Help! I’ve been called to give evidence in Court…  The doctor’s survivor guide for preparing for and attending court Sofia Papachristos, Special Counsel, Moray & Agnew with Chris Hanson of the Victorian Bar Wednesday, 7 December 2016

When might a medical practitioner be called to give evidence in Court In legal proceedings involving life & disability insurance matters this is likely to occur under the following circumstances: As the treating doctor As an independent medical examiner (IME) *** As an internal consultant to an insurance and financial services company ***Our Focus

Don’t Panic…You are the expert! You are involved in case because of your expertise - your specialised knowledge based on your training, study or experience Your general purpose as an expert witness is to assist the Court in forming its own independent judgment. Your role is to remain impartial & independent from the litigation - not to act as an advocate for either party

Claim Assessment Medical evidence usually collated from: treating doctors (clinical records, medical reports) Hospitals independent medical experts (IMEs) From outset: assume that any records/report released to parties during the claim process may be used as evidence in Court, should matter be litigated

Commencement of Proceeding

The Court process Interlocutory procedures: Discovery of documents (e.g. claim file – medical evidence) Interrogatories Subpoena for the production of documents Exchange of expert reports Mediation Allow exploration of other side’s case Narrow the issues in dispute Aimed at facilitating an early resolution of the proceeding

Subpoenas to Produce Used by a party to require the addressee to produce documents at the Court Addressee may be medical practitioner: e.g. treating doctor or the ‘Proper Officer’ in the clinic Subpoena must be: filed with the Court Served on or before the last date for service - conduct money may be provided, sufficient to meet addressee’s reasonable expenses of producing documents to the Court

Subpoena to Produce cont. Subpoena sets out: Document(s) to be produced (e.g. patient file) Production date Address details for the Court where the documents are to be produced – The documents are not to be produced to the party which has served the subpoena!

Subpoena to produce cont. Open to other side (e.g. patient’s legal representatives) or an ‘interested party’ to argue in Court against disclosure If an objection is filed, matter is listed for a directions hearing and a Judge will decide whether parties should have access to documents If no objection is filed, parties are able to inspect and copy the documents

Medical examination arranged by the Defendant Once the issues in the case have been clearly identified, independent medical experts may be engaged In Victoria, a plaintiff can be obliged to attend an independent medical examination arranged by the Defendant to allow the Defendant to assess the plaintiff’s claim If the plaintiff refuses without reasonable cause to attend such examination, the defendant may apply to have the proceeding stayed (Vic: Order 33.04 County Court Civil Procedure Rules 2008; Order 33.04 Supreme Court (General Civil Procedure) Rules 2015)

Exchange of medical reports Court rules provide for compulsory exchange of medical reports and for the admissibility of those reports Both parties are required to exchange medical reports in their possession, power or custody which they intend to tender, or the substance of which they intend to adduce in evidence at trial In addition, the defendant must supply all medical reports obtained in accordance with order 33, whether or not it intends to rely upon that report or adduce evidence contained within it

Briefing the Expert You are entitled to be fully informed about the case The letter of instruction should contain: Adequate and accurate history of key events Any assumption or facts on which you are to base your opinion Questions must be clear and precise and relate only to expert’s field of expertise Hearing date, if known Letter of instruction should be accompanied by a full brief of relevant paperwork All relevant material If you believe there is insufficient information, you are entitled to request further information

Legal Obligations The Expert Report – Procedural Requirements Most states and territories have an Expert Witness Code of Conduct that provide a prescribed format to which an expert report must follow Must be adhered to by doctors for the expert evidence to be admissible Note relevant code of conduct in the jurisdiction in which you are providing evidence A copy of the Code of Conduct is provided with the relevant letter of instruction with a specific request that you acknowledge the code in your report

Legal Obligations Overarching obligations of an Expert Witness – Duty to the Court Overriding duty to assist the Court impartially on matters relevant to expert’s area of expertise Paramount duty is not to the engaging party – expert is not an advocate for a party

Legal Obligations The Expert Report – Procedural Requirements Expert report must contain the following: The expert’s qualifications All material facts and assumptions upon which the report is based Reasons for opinion References to any material relied on to support the opinion Details regarding any examinations, tests or investigations relied

Legal Obligations The Expert Report – Procedural Requirements A statement that the expert understands the Expert Witness Code of Conduct and agrees to abide by the Code Expert report should make it clear where the opinion is qualified or conditional Effect of non compliance: Report may be inadmissible into evidence

Legal Obligations The Expert Report – Procedural Requirements It should be assumed that the report, any document or instruction given to the expert may end up in the hands of the opposing party Opinion in the report may be tested and challenged in Court

Trial - when When? - a date for the hearing will have been fixed by the Court You will be advised by the solicitor for the party calling you, or perhaps served with a subpoena Subpoenas: A subpoena should be served upon you personally, with conduct money (tram fare?) A subpoena is an Order of the Court, so treat it seriously The subpoena will list a date for attendance, which will be wrong The subpoena may to be attend to give evidence, or to attend to give evidence and produce documents If you take your file to Court, it may be called upon

Trial – why? Opinion evidence generally not admissible Why? – as a result of your report(s) or consultation(s) Two elements to your evidence: Fact Opinion Opinion evidence generally not admissible Exception – opinion based on specialised knowledge So: Need to establish specialised knowledge Need to show how your opinion follows from the application of your specialized knowledge to the facts

Trial – the Court Room

Trial – the process Sworn in Evidence in Chief Cross-Examination Expertise The Report Evidence Cross-Examination Testing of the opinion Re-examination The golden rule – listen to the question, think about it, then answer that question

Trial – be prepared! Be familiar with report If taking notes to Court, be familiar with the notes Assume scrutiny of your evidence, and the facts upon which it is based

Contact Details Sofia Papachristos Special Counsel Moray & Agnew Lawyers Ph. +61 3 8399 6196 Email: spapachristos@moray.com.au Chris Hanson Barrister Victorian Bar Ph: +61 3 9225 7222