, scientific research, and whatever other forms of evidence you have been supplied with. So I believe the real benefit of being an expert witness is to utilize all of that in a way in which you would otherwise in your normal setting would otherwise be unable to. So the real question I want to address in this episode is, how do you manage an expert report, when all of the medical or all of the clinical evidence or all of the relevant evidence in your area of expertise is missing? What do you do? And I think there's three distinct ways to manage this. There's an immediate pushback to the instructing party to say “I have a wish list of items I'm going to need before I can consider accepting this instruction.” That's something I would recommend that you do if you feel that there is such little evidence that your opinion is going to be very much provisional and provide no real value to the instructing party. I do experience that from time to time and I noticed that that is something that is a discipline, because you're clearly turning down an instruction or at least deferring instruction until such point you have got your wish list, or in some cases, most of the wish list of items of evidence.Second way to manage this is to say to yourself, “Okay, I have got some evidence here that allow me to understand some of the key facts. I'll be able to provide either a professional or a firm opinion, or, in some instances provide a range of opinions.” For example, if there's a missing image, or missing radiograph, or missing x ray, a missing piece of documentation, whatever the specific evidence is, that you feel exists because of the your interview of the claimant or perhaps other bits of information that you've been given that refer to a piece of evidence that's missing, is able to say, I will provide you with a range of opinions. So on my range of opinions will be, for example, opinion one if evidence shows X, opinion two if evidence shows why, and opinion three if evidence shows said, and then you outline what that evidence is in a list, and make it very clear to the reader that they have to provide you with that evidence and your opinions are likely to be steered in a direction. That's based on what that missing evidence shows. And of course, that gives the reader instructing party a much clearer viewpoint to say, my opinion can only go up to such a point, any further opinion regarding this matter is subject to the delivery of additional information or evidence. And of course, that will be subject to supplementary or addendum reports. A very common way I found to be able to deal with this in a really effective way allows the momentum of the initial report to be delivered. It allows the instructing party to know where they stand. And of course, it allows you to really force that thinking and be really diligent with your thinking as to the fact that you can't just stop, because you're missing some evidence. But you're suggesting that further evidence and providing the details of that is what you need in order to finalize your opinion. I think it's a very, very powerful way of dealing with those circumstances where you've got most, if not all of the evidence.And I think the last way of the three is to say to yourself, “Okay, we have got a finite amount of evidence, I'm going to be able to provide you with a summary of my opinions.” Now, this can be done via a pro bono telephone call instructing party, or it can be done with a fee attracted via a summary or screening report. And then that summary of screening report, you can say,

In this episode we're going to explore all of the key themes and lessons that I took away from attending the interesting and vibrant annual witness conference held in November 2021 in central London. The day was a combination of networking, key lessons, and some excellent keynote from Sir Geoffrey Vos, as well as an opportunity to check back in with other experts to see how they were managing with the impact of the pandemic, the way in which this has changed their workflow, the way in which they changed their approach towards their clinical career, a lot of doctors, including some that are listening to this podcast, are clearly having a reset of their thinking in terms of how they want to balance their their work life. So huge philosophical takeaways, I think, for me, and I want to share now more specific lessons learned from each of the parts that I feel are really useful to take away. 

Covid has forced a change for good. This change would otherwise take decades if market forces, lobbying and legislation, ran its natural course. In this episode, we explore the changes to the medical legal systems that has created immediate changes , intermediate changes and a course correction to the future path. 

Expert witnesses have a unique position in the medical legal system. It is a subtle but very powerful distinction from other forms of evidence that are presented within a civil hearing. We will talk more about Lord Hodge’s keynote from the Expert Witness Institute Conference in this episode.

