INSIGHTS: When is an expert the right expert?

February 29, 2016

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Posted by Julie Somerville, Principal Meridian Lawyers:

Expert conclaves are here to stay and, despite there being differing views as to their cost effectiveness, issues often arise as to who should participate in the conclave and who possesses the correct expertise to opine on an issue. Last year I wrote about the need to ensure that the composition of the expert conclave was correct and highlighted some cases in which the Courts have considered whether experts of differing specialties should confer.

But what happens when an expert provides an opinion on issues beyond what it was retained to do?  Tinnock v Murrumbidgee Local Health District makes it clear that provided the three conditions of admissibility are met, the expert’s opinion may nevertheless be admissible.

Dr Rea, a  specialist plastic and reconstructive surgeon with a particular interest in hand surgery, was retained to provide an opinion on quantum issues – that is, to assess disfigurement resulting from multiple abdominal surgeries. Dr Rea wasnot retained to opine on liability issues.

However, Dr Rea’s report included an opinion on the manner in which the risks of post surgical infections were managed by the defendant. The defendant was a general surgeon with an interest in repairing abdominal hernias.

The defendant argued that Dr Rea’s opinion, so far as it related to liability, was inadmissible as Dr Rea was a specialist plastic surgeon with a different specialised knowledge to that of a general surgeon with an interest in repairing abdominal hernias .

Justice Campbell determined that whilst Dr Rea was a specialist plastic surgeon, his opinion on liability was admissible as  the issue of the management of the risk of post-surgical infection is likely to be common to all surgeons.

The ability of medical experts of differing specialties to opine upon the conduct of medical peers of another subspecialty in medical negligence proceedings is not new. It also arises in the context of disciplinary hearings before the NSW Civil and Administrative Tribunal, and indeed even the composition of the Tribunal determining the matter. What is now clear is that the precise nature of the expert’s specialty will not be the determining factor, the Courts will carefully consider:

  • the precise issue in dispute in the proceedings;
  • whether the expert has specialised knowledge in relation to that issue; and
  • whether the opinion expressed is based upon the expert’s specialised knowledge.

Whilst not referred to in the judgment, given that the role of an expert is to assist the  Court  on issues relevant to that expert’s specialised knowledge, it is not surprising that the Courts are tending to admit such opinions. Of course, the parties will still be able to make submissions as to the weight that should be given to the opinion.

Meridian Lawyers has extensive experience in insurance litigation generally and in particular medical negligence litigation and disciplinary complaints against health and allied health practitioners. Please contact me if you are interested in learning more about how we can work with you in these areas.

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