A “major reform” proposed by the Quebec Bar Association and the physician’s provincial professional corporation to regulate medical expert witnesses intends to curb expert bias, eliminate the professional “career expert,” provide new medico-legal training for doctors while in medical school, and create a new quality assurance program to enforce new guidelines, beginning with the notion of who is an expert.
The reforms, outlined in a 23-page joint report by the Barreau du Québec and the Collège des Médecins du Québec, are largely viewed by the legal and medical community as a “step in the right direction” and is widely expected to improve the quality of reports and testimony issued by medical experts before the courts.
“The report establishes a framework to ensure that medical experts work within norms to improve the quality of their work,” observed Robert-Jean Chénier, who was consulted by the working group and is the lead partner of the medical law practice in the Québec region for McCarthy Tétrault LLP. “We have to continue to be more demanding of the opinions issued by experts, and better regulate them.”
Medical experts in Quebec have been the subject of mounting criticism over their partiality and the target of growing public grievances. The number of complaints lodged by citizens with the investigating officer of the Collège has surged from an average of 80 complaints a year before 2012 to approximately 120 a year since 2012, the majority of whom have lost their claims before administrative tribunals such as the provincial health and safety commission and the provincial automobile insurance board.“Generally what we see is that there are doctors who are hired (as experts) by employers and by unions in administrative tribunals, and we see a lot more partiality and attitude problems that can be disdainful than is the case in civil and criminal courts,” said the Collège’s secretary Dr. Yves Robert who was part of the 10-member working group.
But the problem is even more deep-rooted. For as long as expert witnesses have been allowed to testify, expert bias has always been a concern. “Experts are not there to espouse a position,” remarked Bernard Synnott, the batonnier of the Barreau. “An expert is a person who must enlighten the court in an independent and impartial manner. His opinion therefore should not be dictated by the party he is representing.”
At the same time, there has been growing public dissatisfaction with medical experts, particularly since the infamous case of Guy Turcotte, the former cardiologist who was found in 2011 criminally not responsible of killing his two children to death by reason of mental illness. “That case had a big impact,” remarked Dr. Karine Igartua, president of the Association of Quebec Psychiatrists, which earlier this year also published an 18-page report calling for tighter controls surrounding medical expertise. “We are concerned because experts are not portrayed in a flattering manner and that worries us way because of public confidence in experts and the justice system.”
Just as alarmingly, a growing number of doctors have become so-called professional experts, physicians who have stopped practicing and earn their living solely by providing medical expertise before the courts, said Dr. Robert. There are at present 2,500 physicians out of the province’s 20,000 doctors who provide medical expertise, many of whom make over a million dollars in revenues by working as experts. “One of the problems with many career experts is that they abandon their medical activities,” said Dr. Robert. “Now, it is our belief and one that is shared by all, that if one abandons one’s medical practice, you lose your expertise. One is precisely a medical expert because one has clinical experience.”
An effort by the Collège in 2006 to deal with some of these issues led nowhere. A guidebook to help medical experts that was published at the time is now barely used and more or less understood, admits Dr. Robert. The Collège took a different tack last year and approached the Barreau to develop a joint framework because “there are greater chances to obtain the kind of changes we want to instill” by working hand-in-hand with the legal profession, added Dr. Robert. The new Quebec Code of Civil Procedure (Code), scheduled to come into force next year 2015, also drove the collaborative effort. In fact, the new Code has an entire chapter devoted to expert evidence, and it clearly emphasizes that the purpose of expert evidence provided by a qualified expert is to “enlighten the court and assist it in assessing evidence.”
Under the new guidelines, doctors who want to qualify as an independent expert must have a minimum of five years of experience, be active in their field of expertise, and declare their strengths and weaknesses. The working group also recommends basic training on medico-legal aspects while in medical school, something that Quebec universities that offer residency programs are very interested in offering, said Dr. Robert. Remarkably, the report states that the basic training should also integrate the “notion of attitude,” that is, it should emphasise that physicians undergoing expert training should be impeccable, polite, respectful, mild-mannered and not hold value judgments.
