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Tuesday, January 3, 2012

U.K. shows way forward on expert accountability

From the LawTimesNews: "... According to a recent Law Times story, Canadian lawyers are split over a British ruling that abolished the rule granting expert witnesses immunity from lawsuits (see “U.K. ruling spurs debate on expert immunity,” April 18).

But on which side of the debate do the experts fall in the ensuing discussion over Jones v. Kaney? As an orthopedic spine and trauma surgeon who has been an expert medical witness for both plaintiffs and defendants, I say bring it on.

I agree with Victoria lawyer Erik Magraken, who told Law Times the decision “is a welcome development from the perspective of accountability. . . . Being an independent expert can be lucrative and plays an important role in our system.”

In short, Britain has lifted the 400-year-old old rule decreeing that expert witnesses were free from the threat of liability if they made a mistake in their testimony. Now they can be liable. I like Britain’s approach because everyone, including expert witnesses, should be responsible for their actions.

That may seem simplistic, but if Canada adopted this approach, I would have no problem. It’s only fair. For example, if I assault someone on the street, I should pay the price.

By the same token, if I make an error or I provide care that’s below standard, I should be held responsible and I am. I don’t see why that responsibility should disappear because I’m now acting as an expert on the witness stand in court.

Having said that, there has been a development within this area as part of the revised Rules of Civil Procedure enacted Jan. 1, 2010, related to advocacy and bias. The changes deal with Form 53, something every medical expert witness has to sign before proceeding ..."

Click here to read the rest of the story.


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