Acting as an Expert Witness – Guidance for Health Care Practitioners and Other Professionals
Recent changes to the Rules of Civil Procedure will affect doctors, psychologists, occupational therapists, engineers, accountants and all other professionals who may be called upon to testify in court as an “expert”.
The role of the expert witness is to assist the court on specialist or technical matters within their expertise. The expert’s duty to the court overrides any obligation to the person who is instructing or paying them. The expert must give opinion evidence that is fair, objective and unbiased. This means that all experts have a duty to act independently and not be influenced by the party who retains them.
Our firm routinely retains doctors, psychologists, occupational therapists, engineers, and accountants (to name a few) to provide expert opinions on various key issues in a case. Up to now, the expert’s role has been implicit whenever we retained a professional to act as an expert witness.
However, recent changes to the Rules of Civil Procedure have explicitly defined and clarified the expert’s role for the first time. As of January 1, 2010 all expert reports must contain the following information in order for the expert to testify at trial:
- The expert’s name, address and area of expertise.
- The expert’s qualifications and employment and educational experiences in his or her area of expertise.
- The instructions provided to the expert in relation to the proceeding.
- The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
- The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
- The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
- 7. An acknowledgement of expert’s duty (Form 53) signed by the expert.
The required Form 53 is reproduced below in its entirety. This form is new. It is an attempt by the Rules committee to make explicit what experts already knew – that is, they must act independently and they must remain fair, objective, and unbiased.
Courts of Justice Act (General heading)
ACKNOWLEDGMENT OF EXPERT’S DUTY
- My name is (name). I live at (city), in the (province/state) of (name of province/state).
- I have been engaged by or on behalf of (name of party/parties) to provide evidence in relation to the above-noted court proceeding.
- I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:
(a) to provide opinion evidence that is fair, objective and non- partisan;
(b) to provide opinion evidence that is related only to matters that are within my area of expertise; and
(c) to provide such additional assistance as the court may reasonably require, to determine a matter in issue.
- 4. I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.)
These changes to the Rules of Civil Procedure are a welcome amendment to the Rules as they serve to clarify the expert’s role and the expert’s duty to the court.
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