Abstract
The Parliament makes the law, the court interprets the law and the judge or jury make the decisions. The adversarial system in Australia is a battle between two advocates who elicit information which is consistent with the version of facts being advanced in his/her case and likely to persuade the court (judge or jury). Deciding on fault is the courts decision. In criminal cases the standard of proof is “beyond reasonable doubt” in civil cases the standard is “on the balance of probabilities”
You may be called to court to present the details regarding your patient or as an expert witness. The court needs you because the two parties have failed to agree regarding any of the following; the presence of a clinical problem, the probable cause of the alleged injury, the degree of pain, suffering, loss of performance and expected permanent impairment.
The surgeons dilemma is that the patients details are confidential but the discussions in court can become public knowledge.
A medical expert is recognized to possess knowledge or experience which is beyond that of the ordinary members of the lay community (or jury). Your evidence is therefore related to a matter that is not ‘common knowledge’.
The lawyers are in their comfort zone, you are a fish out of water. The court is their theatre yours is in the hospital. The court needs your evidence.
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Don’t try to help to see that justice is done. Use simple and concise language, stick to the facts and your field of knowledge (what you know, heard or saw).
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Don’t do the advocates job nor try to help or take sides.
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Don’t be intimidated to answer yes or no when you know that neither is correct.
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Don’t embellish, dramatize, show off, guess, be evasive, use complicated medical terminology or volunteer opinions.
If you believe that the proceedings are ‘way off the mark’ you can appeal to the judge to allow you to make a statement to clarify an issue.
The abstracts were prepared by David AF Morgan. Correspondence should be addressed to him at davidafmorgan@aoa.org.au
