1. 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

2. 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

3. 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

4. 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

5. Commencement of Proceeding

6. 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

7. 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

8. 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!

9. 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

10. 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 County Court Civil Procedure Rules 2008; Order Supreme Court (General Civil Procedure) Rules 2015)

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. Trial – the Court Room

21. 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

22. 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

23. Contact Details
Sofia Papachristos Special Counsel Moray & Agnew Lawyers Ph Chris Hanson Barrister Victorian Bar Ph: