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    HomeNews & ArticlesThe Health Care Practitioner as ‘Expert Witness’

    The Health Care Practitioner as ‘Expert Witness’

    July 14, 2012  |  By:  Robert M. Durante

    There are strict rules that govern expert witnesses because only the expert witness is allowed to express their opinion(s) when they testify at trial. All other witnesses are considered to be ‘fact witnesses’ and they cannot express opinions when they testify at trial. Lawyers routinely retain certain health care practitioners because they want the expert to provide their opinion on specific issues in the case.

    Some health care practitioners reading this may be saying to themselves, “I’m not an expert, I can never testify”. The fact is, you are all experts in your respective fields. We routinely have many different health care practitioners qualified as expert witnesses at trial, including occupational therapists, physiotherapists, chiropractors, nurses, psychologists, physicians, engineers, accountants, and others.

    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.

    Relatively recent changes to the Rules of Civil procedure were aimed at eliminating the days of the expert as ‘hired gun’. Expert witnesses who come across as advocates for the party that retained them will always be met with skepticism by the trial judge. Up to now, the expert’s role has been implicit whenever we retained a health care practitioner to act as an expert witness.

    However, the changes to the rules have explicitly defined and clarified the expert’s role. The rules now require that all expert reports must contain the following information in order for the expert to testify at trial:

    1. The expert’s name, address and area of expertise.

    2. The expert’s qualifications and employment and educa- tional experiences in his or her area of expertise.

    3. The instructions provided to the expert in relation to the proceeding.

    4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

    5. 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.

    6. 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 a relatively new form. 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. The expert must sign the form which states in part: “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.”

    Experts are not expected to obtain the Form 53 on their own. The lawyer retaining the expert will provide them with a blank Form 53 for them to sign.

    There are some exceptions to the rule however and experts may be allowed to testify at trial even though they have not signed the Form 53. One exception involves treating physicians and other treating health care practitioners. These treating professionals often generate reports outside of the litigation context that contain relevant medical opinions.   these experts are usually allowed to express their opinions at trial even though they did not generate the report(s) for a party in the litigation, and as such they would not be in a position to sign the Form 53.

    Whether the expert testifies as a treating health care practitioner or as a medical-legal expert, expert witnesses will always play a crucial role in personal injury cases. Our firm relies heavily on the expertise of physicians, psychologists, engineers, occupational therapists, accountants, and many others on a daily basis.

    About the Author

    Robert M. Durante

    A graduate of McGill University and Queen’s University Faculty of Law, Rob joined Oatley Vigmond shortly after his call to the bar in 1997. As a partner at Oatley Vigmond, Rob is committed to...

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