[Expert evidence. General prerequisites and procedural characteristics for expert opinions]

Abstract

In view of the boom in medical liability suits, which centre around medical malpractice, the decision of the medical expert is the pivot in the conflict between doctor and patient. Therefore, from a legal point of view it is extremely important that the expert is well prepared for a courtroom appearance. Beginning from a systematic and logical structure of the expert opinion, the most important demands on quality are dealt with: professional competence, objectivity and impartiality, intellectual integrity and intelligibility of speech, duty to give a strictly personal delivery of the opinion, limitation to the medical specialty, no legal comments, no insinuation and strict adherence to the theme. As an aid to the Judge, the expert must have a certain degree of background legal knowledge. This includes the peculiarities of civil and criminal procedures with respect to the burden of proof, the causality of medical or organisational errors in treatment leading to injury or even death of the patient, the significance of the term "a probability bordering on certainty", the meaning of "gross" errors in treatment, the guidelines and the medical standards. The obligation of the medical expert in questions of medical malpractice is not only an extremely responsible and difficult one, but also not without risk for the expert himself. Since August 2002 gross negligent errors by the expert are also liable for compensation in law under [section sign] 839a of the German Civil Code Book.