Meet the expert witness: Orthopaedic Surgeon

Consultant Orthopaedic Surgeon Graeme Carlile on the appeal of medico-legal work

Orthopaedic surgeons are highly sought after as expert witnesses. Not only are their specialist skills useful in helping legal professionals determine the outcomes of personal injury (PI) and clinical negligence claims, but they can be called upon in criminal, family, employment and regulatory hearings.

There is no statutory minimum qualification to be an expert witness in the UK, but medical professional standards require surgeons to be consultants before they pursue medico-legal work. This makes it a career path reserved for those with the most in-depth and specialist knowledge in their field. It is a prestigious occupation, but one carrying considerable risk.

The Academy of Medical Royal Colleges’ Guidance on Acting as an expert witness, states that medical and healthcare expert witnesses should undertake specific training for being an expert witness and the expectations and responsibilities of the role. For example, that their overriding duty is to the court or tribunal, not to the party who is instructing or paying them. This guidance is endorsed by the likes of the Royal College of Surgeons and the General Medical Council (GMC). 

Experts should be prepared for intense scrutiny of their reports, which in many cases will happen inside a courtroom. Those who fall short of the professional standards set out by the various rules and regulatory guidelines that apply to their work, can expect criticism. This may take the form of reprimand from a judge, or a regulatory body, and carries a high reputational risk.

However, with the requisite experience and a commitment to the legal process, orthopaedic surgeons can find financially rewarding and intellectually stimulating work in the legal sphere. Medico-legal work enhances clinical practice by enabling experts to analyse a range of medical records from different hospitals and build on their expertise alongside their clinical practice.

In this article, Consultant Trauma and Orthopaedic Surgeon Graeme Carlile discusses why he decided to move into medico-legal practice, the rewards and challenges associated with the work, and what his advice would be for those considering a similar path.

Meet the expert

Carlile became an expert witness over ten years ago and has undertaken training with leading expert witness training provider Bond Solon, including the Cardiff University Bond Solon (CUBS) Civil Expert Witness Certificate).
He says: “I got a sense for the possibility of undertaking this work before I became a consultant, because some of my trainers were expert witnesses.” 

MedCo, the mandatory system for sourcing medical reports in road traffic accident (RTA) soft tissue injury claims in England and Wales, was in its infancy at the time. Carlile had gained some experience ahead of its 2015 launch. MedCo, which charges an annual retention fee, insists experts maintain adequate CPD annually and undertake expert witness training to register with the portal, before they can be instructed - a development Carlile approves of.

He says: “To increase your validity as an expert and to understand the procedural aspects of expert work, experts should undertake appropriate medico-legal training. The first course I went on before really getting into expert witness work in a substantial way was Bond Solon’s Excellence in Report Writing course [now called Report Writing for Expert Witnesses] and I went on to eventually complete the CUBS Certificate.”

Beyond MedCo, new experts can add their details to a range of expert witness registers and directories to attract instructions. Bond Solon’s National Register is available to join for those who have completed its CUBS Certificate or University of Aberdeen Bond Solon (UABS) Expert Witness Certificate.

Fees are not routinely disclosed, although some experts do publish them on their websites. Carlile points to the Bond Solon Expert Witness Survey for a ballpark, which last year was around £250 per hour. 

Why become an expert witness?

Carlile says there were various aspects of medico-legal work that appealed to him.

He continues: “If we're being very honest about it, none of us are doing this work for free. It is an additional source of income, and compared to other sources of private practice, it benefits from being flexible. 

“Other than physically reviewing and examining the claimants or defendants, the report preparation can be done at any time you're free, in the evenings or at weekends, whereas with private operating, you're tied down to set sessions.”

Moreover, he says, the work is insightful offering an otherwise unseen perspective on how the legal world influences medical practice. 

Carlile adds: “The reality is, and many consultants or trainees may not realise this until it becomes a critical point in their NHS practice, but everything we do in the NHS has a legal slant to it. Clinic letters are legal documents, patients do write complaints and things unfortunately don't always go to plan. In my view having experience in the medico-legal world makes you a better practising consultant in other areas because you have a greater awareness of the bigger picture.”

