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 may not be the ideal medical expert to give opinion evidence. The doctor patient relationship in some cases may be argued not to be consistent with the level of detachment required of an independent medical expert witness.
Practical Application
This means that a treating doctor can report a diagnosis and the reason treatment or advice was given and the timing for those matters. An independent non-treating medical expert may in some cases be the better option though as the plaintiff could avoid dealing with the argument that their evidence should be given less weight due to the doctor-patietn relationship. 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.