Tag: Jones v. Kaney

Negligent Medico-Legal Opinion? Dr. Ford Says Experts Should be Sued


Earlier this year I wrote about the UK Supreme Court decision stripping expert witnesses from immunity from lawsuits when they provide careless opinion evidence.
Some of my comments on this topic were picked up by the Law Times News where I exchanged my views that Canada should follow the UK’s example.  These views must have the medical community up in arms, right?  Surprisingly the answer appears to be no.
A follow up article published in the Law Times was recently brought to my attention where Dr. Michael Ford weighed in on the debate.  Interestingly he agreed that these lawsuits should be allowed arguing that they would bring an important element of accountability to the medico-legal process.  Specifically he stated as follows:
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.
You can click here to read Dr. Ford’s full article.  As always, I welcome comments from any other doctors and lawyers (or anyone interested in this topic).  Feel free to weigh in on the debate.

Expert Witnesses Stripped of Immunity From Negligence Suits in the UK

Significant reasons for judgement were recently released by the Supreme Court of the UK stripping expert witnesses of their immunity from lawsuits in negligence.  While this development is not binding in British Columbia it is noteworthy as the law in BC is often shaped or at least influenced by developments in other common law jurisdictions.
The issue of expert witness immunity is important as the outcome of a personal injury trial can largely turn on the testimony of various exeprt witnesses.  Often times there is disagreement about the extent of a Plaintiff’s injuries as between his/her treating physicians and ‘independent’ medical examiners hired by opposing parties.  If the opposing expert is negligent in providing their opinion BC Courts have held that they generally cannot be sued for any losses that follow.
The justification given for this immunity is that if experts could be sued “ there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.”
This same rationale gave expert witnesses in the UK immunity for over 400 years.  This immunity has now been overturned by the Supreme Court of the UK in the decision of Jones v. Kaney.  In Jones, the Plaintiff was injured in a motor vehicle collision.  In the course of the damages suit he was assessed by a psychologist.  After resolving his claim he sued the pscyhologist alleging she was negligent in providing her opinion.  The lawsuit was initially dismissed based on the long standing immunity enjoyed by expert witnesses.
In overturning this immunity the UK Supreme Court held that no justification had been shown for continuing  to hold expert witnesses immune from suit for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings
Given that BC’s expert witness immunity is grounded in the same logic as the UK’s was it will be interesting to see if our Courts are willing to re-visit this issue.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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