Personal injury compensation claims in Queensland require expert medical evidence, to assist the solicitors, barristers and judges who give advice about, or decide, the claim. That evidence can be factual or opinion evidence and can be given by treating doctors or non-treating independent doctors.
Independent Non-Treating Medical Experts
The independent non-treating doctor is permitted to give opinions about relevant medical matters. A lay witness cannot give an opinion. This is because the Court is qualified to form its own opinion to make decisions about the facts of a case if they relate to lay, rather than, expert matters. The role of an expert witness is therefore to remove the Court’s disadvantage in not understanding the science of a field of expertise, so that the Court is in the same position as an expert, to form the opinion and make the necessary decision. An expert witness should therefore not ‘swear the issue’ in their report or oral evidence, by using terms such as ‘negligence’ or ‘breach of duty of care’ because it is not for a witness to decide the legal issues. The Court will do that.
Treating Medical Witnesses
Doctors who have provided treatment to a plaintiff are not permitted to give opinion evidence. This is because the AMA’s ethical guidelines for doctors prohibit treating doctors from giving opinion evidence about their patient to a Court. The doctor patient relationship is not considered to be consistent with the level of detachment required of an independent medical expert witness. This is evident too from the expert witness code of conduct in Queensland for civil Court claims. They may give only factual evidence. Rule 424(1)(c)(i) – (iv) of the Uniform Civil Procedure Rules 1999 (Qld) lists what a treating doctor can give evidence to a Court about, and the matters are restricted to the following facts about the treatment provided:
- the results of any examination made;
- a description of the treatment or advice;
- the reason the treatment or advice was, or is being, given;
- the results of giving the treatment or advice.
Practical Application
This means that a treating doctor can report a diagnosis because they may comment on the reason treatment or advice was given. They would generally not comment on the cause for the diagnosis in the sense of stating whether it was caused by a particular accident or not but they could state the date on which the diagnosis arose if that date is a reason for the timing of the treatment that was provided. A treating medical witness can still be a very useful witness. For example, they could comment on whether and what advice they gave a plaintiff regarding medically recommended time of work, light duties, graduated return to work or even permanent work restrictions and the medical conditions for which that advice was given and when they arose. All of those matters are factual, and may assist a plaintiff in proving their conduct has been reasonable, in light of their duty to mitigate their loss. They can also assist independent medical experts in forming opinions.
Understanding the rules for expert medical evidence is important, because the parties to a Court case should obtain relevant evidence that can assist the Court.