The role of medical witnesses

Iacobucci and Hamilton’s article 1, which should be studied by every actual and potential medical witness, does much to encapsulate the situation in which doctors in court find themselves, but sadly does little to solve their dilemma. It correctly stresses the dedication of the law to the adversarial process and recognizes that the adversarial process is by and large inappropriate for the expert witness. Our role, they say, is “to assist the court by providing impartial testimony” — which will come as a surprise to many doctors and apparently to most lawyers practising as counsel. The subpoena that brings a doctor to court states explicitly that it is issued because the physician is expected to provide evidence for one side of the case or the other; it says nothing about being an impartial objective witness for the court. To demand, on the one hand, impartial objectivity and, on the other, submission to the adversarial process is conscription into the 100-yard dash wearing sea boots.

When everyone else in the court save the expert witness, and presumably the judge and jury, is by definition on one side or the other, it is asking a lot of the doctor/witness to be impartial and objective, a great rock above and apart from the turbulent torrents of adversariality. If the doctor is a witness for the court, then the doctor should be summoned by and for the court, not by one of the contending parties.