Expertise vs. Reasoning: A New Style of Medical Negligence Reporting

Should an expert witness report be written for the expert, or for the people who actually have to use it?

I have been reconsidering the way I structure clinical negligence reports.

Doctors are trained to write medically. We describe the history, explain the science, review the literature and eventually arrive at an opinion.

But an expert report has a different purpose.

The solicitor, barrister and ultimately the judge need to identify the questions in dispute and understand how the evidence leads the expert to an opinion.

That has led me towards a more issue-based structure.

I now begin with an Executive Opinion. This identifies the principal issues, where I consider the standard of care was met or not met, and the question of causation that require consideration.

The Catalyst for Change

The shift in reporting styles is driven by several critical factors within the modern legal landscape:

• Judicial Criticism: Judges have frequently criticized experts for writing lengthy treatises on medical science while burying their actual conclusions on liability in the final paragraph.

• Cost Management: Straining under the financial weight of litigation, the legal system requires reports that allow rapid assessment of a case's merits to encourage early alternative dispute resolution (ADR).

• Clarity over Complexity: Separating the legal findings from the technical data helps both claimant and defendant solicitors see where the case 'lives or dies' without getting bogged down in medical semantics.

The detailed report then takes each disputed issue separately:

• Evidence: What do the contemporaneous records and witness evidence actually show?

• Accepted practice: What was the standard expected at the time, supported where appropriate by national guidance and literature?

• Analysis: How does the care provided compare with that standard?

• Clinical significance: If there was a difference, why does it matter?

• Opinion: What conclusion can reasonably be drawn?

• Areas of uncertainty: What cannot be established from the evidence?

Causation is considered separately. A departure from accepted practice does not necessarily mean that the departure caused the injury.

I have also moved the traditional extended CV towards the back of the report. My qualifications and experience matter, of course, but they are not the reason the legal team opened the report. They opened it because they need an answer to a question.

The change sounds simple, but it has altered the way I analyse cases.

Instead of asking: 'What medical knowledge can I tell the reader about this case?' I increasingly ask: 'What question does the court need my expertise to answer, what evidence allows me to answer it, and where are the limits of that evidence?'

A solicitor recently gave me encouraging feedback on this approach.

Perhaps expert reports should contain less demonstration of expertise and more demonstration of expert reasoning.