Becoming a medical expert witness

What a medical expert witness does

You give an independent opinion to help the court, not to help the side that pays you.

A medical expert is instructed (formally asked), usually by a solicitor and sometimes jointly by both sides, to answer specific questions. You review medical records and other documents, often examine the person (in person or by video, where appropriate), and write a report setting out your opinion and your reasons. Afterwards you may be asked written questions about the report, meet the other side’s expert to narrow the issues, and occasionally give evidence in court.

Most medical expert work is in civil claims such as personal injury, industrial disease (including noise-induced hearing loss), clinical negligence and military claims. Medical experts also work in family proceedings, criminal cases, tribunals and inquests, each with its own procedural rules.

Who can become a medical expert

There is no separate legal qualification. What matters is genuine expertise, current knowledge and understanding the expert’s role.

• Your profession. Doctors in almost every specialty act as experts: orthopaedic surgeons, ENT surgeons, GPs, psychiatrists, neurologists, A&E consultants and many more. Practitioner psychologists and other registered clinicians, such as physiotherapists, occupational therapists and nurses, act as experts in their own fields.
• Your experience. Courts and instructing firms look for substantial experience in the specific area you report on. For most experts, that means consultant or equivalent level, or established GP practice for GP reports. You should only give opinions within your own expertise.
• Being up to date. The Academy of Medical Royal Colleges expects experts to be fully up to date in their field. Instructing firms usually prefer experts in current or recent clinical practice, because the opinion must reflect current standards.
• No legal background needed. You do not need a law qualification. You need to understand your duties and the rules, which is what expert witness training covers.

Your duty to the court

Your overriding duty is to the court, and it comes before any duty to whoever instructs or pays you.

The key principles in civil cases come from CPR Part 35 (the part of the Civil Procedure Rules, the rules for civil courts in England and Wales, that deals with experts), Practice Direction 35 (official guidance on how to follow those rules) and the Civil Justice Council Guidance (2014):

• Be independent and objective. A useful test: would you give the same opinion if the other side had instructed you?
• Stay within your expertise. Say so promptly if a question falls outside it.
• Consider all the material facts, including those that do not support your opinion.
• Be clear about what you know, what you assume and what you rely on. Say where an opinion is provisional or qualified.
• Tell those instructing you promptly if your opinion changes.
• Never accept a fee that depends on what you conclude or how the case ends. The Civil Justice Council Guidance strongly discourages such arrangements.

The GMC’s guidance on providing expert evidence (effective 30/01/2024) applies the same principles to doctors as a professional standard, so a poor or biased report can become a fitness-to-practise matter (one the GMC can investigate). Since the Supreme Court’s decision in Jones v Kaney (2011), experts can also be sued for negligence by the party who instructed them, which is one reason indemnity cover matters.

The rules you will work under

Which rules apply depends on the kind of case, and your profession adds its own guidance.

• Civil cases (England and Wales):
  • Civil Procedure Rules Part 35
  • Practice Direction 35
  • Civil Justice Council, Guidance for the instruction of experts in civil claims (2014)
• Family cases: Family Procedure Rules Part 25 and its practice directions.
• Criminal cases: Criminal Procedure Rules Part 19.
• Your profession: for doctors, the GMC’s guidance on providing witness statements or expert evidence as part of legal proceedings; for all healthcare professionals, the Academy of Medical Royal Colleges’ guidance on acting as an expert or professional witness (2019), which seven healthcare regulators have confirmed is consistent with their standards.
• Road traffic whiplash claims: experts writing the first medical report in fixed recoverable cost road traffic soft-tissue injury claims (lower-value claims where the legal costs that can be recovered are fixed) must be accredited by MedCo, which needs its own online training and assessment and annual CPD. Probita does not take MedCo cases, but you may want to know about it.

Scotland and Northern Ireland have their own rules; this guide covers England and Wales.

What goes into an expert report

Practice Direction 35 sets out what every civil expert report must contain.

Your report is addressed to the court and must include:

• your qualifications
• what you were instructed to do, and the material instructions
• the facts and documents you relied on
• which facts are within your own knowledge
• who carried out any tests or examinations
• where opinions in your field differ, the range of opinion and why you hold yours
• a summary of your conclusions
• any qualifications to your opinion
• a statement that you understand and have complied with your duty to the court
• the statement of truth (a signed statement that the facts are true and the opinions are your own) in the wording Practice Direction 35 sets

Making a false statement in a report verified by a statement of truth, without an honest belief in its truth, can lead to proceedings for contempt of court.

After the report

Your work on a case can continue after the report is sent.

• Written questions (Part 35 questions). Either side may put written questions to clarify your report. Your answers become part of the report.
• Discussions between experts. The court may direct experts from both sides to discuss the case and produce a joint statement of what they agree and disagree on, and why.
• Court. Only a small share of cases reach trial. If yours does, you may give oral evidence and be cross-examined (questioned by the other side’s lawyer). Sometimes experts in the same field give evidence together (“concurrent evidence”).

Practical set-up

Put these in place before you accept your first instruction.

• Indemnity. Ask your medical defence organisation or insurer whether your cover includes medico-legal and expert witness work. If not, arrange it before you accept instructions.
• ICO registration. The ICO’s guidance is that a doctor or other health professional writing medico-legal reports needs to pay the data protection fee. Check with the ICO if your circumstances are unusual.
• Data security. You will handle sensitive medical records. Use secure, encrypted systems; never use personal email for records. Keep records only as long as you need them.
• Your employer. If you are employed (in the NHS, for example), check your contract and job plan for rules on private work, and avoid conflicts of interest, such as reporting on your own employer’s care.
• Appraisal and revalidation. Doctors must include all their roles, including medico-legal work, in their annual appraisal, which supports revalidation (the GMC’s regular check that a doctor is fit to keep their licence).
• Tax. Expert fees are self-employed income (or company income, if you trade through a limited company). Register with HMRC and keep records.
• Your expert CV. Keep it separate from your clinical CV, focused on the areas you report on, and including your expert witness training.

Common pitfalls

These are the mistakes to avoid.

• Straying outside your expertise, or answering questions you were not asked.
• Writing as an advocate for the side instructing you.
• Not stating the facts and assumptions behind each opinion.
• Missing or altering the required declarations and statement of truth.
• Taking on more cases than you can complete on time.
• Assuming your clinical indemnity covers expert work.
• Handling records insecurely.

How Probita supports new experts

We welcome applications from experts at the start of their medico-legal work.

• You can apply before finishing your expert witness training. Tell us where you are, and we will tell you what we need.
• We take care of the administration (booking, records, chasing and payment), so your time goes on the opinion.
• Every case comes with an AI-prepared index and summary of the medical records for you to check against the originals. Your opinion is always your own, and we never alter it.
• Before release, we check reports for factual accuracy and compliance, such as declarations, the statement of truth and questions answered. We never change your opinion.

See also Probita for medical experts.