Medicolegal documentation and expert evidence — formative SAQs

SAQ 1 (10 marks)

You are a general paediatrician. A solicitor acting for the defendant in an alleged negligence case instructs you to provide an independent expert report on the care of a 6-year-old who presented to another hospital with a missed appendicitis. [9]

1. Outline the structure of the independent expert report you would produce. (5) [7] [9]
2. Explain the difference between a witness of fact and an expert witness, and state where the expert's overriding duty lies. (3) [7] [12]
3. Describe two pitfalls in expert report-writing and how you would avoid them. (2) [9] [12]

Model answer

The report follows a fixed structure so the court can follow it. Open with the instruction and restate the precise question the court or party is asking. State your qualifications and sign a declaration of your overriding duty to the court. List the documents and records you reviewed. Give the relevant background and history. Set out the findings. Then give your opinion in its components — the standard of care (what a competent practitioner would have done), causation (whether any breach caused the harm), and the extent of harm — each tied to its factual basis in the record and to the evidence base. State your reasoning, acknowledge uncertainty and any assumptions, and end with a concise conclusion answering the question asked. [7] [9]

A witness of fact reports what they personally observed, did and found in their own patient's care, from the record, and does not normally offer independent opinion. An expert witness gives an independent, impartial opinion to assist the court, drawn from specialised knowledge. The expert's overriding duty is to the court, not to the instructing party — the expert is the court's educator, not a party's advocate. [7] [12]

Pitfalls: (1) advocacy bias — drifting into arguing the instructing party's case; avoided by consciously testing the opinion against the opposing view and conceding a fair point. (2) Going beyond expertise or giving an opinion with no stated factual or evidence basis; avoided by stating the boundary of your field and tying each opinion to the record and the literature, and flagging where information is incomplete. [9] [12]

SAQ 2 (10 marks)

You cared for a 2-year-old with a femur fracture and a history that did not fit the injury. You are now asked to write a statement for child-protection proceedings, and you have since received a subpoena to attend court. [2]

1. Describe the principles of good medicolegal documentation and how you would apply them to this child-protection statement. (5) [6] [11]
2. Describe the immediate steps you would take on receiving the subpoena. (3) [2] [11]
3. Explain how you would prepare to give oral evidence and survive cross-examination. (2) [3] [9]

Model answer

Good documentation is contemporaneous (written at or near the event), legible and attributed (dated, timed, signed every entry), objective, complete, and unaltered after the fact; it records the history and who gave it, the examination findings (positive and relevant negative), the differential, the reasoning behind decisions, the plan, and who was informed. For the child-protection statement, give a structured factual report: the history, a timed and diagrammed description of the injury with measured size and site, an opinion on whether the findings are consistent with the history, and a clear separation of observed fact from inference. Keep the statement free of derogatory or speculative comment, because it may be read aloud. [6] [11]

On receiving the subpoena: read it carefully and note the return date; do not alter, add to, back-date or destroy any record (correct only by a signed, dated single-line strike-through); contact medical indemnity and your department before responding; and preserve all relevant records. [2] [11]

To prepare: re-read the statement and the key records; meet counsel to understand the likely cross-examination lines; and rehearse the discipline of the box — listen to the whole question, answer only what is asked, stay within your expertise, tell the truth, keep fact separate from opinion, and concede a fair point rather than fight it. Do not advocate for a party. [3] [9]