Medical
7. Going to Court
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 20 Aug 2015
- Health professionals may have to go to court for one of the following purposes:
- as a witness;
- for giving expert opinion;
- producing documents; and
- to defend any malpractice claim brought against you by a patient.
- As a health professional you may be asked to provide factual evidence as a witness in court.
- This commonly occurs when you are or were the treating doctor for an individual and an eyewitness to the treatment of a patient.
- If you are called as a witness of fact you should not give any professional opinion on the issue unless it is directly relevant to your interaction with the individual concerned.
- Going to court as a witness may be confronting if you are unfamiliar with the courtroom dynamics.
- If you are concerned you should speak to the party who has called you as a witness and discuss your queries with them.
- Their lawyers can tell you what you can expect inside a courtroom and how you should address certain people in court.
- You must remember that you have a professional obligation to protect the privacy of your patients and are bound by laws of confidentiality.
- As a person who possesses a special knowledge, skill or experience in a particular area you may be asked to give your expert opinion as evidence.
- A court requires expert evidence when there is uncertainty regarding a particular area that is under consideration.
- Although not the ultimate decider of a case expert evidence can be crucial in litigation (legal proceedings).
- Any party may call you as an expert witness in a trial and it is important to remember that:
- an expert witness cannot be involved in the matter; and
- you should be honest and objective in your opinion.
- The court will ask you to provide information to determine whether you are suitable to provide the required evidence. This includes:
- details of your specialisation;
- your qualifications (this may include your curriculum vitae); and
- how your knowledge is relevant to the matter before court.
- Usually the expert witness is required to prepare a report setting out their expert opinion and the evidence on which that opinion is based.
- This report should comply with any prescribed guidelines and must be written in plain English.
- Where possible the report should avoid using medical terminology.
- You are entitled to be paid for your work and should discuss remuneration with your instructing lawyer.
- Medical professionals may be required to produce documents to a court if a party to a legal dispute serves a subpoena on you.
- A subpoena is a document that orders you to produce certain documents to the court.
- You are legally obligated to comply with the subpoena even if your patient objects.
- You must produce the documents to the court and not to the requesting party.
- This is because your patient may argue in court against disclosure of the medical documents to the other party.
- If you have been asked to produce clinically sensitive documents regarding your patient you must still comply with the subpoena but you must put the documents in a sealed envelope with a declaration stating ‘not to be opened until the court has decided on disclosure.’
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