Writing a medico-legal report – important considerations

During your career as a clinician, you may be asked to write an independent medico-legal report as an expert witness to give your opinion on a person’s treatment and/or condition. When compiling this type of report, you must be aware of your obligations as an expert.

Understand the role of a medical expert 

Before agreeing to provide an expert opinion, ensure that you have not treated the person and that you have the necessary qualifications and expertise to provide an opinion on the matter.  If you don’t have appropriate qualifications or expertise you should decline.

The role of the medical expert witness is to form an opinion based on those facts provided in the briefing letter and material. If it is an independent examination, this would also include the history provided to you by the person being examined and your examination findings.

Your role as a medical expert is to assist the decision maker to determine the issues in the case. 

Remain within the scope of what you have been asked to consider 

Read the briefing letter thoroughly to ensure you are clear about what it is asking you to do.  The briefing material must form the basis of your opinion, and includes the claim/court documents, patient’s details and other information, such as medical records and employment records (if relevant). 

Do not go outside the briefing material, and do not access records outside of the material you have been given. If you think a crucial document is missing, you should contact the person who has asked you for the report and request this. Otherwise, you can suggest in your report that further documents be obtained. You can assume certain facts, however your assumptions should be clearly identified in your report and a basis provided for your assumptions. 

Important considerations

The report doesn’t have to be lengthy – it can be short and precise, as long as it covers the issues you have been asked to address. 

It's also very important that you don’t include any legal opinions in the report. For example, medical experts may want to comment on the credibility of the claimant, but that's for the court to determine.  You can point to any inconsistencies in the versions of events and medical records.  This is helpful to the court in determining issues of credibility.

Along with the briefing letter, the person instructing you will provide you with the Expert Witness Code of Conduct relevant to the jurisdiction.  These can be different across jurisdictions, and you should familiarise yourself with the relevant Expert Witness Code of Conduct before you write your report.  It is important that you acknowledge the Expert Witness Code of Conduct in your report. Also, list the information you have received and state that you haven’t used artificial intelligence (AI) to write your report. 

Your report should answer the questions asked of you and provide the reasons for your opinion. Always write the report with the assumption that you could be cross-examined on it, so make sure it is backed up by the facts you have ascertained from the brief, any history provided to you, your examination of the person and any assumptions you’ve made from the briefing material.

 Where there is literature supporting your opinion, refer to and reference it in your report, attaching a copy attached to the report.  You should also ensure you read the referenced articles carefully and in full, as this is another area you can be cross examined on.

In writing your report avoid commenting on areas outside your expertise. 

Remain independent and avoid hindsight bias 

When writing an expert report, it is important to remain independent and objective.  Advocacy for either side means your opinion is not independent and this is a basis for the court to reject your evidence.  

It's also crucial to avoid hindsight bias. You need to judge the actions of the medical practitioner based on the information, guidelines, and evidence they had at the time of the treatment, which can be many years before the report is written.  Also be mindful of the setting in which the events occurred i.e a rural or tertiary setting and the availability of testing, imaging and specialists in that area.

Potential for disclosure of your communications

Court rules about what information needs to be disclosed in the court differ across Australian jurisdictions. Some jurisdictions have strict disclosure rules and a party to proceedings may be required to disclose emails, texts and draft reports of an expert.  Therefore, it is important that you check the requirements of the jurisdiction before emailing, texting and sending a draft or final report.  The instructions from the person asking for your opinion generally provide some guidance on this issue.

A treating practitioner report is different to an expert report as it is not considered ‘independent’. It asks you for the facts about your involvement in the care of a patient.   

There are many instances where treating practitioners are asked to give this kind of report, for example in criminal matters, a superannuation claim, Worker’s Compensation claims or coronial matters. 

Before providing any information, ensure you have an appropriate authority to allow you to provide your patient’s information to a third party. If not, you should seek the patient’s consent before commencing the report.   

Your report should be based on the history provided by the patient, your observations, your findings on examination and any reported results.  

In Worker’s Compensation claims you may be asked for your opinion on whether the patient can return to work or what further treatment the patient may require. If you are not the appropriate specialist to comment, do not provide the opinion and recommend the instructor obtain a report from the appropriate specialist.

When writing a treating practitioner report, ensure your report can be supported and backed up by your independent recollection, your usual practice or your medical notes.  

If you need further information, you can bring the patient back in for another appointment.

For example, if the report is for an insurance company about fitness to work and you haven’t seen the patient for six months, it may be a good idea to bring them back in to do an examination, and then write the report based on your findings at that examination rather than from six-month-old evidence, which may no longer be correct. 

• ensure you can support your opinions
• if providing a treating report let the patient know you are writing the report and get consent (if an authority is not provided)
• stay within your areas of expertise (eg. don’t comment on psychiatric matters if you are a neurosurgeon)
• stay within the scope of the request (answer what you have been asked to answer)
• don’t make disparaging comments about patients or other parties.  Assume they and the decision-maker will read them! 

Avant factsheet: Writing an expert witness report 

Avant factsheet: Writing a treating practitioner report 

For medico-legal advice, please contact us here, or call 1800 128 268, 24/7 in emergencies.