MEDICAL LEGAL REPORT WRITING

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What is the Role of a Medical Expert?

• The primary role of the expert is “assist the trier of fact” on matters that fall outside the common knowledge or experience of a judge or jury.

• The expert’s function is to provide the trier of fact with a ready-made inference from the facts to be proven at trial.

• The expert is expected to be unbiased. They are not an advocate for either side. They are there to assist the court.

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Admissibility of Evidence in Court

• Evidence is called admissible if it can be considered by the court in making its decision.

• The court is charged with determining facts so opinion evidence is generally inadmissible evidence.

• One exception to this rule is expert opinion evidence if it properly qualifies.

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What Qualifies an Expert Opinion to be Admissible?

There are four criteria required to make an expert opinion admissible

•The opinion must be relevant to an issue in the preceding.

•The opinion must be necessary to assist the trier of fact.

•The opinion must not be barred by an exclusionary rule.

•The opinion must be from a qualified individual. 

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What is a Relevant Opinion?

• To be considered relevant an expert opinion must be both logically relevant and have probative value.

• Opinion is logically relevant when it tends to make the existence or nonexistence of a material fact more probable or less probable than it would be without the evidence. (i.e. Does it establish the fact?)

• An opinion has probative value if it is reliable and the benefits of its admission outweighs the prejudice of it being entered into evidence.

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When is an Opinion Necessary?

• Necessity is the most important criterion for the admissibility of an expert opinion. An opinion that is not necessary is not be admissible in the first place.

• An opinion is necessary if:• it relates to a fact that cannot be appreciated by the court due to

the technical nature; or

• the correct judgment cannot be formed by ordinary people without expert advice

• Necessity must be assessed in light of its potential to distort the fact-finding process.

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What Can Exclude an Expert Opinion?

• If the court concludes the expert is not forming their own

independent opinion:

• experts who have relied on the opinions of other experts on the

same issue may be seen not to have formed their own opinion.

• If the court concludes the expert is being an advocate for

a party. • Experts should be cautious that the written opinion does not appear to argue a point,

rather than simply state a conclusion and the basis on which the conclusion was

drawn.

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When is the Expert a Qualified Expert?

• Where the expert has special skill, knowledge, training or experience on a particular subject.

• Qualification of an expert is the first step in having the expert’s evidence admitted.

• It is the role of counsel to have the court accept the expert as one qualified in their field.

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The Rules of Court: Why is a Report Required?

• The court rules require the opinion of an expert be submitted in writing in advance. This allows the opposing party to be prepared to address the issues at trial and for parties not to be surprised by expert opinions.

• The expert report must be provided to the opposing side 84 days before trial. In the case of a rebuttal report, it must be provided 42 days before trial

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Is an Expert’s Attendance in Court Always Necessary?

• An objective of the rules of court are to not require the attendance of an expert in court.

• Technically the expert’s appearance in court is only permitted if the opposing party wants to cross-examine the expert or counsel believes direct examination is necessary to clarify terminology in the report or make it understandable.

• Best Practice: In most cases it is most prudent for the expert to be called to provide testimony. During their testimony they can only express opinions included in their written report.

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Technical Requirements of an Expert’s Report

• The expert’s name, address and area of expertise.

• The expert’s qualifications, employment, education and experience in their area of expertise.

• The instructions provided to the expert in relation to the proceeding.

• The nature of the opinion being sought in the issues in the proceeding to which the opinion relates.

• The expert’s opinion respecting those issues.

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Technical Requirements (cont’d)

• The expert’s basis for their opinion including:

• A description of the factual assumptions on which the opinion is based.

• A description of any research conducted by the expert that led them to form the opinion.

• A list of documents relied on by the expert in forming their opinion.

• A certified statement indicating the expert is aware they are not an advocate for any party, that they have a duty to the Court and will give evidence in accordance with that duty.

• Finally, the report must be signed.

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Area of Expertise

• The expert’s area of expertise must be supported by their qualifications.

• The expert should be specific about their area of expertise.

• An expert’s area of expertise may change from one case to another. In any given case an expert need only specify the qualifications necessary to answer the question asked of them.

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The Expert’s Qualifications

• This requirement of a report is typically fulfilled by including a copy of the expert’s CV or by providing a detailed opening paragraph regarding the expert’s education, employment and research history; including any previous court appearances as an expert.

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Instructions to the Expert

• The instructions provided to the expert by counsel will likely include reviewing materials, and assessing an individual.

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Statement of the Nature of the Opinion Sought

• The expert should be certain the question(s)/issues they are being asked by the counsel retaining them are clear and understandable.

• In the report the expert must reference the question(s)/issues asked by counsel.

• Best Practice: Review the question(s)/Issues being asked and work with counsel to ensure they are framed correctly.

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Clear Statement of the Opinion

• The opinion should be structured to clearly answer the question(s)/issues posed.

• The judge’s role is to ensure that the expert stays within the proper bounds of their expertise.

• Overreaching by expert witnesses is amongst the most common fault leading to reversals on appeals. This occurs when counsel has not taken care to frame the question properly.

• Best Practice: Care is taken to ensure the question is within the expert’s area of expertise. Answering the question directly and concisely avoids the appearance of overreaching by the expert.

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The Expert’s Reasons for Reaching the Opinion

• Reasons include factual assumptions, research conducted, and documents reviewed.

• Factual assumptions will be detailed in a separate paragraph and the source of those assumptions should be referenced. • The accuracy of the factual assumptions is critical. If an expert’s

opinion is based on a factual assumption that is proven to be incorrect it can significantly undermine the weight given their opinion.

• Any additional research conducted by the expert should be briefly explained. Additional research is not always necessary or even the norm.

• A list of the documents relied on by the expert should be included as an appendix.

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Common Mistakes

• Protracted opinions.• Offering an opinion outside of the stated area of expertise.• Stating unnecessary facts.• Providing a detailed summary of their interview with the

patient.• Providing a summary of the reports or documents

provided to them unless there as a specific purpose that relates to their opinion (a list of those reports or documents is sufficient)

• Providing editorials on documents they have referred to.

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Common Mistakes (cont’d)

• Providing opinion that is argumentative • Not clearly setting out in separate sections:

• the expert’s qualifications• the nature of the opinion sought (the question being asked)• factual assumptions and material reviewed• the opinion itself

• Not numbering paragraphs• Providing unnecessary appendices or appendices that are

not streamlined to include only the facts necessary for the expert to reach their opinion.

• Single spacing of the written opinion

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What the Court Prefers to See in Expert Opinion Letters

• Clearly delineated sections of the report and numbered paragraphs.

• A clear statement of the expert’s qualifications.• A concise and clear list of factual assumptions within the

report itself (not in appendices)• A clear statement of the question being asked of them.

(best quoted from the instruction letter and not rephrased in any way)

• A direct, concise and clear statement of the opinion, and then the reasons for arriving at this opinion. If multiple questions are asked in the instruction letter than the opinion section should be numbered respectively.

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Counsel’s Role in Assisting the Expert

• Counsel is permitted to ask an expert to clarify their opinion letter.

• Expert’s can rely on counsel to ensure their report is understandable to the trier of fact.

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Summary

• Establish the Question/Issues to be answered

• Establish your qualifications

• Work within the framework established by the Rules of Court and Rules of Evidence

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