What types of cases will orthopaedic surgeons be instructed on?

There are two main areas of practice that orthopaedic surgeons will be instructed to opine on, PI claims – primarily via MedCo – and clinical negligence. Carlile advises new experts to start with PI and graduate into clinical negligence work once they have gained some working experience. 

He says: “Clinical negligence work requires a lot more thought and a lot more effort. It is not always cut and dry. Experts need to be able to consider the issues at hand and think around the areas of contention in in clinical negligence, and it carries higher risk. 

“Clinical negligence work is often charged at a higher rate than standard personal injury work, but it's charged at a higher rate because the risk is higher and anyone coming into medico-legal work needs to understand this. Any case can go to court, but you're more likely to go to court with higher value and more serious cases.”

You’re also more likely to be tested as an expert with higher value cases.

Carlile says: “It is not unusual to have case conferences with solicitors and barristers. Some of those barristers may be fairly senior KCs who are well-known across chambers and in the capital.”

Challenges at court and beyond

Here is where training becomes indispensable. As Carlile points out, experts will at some point face cross-examination in court, but there are several other junctures during a dispute at which an expert may be challenged. To succeed in the role, experts should have undertaken training not only to familiarise themselves with these various parts of the process, but also to know how to respond to them.

Carlile explains: “Experts should not be surprised if their report and their opinion is tested not only in court, but prior to court. For example, in case conferences with your own side, and on occasion experts may well be asked to attend settlements.

“The court may ask them to produce a joint statement with their opposite number on the other side of the case, which can be an uncomfortable experience for many experts. Joint statements come with their own civil procedure rules and it would be remiss of an expert not to understand the rules and expectations when it comes to joint statements.”

Moreover, experts are often blindsided when a case they assumed was resolved, resurfaces months or even years later, prompting the need to re-familiarise themselves with the report and face more questions.

Beyond the thrill of the courtroom, medico-legal experts must have a robust system in place, whereby old reports can be retrieved if needed and confidential data is compliantly stored and protected.

Carlile says: “From a tech point of view, you need a robust and secure system for saving reports for many years. You should also be registered with the Information Commissioner's Office and have appropriate indemnity to cover the work that you do.

“There will be times where the work naturally ebbs and flows, and if you have a number of cases progressing, be that to conference, joint statement, Part 35 CPR questions, or heading towards court, you may find that you have a very busy couple of weeks.

“Unfortunately, if you take the money, you have to provide the service and fit that in around your family life and NHS commitment, so it's just something to be aware of.”

If I knew what I know now

Reflecting on what he wishes he had known at the outset, Carlile is at pains to recommend new experts start out slowly and build a caseload gradually as they gain more experience. 

He says: “There might be a temptation to dive in with both feet and take on as much work as possible. It would be sensible to take on a moderate amount of work, so if you do have a particularly busy time, you've got capacity to do that work properly. Rushing the work is not advisable. You invariably make mistakes when rushing, you need to have time to consider the options and consider the case.”

The good news is that in Carlile’s experience there is no shortage of work. However, he has noticed a change to the type of work coming across his desk. 

He says: “Over the last eight years, I've observed that the type of claimant has changed. When I started personal injury work, most claimants were of working age. Increasingly, we're seeing much older claimants. We are living longer and older people are out and about, they're still driving, they're getting involved in accidents. But an older claimant is a different proposition to somebody in their 20s. 

“An older claimant will invariably have more medical history that needs to be considered, they may have preexisting conditions. The volume of notes is going to be higher. The considerations as to the impact of the injury will be greater, because they may have other factors that need to be taken into consideration, so it can be more complex.”

Despite the risks and complexities, Carlile says the work is intellectually stimulating and an enjoyable complement to his clinical practice. His top advice is for consultant’s considering medico-legal to pursue high-quality training and start slow. 

He concludes: “You wouldn't do an operation without reading the book, watching the video, and maybe assisting a couple of those procedures with somebody else, so why would you start expert witness work with no clue? You're just setting yourself up for failure.”