The Royal College of Surgeons issues new guidance for surgeons acting as an expert witness

Medical experts should undergo appropriate medico-legal training before they appear as an expert witness, the Royal College of Surgeons of England advises in new guidance published today.

‘The Surgeon as an Expert Witness - A Guide to Good Practice’ sets out the role a surgeon should play when acting as an expert witness in civil¹, criminal ² and coroners’³ cases.

The guidance comes after two independent reviews - Professor Sir Norman Williams’ Gross negligence manslaughter in healthcare rapid policy review⁴; and the Independent review of gross negligence manslaughter and culpable homicide⁵, led by Mr Leslie Hamilton – highlighted a need to improve the quality and consistency of expert witnesses in gross negligence manslaughter cases. 

The Williams Review noted that in the case of the surgeon Mr David Sellu, his conviction for manslaughter by gross negligence was successfully appealed and quashed by the Court of Appeal, ‘in part due to the manner in which expert witness evidence was used during the trial’.⁶ The judgment in the Court of Appeal noted that the prosecution asked the expert witnesses the leading question: ‘was this gross negligence?’. This was in fact a question for the jury to consider. The judgment stated: “…the way in which the issue of gross negligence manslaughter was approached (and, in particular, the consequential direction to the jury) was inadequate’.  As a result, the conviction is unsafe and is quashed.” ⁷

The RCS’s guidance advises surgeons that:

• Expert witnesses should not give opinions to the jury upon questions that they are not entitled to answer. For example, a surgical expert would be entitled, if asked, to assert whether or not a surgeon’s conduct (related to a criminal case) equated to substandard care. But whether or not that care was ‘exceptionally bad’ would be for the jury to decide. Whilst the Crown Prosecution Service (CPS) might pose such a question, (hoping for an affirmative reply) the expert should not answer it, since his or her role is restricted to the binary question; substandard care or not.

The consultant cardiac surgeon, Mr Leslie Hamilton, led the General Medical Council’s Independent review of gross negligence manslaughter and culpable homicide. He said: “This guidance provides an excellent starting point for anyone considering becoming an expert witness.  Criminal and civil courts cannot function without expert witnesses. It is therefore vital that expert witnesses realise the fundamental importance of their role and why they must not step outside their area of expertise.”

The role of surgeons as expert witnesses is particularly important to ensure that claims for allegedly negligent care are resolved fairly, and as quickly as possible. In 2018/19 NHS Resolution received 10,678 new clinical negligence claims. Overall, claims are falling as a proportion of the number of treatment episodes, but costs are rising. The annual cost of harm for clinical negligence compensation for secondary care in England for 2018/19 was approximately £9 billion.⁸

Professor Neil Mortensen, Vice President of the Royal College of Surgeons of England and a consultant colorectal surgeon, said: “With a continuing rise in the numbers of medico-legal claims, this new guidance is very relevant and timely. Patients, surgeons, lawyers and the courts rely on experts for independent, objective, balanced and contemporary advice. We hope this summary of good practice will help to improve the quality of expert evidence, in what can often be difficult and distressing circumstances for patients and surgeons.  I myself have both acted as an expert - and needed the help of experts - in my own practice. I therefore fully understand how important the role of the expert witness is.”

The RCS’s guidance advises surgeons acting as expert witnesses that they should:

• have been a consultant surgeon for at least five years;
• only take on cases that they encounter as part of their routine practice. For example, it would not be appropriate for a vascular surgeon to give their view on the standard of diabetic care, such as that relating to retinal surgery; 
• the same applies to sub-specialisation - if the case turns on an issue lying within a surgeon’s surgical speciality, but outside their own field of work, they should be wary of accepting instructions; 
• they should not provide medico-legal services after three years from retirement; 
• have indemnity - anyone who acts as an expert witness is at risk of litigation.

Notes to editors

1. Most legal instructions to a surgical expert derive from clinical negligence litigation. This may occur when a patient or their family seek a remedy from an NHS Trust for an alleged unexpected clinical outcome.  The question for the expert witness may be related to the alleged poor standard of care; the causative link between that and harm caused; or the condition and prognosis of the patient.
2. Surgical experts are rarely instructed in relation to criminal cases. However, they may be required to offer their expert view about an injury inflicted due to alleged violence. The judge will set out a summary of the prosecution and defence cases, but will leave the decision over guilt to the jury. The guidance reminds surgeons that: "For this reason, it is vital that expert witnesses do not give opinions to the jury upon questions that they are not entitled to answer."
3. Surgical experts will sometimes be instructed by a coroner to give evidence in relation to why a patient has died, even though this patient was not in their care. Less frequently, expert surgeons are instructed by the Coroner to comment on whether a death could have been avoided by different management.
4. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717946/Williams_Report.pdf
5. https://www.gmc-uk.org/-/media/documents/independent-review-of-gross-negligence-manslaughter-and-culpable-homicide---final-report_pd-78716610.pdf
6. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717946/Williams_Report.pdf
7. https://medicalnegligenceteam.com/public/images/images/1481530424.pdf
8. The source for this information is here
9. The Royal College of Surgeons of England (RCS) is a professional membership organisation and registered charity, which exists to advance surgical standards and improve patient care.

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