Judge questions impartiality of medical experts

PUBLISHED : Friday, 21 March, 2008, 12:00am
UPDATED : Friday, 21 March, 2008, 12:00am

Fears of 'hired gun' doctors in court

A High Court judge has called for new arrangements to ensure doctors are not 'hired guns' and maintain their independence when giving medical opinions in court.

Mr Justice David Yam Yee-kwan said doctors should be jointly appointed by the plaintiff and defendant, and not told for which side they were giving evidence.

He made the suggestion in a judgment on a personal injury case in which a construction worker was awarded HK$1.9 million for arm and finger injuries suffered when he was hit by the opening cargo door of a truck in March 2003.

The judge said he made the comments concerning medical evidence in general after he had come across and handled a string of such cases.

'To my mind, doctors, like any other experts, should not be hired guns,' he said in his judgment.

'They are independent professionals and therefore should give a true medical opinion, no matter whether instructed by the plaintiff or the defendant.'

The judge also recalled being told by a lawyer about a doctor who had revised his opinion after he found he had been mistakenly told that the medical report was being prepared for the plaintiff, not the defence.

'This is an indication that sometimes doctors take sides. This I must say is the situation for some doctors; not all doctors behave like that. This is very unhelpful to the court in the assessment,' he said.

Medical Association chairman Choi Kin said doctors should be neutral, and base their expert opinions on objective medical observation and evidence. 'However, medical opinion cannot be absolute and there is flexibility in nature.'

Lawyer Thomas Tse said the judge's proposal would be difficult to implement. 'This is not a question of who pays the expert's fee. The difficulty is that how can two parties agree on the appointment of a doctor to give an opinion in court when there are always different opinions.

'As matters have developed through the years, it has become a phenomenon that there is already a group of doctors who are often appointed by insurance companies while there is another group who often assist workers,' he said.

Mr Tse said it was natural for doctors to give different medical opinions on the same incident and such divergence could not be resolved, hence it created difficulty in achieving consensus on the appointment of a doctor to testify as an expert witness. 'It is because each side prefers a doctor who gives more favourable opinion for the party.'

Another experienced lawyer, who declined to reveal her name, said the idea of the proposal was perfect, but the implementation was questionable. 'Who should decide which doctor should be appointed?'