Called to witness

DURING your undergraduate training you will have had some exposure to the legal aspects of medicine. Whilst complex ethical and medico-legal issues involving treatment of patients may have been examined and discussed, it is important that you are also equipped to deal with this aspect of medicine in practical terms. The purpose of this article is to illustrate how you may become involved in legal proceedings. Advice is provided on how to cope with the daunting prospect of appearing in court.

There are a number of situations which might involve you interacting with solicitors to give a statement and ultimately providing evidence in court. These include:

• speaking as a factual witness to the medical records of a patient who has been involved in a road traffic accident or assault
• speaking as a factual witness to the medical records of a patient who is making a civil claim against the hospital or you for negligent treatment
• providing evidence as a factual witness in a fatal accident inquiry (FAI) into the death of a patient following treatment
• offering testimony as a defendant or witness at the GMC as a result of a complaint in relation to the practice of either yourself or a colleague.

This is not an exhaustive list but provides examples of the more common situations in which you could find yourself before a court or tribunal. In the last issue of FYi, Dr Jim Rodger dealt with GMC issues and this article will, therefore, focus on the more common occurrence of being called to court as a witness to give evidence to ‘speak to your notes’.

Who will ask you?

You could be contacted initially by the solicitor acting for the pursuer (claimant) who is making the claim or by the defender’s solicitor who may be representing a health board or GP in a clinical negligence claim, or indeed an insurance company if the claim involved a road traffic accident. The first contact will usually be a request to meet with you to take a statement in relation to your notes.

It is important to know who is asking the questions because if it is a clinical negligence claim the solicitor should make a request through the NHS Central Legal Office (CLO), who manage claims on behalf of the health board, or through your solicitor if you are being indemnified by your medical defence organisation (MDO). Your solicitor should be present for your statement, so do not agree to this if you are approached directly.

If the case relates to a fatal accident inquiry (FAI) the procurator fiscal or a solicitor representing others at the inquiry, including the family, may contact you. Consider if you are likely to be criticised yourself during the inquiry and whether you should have a solicitor present. Take advice from your MDO or the CLO. If the case proceeds it’s possible you will receive a citation (court order) requesting your attendance at court, with which you must comply.

What will you be asked?

Medical notes require to be spoken to by their author before the court unless the records can be agreed as true and accurate in advance by the lawyers. Some medical notes, however, which are controversial or in dispute will not be agreed and you will be asked to speak to them. In the context of an FAI, medical notes are not regularly agreed in advance.

Your evidence will commence with your personal details and CV before consideration of the notes that have been made in the records, together with any investigations requested and results obtained. Evidence of your normal practice and your recollection of events in general may be asked. The history that you take when clerking in a patient can be particularly informative to solicitors as it may contradict previous statements given.

Where and when?

Civil cases are heard in the Sheriff Court or in the Court of Session, Scotland’s Supreme Civil Court based in Edinburgh. Fatal accident inquiries are held in the Sheriff Court closest to the place of death.

Very often a civil case is heard many years after the incident. This is because a pursuer has three years from the date of the incident to raise an action. Due to court procedure and waiting time it could be a further 3 years before the case is allocated a court date. Don’t be surprised if you are approached many years after the incident – another reason to make sure you have good, clear notes.

Often cases settle on the morning that the case is due to start. If a case runs or if it is a criminal case or an FAI you may spend time waiting to give evidence because it is very hard to timetable witnesses. You may have to come back to court on a number of occasions.

A fatal accident inquiry is generally heard within 18 months to 2 years following the death but again due to pressure on court time it can be delayed beyond that.

Checklist for giving evidence

Here are some practical points to keep in mind.

• Always keep legible, clear and full notes and sign them.

• If you are involved in the death of a patient you may be asked to produce a statement by the hospital management. If you are not, make sure you keep a note for your own purposes in case you are asked to give evidence at a later date.

• If you are contacted by a solicitor to give a statement, particularly if it involves a fatal accident inquiry or medical negligence claim, you should contact your medical defence organisation. The CLO will also want to be informed. If you are unsure how to contact them, consult the claims manager at the hospital.

• When giving a statement be clear about what you can actually recall and what is your normal practice.

• Be clear who is asking you to give a statement – ask for their business card.

• Always ask for a copy of the statement to be sent to you by the solicitor who has taken it.

• If you receive a citation to appear in Court, do not delay in contacting the MDDUS or Central Legal Office.

• When appearing in Court always look smart, speak clearly and slowly. Make sure you are familiar with the records that you are speaking to. Be prepared.

• Address the Sheriff or Judge as My Lord or My Lady.

Being involved in the legal process can be intimidating and daunting. However, you will be greatly assisted if your notes are of a high standard and you are well prepared. In addition, support and advice are always available from the extremely experienced medical advisers and in-house lawyers at the MDDUS and the solicitors that are instructed by them.

Lindsey McGregor is an associate solicitor and medico-legal expert at the law firm of Simpson & Marwick

Jargon buster

Some helpful legal terms explained:

FAI - The equivalent to a coroner’s inquiry in England (but with a wider remit)

Initial writ - Served on the defender to initiate a civil claim in the Sheriff Court, setting out the pursuer’s written pleadings

Pursuer - The equivalent of the English plaintiff

Precognition - A preliminary statement by a witness giving an indication of what he/she will say in evidence; this is not signed and is usually inadmissible

Procurator fiscal - The public prosecutor in Scotland

Proof - The hearing of evidence on the facts of a case

Sist - Equivalent to English ‘stay of proceedings’ – an action is put on hold

Summons - Served on the defender to initiate a civil claim in the Court of Session, setting out the pursuer’s written pleadings

Witness citation - Equivalent to the English subpoena, court order summoning an individual to court.