[Drafting expert opinion reports in medical liability processes]

Abstract

In a medical liability process a medical expert takes on an outstanding position. He is the one process participant who preprograms the decision of the judge. However, he does not as such have an independent investigative competence and must understand his role as being an accessory to the judge. In view of this key role, the necessary expert competence and a basic legal knowledge, adequate preparation for the assignment and a meticulous study of the case file are indispensible. According to § 839 paragraph 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) an expert witness nominated by a court of law is liable to compensate damages if he writes an incorrect expert opinion either deliberately or due to gross negligence. The expert witness must also be objective and unprejudiced towards the parties involved or the accused/defendant. Civil processes and criminal proceedings both have legal peculiarities which the expert witness must bear in mind. The foundation of the function as an expert witness in a civil process is the order of the court to take evidence which the expert must adhere to. In this case the parties must be considered as being equal before the law. In contrast the procedure in criminal processes follows the principle of official investigation and the absolute principle of in dubio pro reo. From this it follows that the evidence of causality must be proven with a probability close to certainty. Advice for the construction of expert opinion statements can be found in this article.