There are five top myths that are present in expert witness work that I want to debug or  unwrap, and give you the other side of the equation so that you make your own decisions whether these are genuinely myths or facts or whether these are making the waters muddy for you. So I'll do my best to debunk them. This list of five comes primarily from my discussions with expert witnesses over the years, and a lot of them are continually coming up with the same types of issues. So when I refer to the myth, this might resonate with you immediately or it might need some consideration to think how it's really held you back from either expanding or starting your expert witness work. First on my list is that expert witness work takes a lot of time. There's this sense of overwhelming amounts of evidence and workload that's going to sort of creep into your already busy schedule. And in doing so, you're going to find that you're going to be completely overwhelmed and not be able to make any progress. So I want to give you the the other side of the equation where the expert witness work is organized and systemized based on your existing spare capacity. I use ‘spare’ quite loosely because that is up to you to define capacity in your diary. It is very much based on how structured your time is. I believe that with the correct structure, the correct approach, and the correct professional attitudes towards this type of work will limit the amount of time you need to spend doing this type of work, to the extent where it can be part and parcel of your working week. I think anything between two to five hours a week is at the sort of medium to upper end of capacity requirement for someone who does this on a fairly regular basis rather than sort of ad hoc work from time to time. Of course, that should be the aim for you if you're looking to create a regular stream of work or a regular stream of income and to become more and more invested in this type of work. Next up on the list is the ethical issue. So the myth here is that the expert witness work is unethical.. There's that unfortunate interpretation that some might have about expert witnesses that you're doing some harm or you're doing something that's untoward. And I really want to dispel this myth head on because this is absolute nonsense. The expert’s duty is to the cause, and to remain fiercely independent. They are there to look at complex detailed information which cannot be deciphered by a judge, by a solicitor, or by a lay person. You are in a very privileged position to be able to help the courts understand complex matters in simple and easy to understand words and in easy to understand explanations. That is your role. You are there to help, essentially, the legal system to reach its decision regarding justice and your ability to provide independent evidence. Constantly remind yourself that your duties to the court will never make your work unethical, in my view. Next up on the list is that there's a limited amount of work out there. This limited mindset is a real dangerous part of anything that somebody who is outside of the realm of employment is facing. They're talking themselves out of opportunities to expand themselves, both in their career in terms of their income and in terms of their view of the world. In turn, your ability to improve your everyday practice in your area of expertise. It's important to look at the facts that just in the UK alone, the clinical negligence and personal injury market is a multi billion pound market. This is a multi million billion dollar industry in one developed country. So if you've been dabbling or you've been considering this, look at the facts, do some research, find out how big the market is, and ultimately, ask yourself what is your contribution going to be within that market, and how much of that market share do you w

In order to understand some of the motivation behind what leads to patients starting the litigation process and suing their doctors, I want to draw upon my personal experience as an expert witness, along with my personal experience as a patient, and put in a situation where I was considering litigation. And I want to combine those two together to give you the experience of what's really getting down to the absolute core of frustration and anger, that often is the precursor or the motivating factor to initiate litigation in the first instance. So let's think about this for a moment. We've got a doctor on the one hand, who's got tons of experience and knowledge, picking up huge amounts of knowledge on their journey in their careers as a doctor versus a lay person who might have access to Google, colleagues or friends that have had similar procedures or similar experiences. And they're comparing notes, and they're looking online. Let's be frank, that's what they're doing right now. And they come up to this whole process for treatment with that level of knowledge versus what doctors have, in comparison, a huge disparity, a huge gap, between the two. And just by acknowledging that, in the first instance, will make us understand why there's such a vast amount of litigation in medicine today. This disparity of knowledge is going to be one of the key factors when a patient doesn't understand or does not feel like their opinions have been heard. They are going to feel like they were having treatment done to them rather than being part and parcel of the consent collecting process. The valid consent that a patient needs to provide in order to have treatment is a combined interaction and communication between two people that leads to an understanding to an extent to which they can make an informed decision. That is a process. The real harsh reality is that for the most vast majority of clinicians, there is inadequate resources and time to be able to collect that informed consent to be able to obtain that from a patient in a way in which they truly have provided an informed decision. And that we've got to accept that this is where we are today. There's a huge amount of underlying issues with regards to lack of resources, lack of time to be able to do this process. And that's not going to be one of the key factors. It's led to a huge amount of litigation right now. So I think to address that well as identify it is to be able to acknowledge that the communication, the consent process has to be of a really high an increasing quality as your practice evolves, so that your patient is truly making an informed decision understanding the benefits and risks of each of the alternative treatments, and making a decision based on that. So my personal experience was that the consent part of the process for a surgical procedure was obtained about 30 minutes before my actual procedure for which I was going to be put under general anaesthetic. So I am lying in a hospital bed, about to have a procedure. And I've been presented with a four or five page detailed consent form. Now, that is, at the time, something that I thought was the process, that's just the way that these things are done. And the post operative experience that I had was terrible. There was a huge delay to recovery based on the information I've been given. And so I was looking back to the point at which I consented to the treatment and thought, was I truly involved in all of the risks, but was all the risks of this procedure explained to me at a point in which I could consider them not an hour before the procedure, but that's days or weeks beforehand, to decide that something that's a risk I'm willing to take versus the benefit of having that particular procedure. And the answer was no, I didn't have that. I didn't see this particular proSupport the show (https://www.patreon.com/dentalnegligencemasterclass)