The working group also recommends that the Collège introduce a new quality assurance program aimed at physicians who work as experts, something that is going to be introduced next April. The 2006 guidebook, which will be updated, will serve as the anchor of the quality assurance program. But the mechanics of the quality assurance program have yet to be worked out, concedes Dr. Robert. The Collège has yet to decide whether it will target three-to-five per cent of its members who are experts and ask them for the last report they submitted to the courts, or whether it will pursue experts who are the most solicited by administrative tribunals, or whether it will take aim at experts who make the most money by acting as experts. “By adding a quality inspection program, it introduces a standard of practice that we will keep an eye on, and it will ensure that medical experts are doing their work correctly,” says Dr. Robert.
The working group also proposed three possible models when hiring medical experts. The first one is the one currently in practice, that is, where each party selects its own experts. Another approach and one favoured by the new Code, is the “one common expert” in which lawyers from both sides of a case agree to an expert. But that model can lead to problems, suggested Dr. Robert, who pointed out the example of Dr. Charles Smith, once considered a leading expert in forensic child pathology, whose questionable conclusions led to innocent parents being charged with killing their children. And the third model suggested by the working group is a panel of experts, which is composed of three experts, one chosen by each party and the third selected by the two parties. The working group does not favour one over the other because it all depends on the circumstances of the case, said Synnott.
“You can’t impose one model over another because it won’t work,” said Synnott. “The ideal model is the panel of three experts but it would be onerous in terms of costs and the delays that it can engender. It’s a model best suited for cases where there is a lot of money at stake.”
Dr. Igartua, while pleased overall with the recommendations made by the working group, had hoped they would be bolder. Echoing a recommendation issued the report of the Association of Quebec Psychiatrists, Igartua had hoped that the Barreau and the Collège would have recommended that experts be chosen by the courts. “I would have liked to have seen this duel of experts be banished from the courts,” said Dr. Igartua, while adding that in more complex cases a panel of three experts is ideal. She would also have liked to have seen the panel urge lawyers to divulge the number of experts that they solicited — including written and verbal reports as well as preliminary and completed ones — to put an end to the growing issue of “shopping for experts.”
Both suggestions are not feasible, said Synnott. There is nothing wrong nor unethical for a lawyer to consult as many experts as he wishes. Sometimes, lawyers will consult different experts to address different issues, he pointed out. “The Barreau is against the notion of having the courts impose their experts,” said Synnott. “We are in a system where parties are masters of their case and it is they who decide what (evidence) is presented to the courts. The courts decide according to the evidence that is presented.”
The recommendations made by the working group are “certainly a step in the right direction” for people who have the means to hire experts – and that is far from the case, said Robert Tétrault, a law professor at the Université de Sherbrooke who has examined the issue of medical expertise. “The recommendations made by the committee make good sense but the basic problem has yet to be resolved,” noted Tétrault. “There is an imbalance in the justice system in that experts are not available for people who do not have the means.”
The Barreau and the Collège, acknowledging that hiring an expert can be prohibitive for many citizens, urges the provincial government and the medical organizations that represent doctors in labour negotiations to come to an agreement that would standardize experts’ fees. “We are suggesting that the government and the organizations that deal with the employment conditions of doctors to either negotiate an agreement over expert fees so that it is equitable for everybody or for the government to legislate the matter,” said Dr. Robert.
Now that the report is out, Chénier says there is one piece of the puzzle that needs to be addressed – judges. They have to show much less deference to medical experts and be more sceptical of their opinions, said Chénier. “The courts are not as demanding of the opinions issued by experts as they should be,” added Chénier. “Each judge in each case should really judge if the expert has done his work well, and not show too much deference. They have to be more demanding.”
This story was originally published in The Lawyers Weekly.