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The Expert Witness on Trial - Dr Mark Burgin

10/12/21. Dr. Mark Burgin BM BCh (oxon) MRCGP imagines providing expert opinions to a court for a case where the Expert Witness community is defending its reputation.

I am on the GP register and have worked as a PI expert for 20 years and produce about 1000 reports a year, I provide independent audits on reports to experts, solicitors and MROs.

The results of these audits show that there are two peaks in performance, one around the bare minimum ‘satisfactory’ and another slightly larger around the good/very good boundary.

There is a range of opinion with some experts saying that experts should follow CPR35 to the letter and produce the best reports possible.

Other experts are of the opinion that whilst reports attract as little as £30 experts might be working at a loss if they do not cut corners.

Qu: Do these ‘satisfactory’ reports comply with CPR35?

A: The short answer is no, a report containing all the relevant facts would pass a quality check but is not likely to show independence and discussion of inconsistencies.

Quality checks are performed to ensure that the report has something that appears reasonable written within each section but does not confirm that the report is logical.

A report copied and pasted or based on a drop-down lists would pass the quality check without containing any expert opinions.

To comply with CPR35 the expert needs to engage with the evidence and discuss the inconsistences using logic and reasonable explanations.

Qu. Can a court safely rely upon a satisfactory report in a straightforward case?

A: My experience is that most of those reports that score satisfactory on a quality check come to reasonable conclusions despite the lack of detail and reasoning.

Cases such as those involving children or LVI type descriptions or where there are pre-existing problems are more likely to come to conclusions that are unexpected.

A red flag is where the expert states that they do not have the expertise and refers to a specialist without first recording an assessment or reviewing the medical records.

Sometimes a report falls apart when new evidence (such as the medical records) shows that either the claimant has been unreliable or the expert has missed something material.

Qu. How can experts be motivated to write high standard reports?

A: Paying experts the full fee rather than splitting it between the MRO, solicitor and IT company would not increase standards but would reduce the risk that an expert will lose money when producing a high standard report.

Providing feedback to experts with Audits that measure both the quality of the report and compliance with CPR35 would encourage experts to improve both of these scores.

The present ‘pass-fail’ and tick box audits create little or no incentive to do anything more than the minimum, even for those who are already producing high quality reports.

Whilst courts have criticised expert’s performance this has not permeated down to the majority of experts who have little chance of attending a court.

Conclusions

Expert witnesses deliver to the targets (SLAs) that are set by solicitors, MROs and MedCo which are that the reports should be cheap and quick.

Those experts who produce high quality reports do so despite a system that creates perverse incentives and penalises good practice.

Almost all reports provided by experts are safe and can be relied upon, unless there is evidence of a more complex issue and the report is not of high quality.

My work confirms that the majority of experts are working contentiously with high professional standards and producing good or very good reports.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Image ©iStockphoto.com/J-Elgaard

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