There are multiple factors to consider when obtaining valid consent from a patient. In my view, the most important aspects to consider are ensuring that you've got all of the alternative treatments documented and shared with the patient prior to the commencement of treatment, that obviously forms the backbone, these multiple treatment choices were potentially possible. But the depth to obtain valid consent is ensuring that the patient understands the risks and benefits of each of the treatment alternatives. This is where consent can become quite complex in nature. If you start to envisage them from the patient's perspective, as long as they are feeling like they are being involved in the decision,  once they've got an understanding of the treatment options available to them and they're then aware of the risks of each treatment option and they're willing to accept the risks associated with the treatment option that they prefer, we're still moving slowly and surely towards the stages, if required to get informed consent. And I think these form the key factors, so that patients feel like they're part of the process. And they are part of the decision making process in particular. The challenge, of course, is most doctors have a very limited time to be able to have this discussion in detail. A lot of the consent process is done with the aid of consent forms. Of course, the challenge with a consent form is that it is usually quite complex and difficult for a patient to understand. Just by simply getting a signature from a patient doesn't necessarily demonstrate, retrospectively, that valid consent was obtained. In my opinion, the key parts to demonstrating that valid consent was taken is the number of stages that were involved. It might start with a high level discussion, information leaflets, recommendations for the patients to either speak to family and friends about the decision, or possibly do their own further reading around it, subject to your advice, so that they can get a better understanding. Of course, nobody can make decisions instantly or even on the same day. We all need time to consider the treatment options. For the purposes of thinking about your process of obtaining valid consent, put yourself in the shoes of a patient and consider a treatment outside of your area of expertise. For example, if you're an IT specialist, think about giving consent for an orthopedic procedure. If you're an orthopedic surgeon, think about having a dental procedure and think about all of the things that you would like to know, within that area that's outside of your area of expertise. Before you were able to make a decision, you'd want to know what the alternatives are. You'd want to know which recommendation that the actual provider of the care is suggesting. In the context of the alternative, they might say we think Option A is the way to go. But this is weighed up against the risks or benefits of option B, C, and D, so that both parties are actually making a decision. The biggest problem I've seen from consent not being valid is that the patient feels like things were being done to them as if they felt like they weren't part of that process. And it goes to an even more philosophical level that the patient doesn't feel like they were heard, they didn't feel like their position, or their feelings, or their interests were put forward. They were rather just told you're going to have to have this procedure done and sign this piece of paper, and we'll get it done. That's not valid consent. Although it might feel like you've got a signature. Think back to the last time you've hired a vehicle from a car rental company. Do you ever feel that you've truly understood all of the risks and benefits and risks associated with hiring a car when you're presented with a 10 or sometimes small print three or four side document that will go through all the disclaimers and all of the the finer details associated with the rental of a car. You may

