Working with expert witnesses in clinical negligence claims

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

Society and patients in general are becoming more aware of consumer rights and litigation. Often, patients may request an independent opinion to support their cause.

The DDU may also ask an independent expert if, in their opinion, there is any possible liability related to your clinical management of the claimant. This is so we can carefully assess if a claim against you can be successfully defended, or if not, to suggest that the claim is settled.

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, and are central to the preparation and development of clinical negligence cases.

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

The duty of the expert is to help the court with matters within their expertise. This duty overrides any other duty to the person who instructed or paid them.

The role of the expert witness

The expert's duty is to give objective, impartial advice to the court, generally in a written report. They will comment on your clinical management and compare it with that of a reasonable dental 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

The expert advising you is asked to comment on the statements prepared by the claimant. Once their report has been approved it might be sent to the claimant of their solicitor.

Experts sometimes meet formally after their reports are exchanged 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, which can often encourage the claimant to withdraw the claim.

If the case goes ahead, the court may ask experts to give verbal evidence, so it is important to make sure opinions can be substantiated and justified in order to get a favourable outcome.

This page was correct at publication on 04/08/2021. 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.