Working with expert witnesses in clinical negligence claims

The process of clinical negligence legal action depends mainly on opinions from independent expert witnesses.

We may ask an independent expert if, in their opinion, there is any possible liability related to your clinical management of the claimant.

Sometimes we do this early in the process, sometimes later.

What is an expert witness?

Experts are dentists or other relevant dental care professionals who have wide experience of a particular field of dentistry and dento-legal work, either still in practice or recently retired. They may be generalists or specialists, depending on the treatment at issue.

The DDU maintains a database of experts, to whom we offer training and provide instructions in the role of expert witnesses.

The duty of the expert is to help the court with matters within their expertise; this duty overrides any other duty to the person from whom they have received instructions or by whom they are paid.

The role of the expert witness

The expert's duty is to give objective, impartial advice to the court. They generally give their advice in a written report. They will comment on your clinical management and compare it with that of a reasonable dentist (or relevant dental care professional) with the same experience.

They may also be asked to give an opinion on causation, to see whether there is a direct link between the alleged negligence and the resulting harm being claimed by the patient. If there is no link, there is what is called a 'causation defence'.

Both sides may put written questions to an expert about their report, which must be answered.

Exchanging and disclosing evidence

Before exchange of expert evidence, the expert advising you is asked to comment on the statements prepared by the claimant. Experts meet formally after exchange of their expert reports and produce a joint statement listing areas of agreement and any outstanding differences of opinion.

Sometimes, when your case seems strong and is supported by clear expert advice, we may decide to disclose our expert evidence early in an attempt to encourage the claimant to withdraw the claim.

If the case goes ahead, the court may ask experts to give verbal evidence.

This page was correct at publication on 13/07/2018. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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