Our Podcast guest is Ben Parry-Smith, a leading lawyer in family law. He's well recognized in this profession and ranked by legal 500 as the next generation partner. Ben has been a partner at Payne Hicks Beach since 2018, 10 years after qualifying as a lawyer. He presented at the Bond Solon annual witness conference 2021. Today’s discussion is aimed at establishing primarily how to strengthen that relationship between an expert witness and instructing party as much as possible to leveraging all of Ben's years of experiences practicing in matters, which often involve relationships falling apart. One of the key parts that I've taken away from listening to him in the past is the dating process. Ben explains that this is the stage where the solicitors are reaching out to try and find an expert that's appropriate for whatever area it is they need expert assistance in. As an expert, a compelling up-to-date CV that sets out your experience is really important. A solicitor is far more likely to instruct an expert that's keen and efficient. He should be able to respond to the solicitor’s enquiry, they don't have any conflict of interest, the area of expertise is absolutely on point, can do the work properly within timescale, can attend court on the dates that are set out, and a good fee estimate. Consider it as sort of like a service level. When you're going out there to obtain a quote for anything, you are subliminally making conclusions about the service that you're likely to get based on the quality and depth of interaction at that very early stage, almost like the dating process, where you try to make a lot of conclusions from the first or second date. It’s that first impression, putting your best foot forward and trying to make yourself appealing. If you can't respond to inquiries in a prompt manner, you're probably going to be in a situation where you're going to be delivering the report late and you're probably going to be unresponsive to a number of things. It's almost like a check in with yourself if you can't put yourself in a position, maybe because you are beyond capacity with other commitments. If this becomes part of your career, it has to be treated with that level of professionalism and time of day or week and not just squeezed in between all your other commitments. Ben adds that if you can't do it, respond quickly to the solicitor or perhaps recommend someone that has the capacity to do it, someone you trust.I've noticed from working with lawyers outside of expert witness work that when I've asked, for example, for some expertise in Europe, and the solicitor that I would perhaps consider in the UK isn't available, they refer colleagues. It’s probably unlikely that there will be a  referral fee but the goodwill that comes out of that type of communication resonates with you for a long time afterwards.Ben says that it’s important that an expert is really responsive, who quickly gets back to the solicitor, and advises if they can't immediately do the work and provides the time when they can complete it. It's all about managing your clients expectations. That way of communicating quickly and setting expectations is really helpful.From a personal perspective, when I look at the time between receiving instruction and looking deeper into the court suggested timelines, and all of the other parts of litigation that they're often months ahead of when you're delivering the report. So there's almost this self reflection of I must do everything instantly. Otherwise, I'm not really serving my instructing party. I learned about the 10 steps to creating a successful relationship from Ben. We did not have the time to go through all 10 today but these are his top three.Having realistic expectations.&l

In this episode, we're going to explore and try and crack the biggest fear I think every expert witness has, which is the day they get called into court.Resources:Daily court lists

