Medical experts are sometimes seen as mercenaries, selling their opinions for money. This has been favoured by the adversarial judicial system in North America, including Canada, with medical experts on both the sides of the courtroom. Medical experts too often believe firmly that their main duty is to help the requesting party to win their case. Therefore, some of these experts allow themselves to reinvent medicine, to lie or misrepresent the facts in court, to select specific facts, ignoring others in the medical file or to select the literature to help the lawyer to win their case.
Most Canadian medical experts have not followed a formal medico-legal training, as the medical experts in the U.K. and Europe are required to do, and they ignore what is their main duty.
The main duty of the medical expert is to help the court and the trier of facts decide on issues involving medical knowledge in their field. The procedures of Civil Court in Ontario, similarly, request the medical expert to: sign an acknowledgment of expert duty (Form 53); acknowledge that their duty is to provide opinion evidence that is fair, objective and non-partisan; provide opinion evidence that is related only to matters that are within their area of expertise; and provide such additional assistance that the court may reasonably require in order to determine a matter in issue. The expert then acknowledges that the duty referred to above prevails over any obligation, which they may owe to any party, by whom or on whose behalf they have been engaged.
The new Quebec Code of Civil Procedures mentions in its article 22 that the expert duty is to help the tribunal, that this duty overrides the interest of any party and that the expert must accomplish their mission with objectivity, impartiality and rigour.
Partisan opinions given by many experts over the years led the U.K. Supreme Court to suppress the immunity of the medical expert testifying in court (Jones v Kaney, UKSC 13-2011). This judgment provides pros and cons for the immunity of court experts. The U.K. Supreme Court decided that experts from now on are liable for their opinions; there have been too many abuses in the legal system, with futile lawsuits, based on partisan and unfair opinions.
The United States Supreme Court decided in Daubert v. Merrell Dow Pharmaceuticals, Inc. to establish standards for scientific evidence given in court, to combat the opinions based on “junk science.” In Canada, the Supreme Court in 1994 gave a judgment (R. v. Mohan, 19942 SCR 9) known as Canada’s Daubert. The R. v. Mohan judgment stipulated standards (four rules) to admit an expert opinion.
In spite of these efforts to emphasize the main ethical duty of the medical expert as an assistant to the court, many experts still reinvent medicine and lie in court to help lawyers win their cases.
I would like to insist on three other duties for the medical experts: new skills, impartiality and intellectual honesty.
The medical expert shall acquire new medico-legal skills
The medical expert must acquire some medico-legal knowledge above their knowledge as a family doctor or specialist. And once this knowledge is acquired, the medical expert should undergo medico-legal training, as is mandatory in most European countries. (Unfortunately, the Royal College of Physicians and Surgeons of Canada refused in December 2015 to create a medico-legal expertise diploma, arguing that this will not be fair for the experts without a diploma!)
First, the medical expert must master the impairment guidelines to be used. Ontario uses the third, fourth and fifth editions of the American Medical Association guidelines. Quebec uses the sixth edition of the AMA guideline in civil courts and specific impairment guides for work-compensation cases and automobile accidents.
Medical experts must also master their vocabulary. Their opinion shall be based on probability (50 per cent plus one) in civil courts and not certainty beyond any doubts as in the criminal courts. Therefore, experts shall avoid terms such as “possibility,” “plausibility,” “hypothesis” or “benefit of the doubt.”
Another skill to acquire for the medical expert is to master the World Health Organization’s International Classification of Functioning, Disability and Health developed in 2001 by the World Health Organization. This bio-psycho-social model of disability defines not only the alterations in the body structure and functions but also looks at the activities and participation in the society, taking into account contextual factors such as environmental and personal factors.
Another topic of importance for the medical expert is to establish causation. The medical expert shall be familiar with the Bradford Hill criteria to establish causation.
The medical expert shall be impartial
The duty of the medical expert is to be impartial. Partiality just entertains frivolous and costly lawsuits. On the contrary, the medical expert should develop their ability to be an independent arbitrator, acknowledged for their independence, without any partisanship.
The medical expert shall demonstrate intellectual honesty
The last ethical duty of the medical expert is intellectual honesty. The medical expert shall choose the best literature, consider all the facts in the medical file and give a fair and unbiased opinion to the requesting party. Too often, the medical experts will select the facts in the medical file and/or be very selective in the choice of medical literature in order to support the views of the lawyer requesting their opinion.