Being an expert medical witness is certainly an attractive way to form an additional income stream above and beyond your income as a clinician. What is clear from my assessment is that the income rates are typically anything between three to five times that that you would earn as a clinician, largely comparing to NHS income. Supply and DemandNow, when considering income expectations, there are some obvious factors to consider. So the underpinning issue is around the demand and the supply of that relevant area of expertise. So naturally, there will be a range of expectations depending on the level of experience and expertise, and certainly sub speciality is that will be much harder to come by. So naturally, those that are in high demand of services and low supply of experts will naturally attract a higher rate of income than those where there's a much lower demand for work with a higher supply of experts. That sounds quite obvious, but it's important to think that through. The other factor to consider, of course, is the way in which you interpret your income. There'll be fixed fee work versus per hour rate income. And then of course, there's benefits to both. And there's disadvantages to both. But one of the clear things that I would encourage you to consider is the time that you require for each report on a fixed fee basis, because ultimately, your expectation of income will be based on a per hour rate similar to how lawyers will typically charge for their time, on the consideration that the income is on a per hour basis rather than being a bit over obsessed with the the fee being charged for each report. That will drive efficiency within your practice itself and certainly increase your efficiency as an expert with regards to the work that you do. Income surveys for comparisonThere is of course annual survey, the surveys that are carried out that you can obviously access, we've included one in this particular article, we check the link in there from Bond Solon carried out every year. Next one's due in November 2020. But have a look at the levels of pay rate per hour based on the respondents in a number of different medical specialties. And then when you're considering what your income may actually become over time, it might be worth considering your capacity or area of expertise and the indicative levels of per hour rate. And that way you can carry out a simple calculation to work out what your anticipated income may be based on your capacity, and based on your area of expertise depending on your speciality. Reviewing your payment termsThe other consideration is your ability to review from time to time, what your terms with your instructing parties are. Now, as an expert who's perhaps new or is inexperienced, there's obviously the need to demonstrate an element of flexibility and being able to demonstrate your willingness to work. And that can come in different ways, most obvious of which is the setting the fees. But of course, there's other benefits that the instructing party might want to see beyond that, such as being a consistently high level of service, and also making it clear that you are open and engaging and attracting more work. For those that are more experienced, of course, later in their careers, there's the important need to formally review fees and terms to make sure that you are clearly demonstrating your progress within there. Plan your income potential and capacitySo my summary thoughts really are consider expert witness work as an additional stream of income that can complement your clinical work and also give you further financial security. And I want you to also think about that setting some goals and some indication of what your expectations are beyond the next report, try and think beyond that the next s

The challengeWe're going to spend a minute or so just talking through what was probably the most important thing for the expert in my view is the actual hourly rate or the fee structure that you want to set out yourself , as a supplier of independent expert evidence What is your time worth?Now this is always a tricky conversation for most people because perhaps we've got to get to the bottom line of what level of time one is willing to exchange for the fees that are being offered. [ core is to measure your worth] And I've put it like that because ultimately, this type of work, which is akin to consultancy work, or very much a specific, unique professional service, which only you as the expert can do, it's going to come down to your expectation of what you set your sort of own value to. And starting with the end in mind here makes fee setting a lot easier. Because what we can do then is of course, reverse engineer the numbers so that our fees are reflective of what we're expecting to generate per hour or if you'd like per report, depending on how you prefer to think about this, then it's entirely up to you, I've got no magic formula here of what you're trying to achieve other than spending a few moments just thinking through what your expectations are. How much do you currently earn?There is a tool which I have been made available to prior to starting this course, or you could access it through the resources section of this module is largely around working out what your current hourly rate is. And it's quite a difficult one to calculate, because of things like travel time and admin time. And if you like non income generating tasks, which are part and parcel of your work, which eat into your day, but you would not be typically getting paid for things like travel, or note keeping. They're all integral parts of what you're being paid as a professional on a monthly or yearly basis. So what I would encourage you to do is just have a little reflective reflection on what you think you're worth today and what you would like to be generating in your expert witness work. I'd like to sort of at least say that in my experience, the expert witness work is certainly more lucrative than the clinical work. And that's largely because of the amount of additional time of non income generating tasks that were being performed by me, through the ever increasing levels of compliance, red tape, and patient expectations on the continual rise really do erode off that sort of hourly rate, because, of course, incomes are not being increased at the same level, to be able to maintain a certain level of hourly rate. Setting an intentionSo long story short here is sort I’d really want you to set your stall in terms of your price per hour, have a number in mind, and then perhaps we can think through how long a report is going to take off your time. Again, these things you can potentially start to play with, test, maybe measure if you're currently doing some of this type of work, and then set yourself some internal targets. For example, in my case, I set myself a target to ensure that I’m not spending more than 90 minutes on a report. That's subsequently reduced and I've set further targets to reduce it to sort of sub 60 minutes per report as well. Now that level of discipline is allowed, it's almost forced me to make sure that the work does not require my input is being done by somebody else. And in turn, that is obviously increasing the hourly rate if we're on a fixed fee basis, because the amount of time I'm spending is gradually reducing, but the fees that I'm charging are gradually increasing. And that's how I'd like you to really set out your fee structure and your philosophy around fees structuring. So, hope that's o

When you are instructed to provide a report on a claim of clinical negligence, it is naturally unnerving as a peer in your area of expertise is party to litigation. Today we discuss the ethics of medico legal work. 

Working in the NHS is very tough. We all have first hand experience of the impact of litigation on being able to deliver excellent care however the future liability could erode the essence of the service.  FactsThe NHS paid £2.4 billion in clinical negligence claims in 2018/2019, according to NHS resolution formerly the NHS litigation authority *The NHS resolution has accounted for £83.4 billion worth of future claims.The annual budget for the NHS in 2018/2019 was around £129 billion This amount set aside is amongst the most substantial public sector financial liability faced by the UK government. Underlying IssuesA small number of high valued claims mostly related to maternity care contribute to the majority of the clinical negligence claims. It is clear that this is a direct result of the constraints of the NHS system. In my view patients typically turn to litigation when some or combination of the following affect their care. Firstly, service level experienced by the patient and, secondly, quite often patients are waiting for significant periods before commencing care within the NHS. The providers of health in NHS healthcare are usually under considerable pressure to deliver a high volume of work in very tight time frames. This inevitably prevents the protection of time required to interview, examine, and treat patients, let alone address preventative measures that could address the core issues. I’ve been personally affected by this when targets were increasingly imposed upon me and the system within which I worked. The tendency to simply run faster to treat more patients. This is clearly not the solution. The lack of investment in prevention based medicine in the last few decades is clearly taking its toll on a system designed to treat symptoms rather than prevent the disease. Naturally an aging population with more complex treatment needs along with finite resources is naturally squeezing time doctors and nurses have to manage their patients health needs.. Future ImpactThe funding required for handling litigation by the NHS being essentially taken from the same pot as the delivery of care. A significant proportion of funding is essentially being redirected from the delivery of care and directed towards limiting financial exposure ( Over £4bn last year). This vicious cycle will perpetuate and compound the issue of limiting resources as more funding is directed away from the delivery of care and directed towards funding litigation. This worsening  position places doctors under growing amounts of time pressure, stress which naturally impacts on their chronic physical and mental health. Figures from the Office for National Statistics, covering England, showed that between 2011 and 2015, 430 health professionals took their own lives.Whilst successive government talk about investing more in the NHS, very little evidence of disease prevention is noticeable, in my view. Whilst no healthcare system around the world is perfect, ultimately to maintain a finite resource politicians must take a long term view on investing in disease prevention and screening rather than spending more treating lifestyle related disease.  SummaryI do not envisage that politicians are able to take the long term view in light of the limited time they have in power along with the huge political foothold that the NHS has become. It is clear that the quality of patient care is suffering through no fault of the doctors that provide it. In my experience the less time doctors can spend with each patient the more litigation rises. This is having a major impact on the health of doctors and dentists. 

Number one, summarize your CV so that a lawyer can quickly understand why you are the most appropriate expert for that particular instruction. And by summarizing it, making it lawyer friendly, you're going to get the attention of more instructing parties. Therefore, more work. Second part is really focused. It's about ensuring that you stay focused as an expert, making sure you stay within your area of expertise, and making sure that you don't get bogged down by things that are not appropriate for your level of expertise. Thirdly, it's about what constitutes the report quality. Ultimately, the ability for a non medic to be able to quickly understand why you've reached your opinions without using excessive medical jargon makes this easy to digest and understand for a lawyer. And of course, that will lead to further instructions for you because they will interpret that as a high quality report.Fourth - so this is going to be about delivering more and more reports and of course, there is a chicken and egg here but you've got to recognize the importance of building high quality reports that will in turn, drive up more requests for further reports. And lastly, fifth on the list is your intention setting out a clear desire and goal and ambition having that intention in your mind over the next 24 months of what you want to achieve and why will set you on.Your Host,Dr Sandeep Senghera https://www.linkedin.com/in/dr-sandeep-senghera/