Writing an expert witness medico-legal report

• Familiarise yourself with the relevant Expert Witness Code of Conduct for your jurisdiction.
• Ensure you have access to the person's medical records and other relevant material as required and wait until you have reviewed them before providing a statement or report.
• Support your opinions with detailed reasoning about how you have reached them.

A medico-legal report is a medical report prepared for legal purposes, such as for a coronial inquest, disciplinary complaint, civil/common law claim for damages, third-party motor vehicle accident case, workers' compensation matter or for determining testamentary capacity.

You may be asked to prepare a medico-legal report as the “treating doctor” or to give your opinion as an independent medical expert. You need to be clear in which capacity you are being asked to complete the report.

For a medico-legal report as a treating medical practitioner refer to our factsheet on that topic: Writing a treating practitioner medico-legal report

You may be asked by a solicitor, insurance company or other organisation to examine a person and provide an independent medical assessment.

As an independent medical expert, you should not have been involved in treating the person as your patient. Your role is to provide an independent, expert opinion on the circumstances of the case.  

This may include: 

• Considering the evidence and providing an opinion on whether a practitioner practised in accordance with the expected standard of care and/or an opinion on the cause of a person’s injuries.
• Examining a person and reporting on their current condition and prognosis (an independent medical assessment).
• Both of the above.

Remember that if you provide a report as an independent expert, you may be called upon to give evidence in court.

Ideally, an independent expert will be able to communicate complex issues to a lay audience. Judges or members of the jury are very unlikely to be clinicians and their capacity to understand technical evidence will vary. They will have difficulty accepting something if they cannot understand it.

In the adversarial context of the courtroom, you will need to be able to support your expert opinion in challenging circumstances, including giving evidence together with other experts in the case.

Are you an expert?

Court rules define an “expert” as a person who has specialised knowledge based on training, study or experience, or is qualified to give evidence as an expert.

As an expert witness, your duty is to impartially assist the court on matters relevant to your area of expertise. It is also imperative you remain within the scope of your competence.

To be accepted by a court, expert evidence must satisfy two criteria: 

• the expert witness must have “specialised knowledge based on the person’s training, study or experience” 
• the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”. 

Before agreeing to provide an independent expert opinion you should therefore be satisfied that you have: 

• relevant academic and professional qualifications 
• relevant clinical experience in the area of interest at the time the medical issue in dispute arose 
• specialised knowledge of the medical issue in dispute 
• an active practice in the relevant area of expertise. 

Retired practitioners

If you are a retired practitioner, or no longer practise in the area of expertise addressed in the expert report, you should make this clear to the party who has requested the report from you. You may still be able to be used as an expert but you should only give opinions about your own speciality area, based on your own knowledge and experience when you were in practice. Consider whether you can give an opinion about the expected standard of care at the time the events took place. It may be difficult to do this if you retired before the events took place.

If you are not currently registered with the Medical Board or hold non-practising registration, then you should not provide a report.

Time commitment

Preparing expert reports can be time-consuming. Always consider whether you can make the necessary time commitment required before agreeing to provide a report.

Although most cases do not end up in court, you need to be prepared to commit time to:

• reviewing the documents and writing a report, including additional documents and preparing supplementary reports if necessary
• attending meetings with barristers and solicitors
• attending meetings of experts (an experts’ “conclave”) where experts confer to produce a joint report outlining points of agreement and disagreement
• attending court to give evidence. See our factsheet Giving evidence in court. 

It is a requirement of many Expert Witness Codes of Conduct that experts agree to comply with court directions, including the date for completion of expert reports. Sometimes this will be managed by the firm or party who engaged you, but if you are providing a report for a judicial officer, for example, a coroner, the court may make orders that are directly relevant to how you manage your time and must be complied with.

The Expert Witness Code of Conduct is a court document that guides you on your role in giving an expert opinion. You should obtain a copy of the code before writing the report. The code of conduct varies between states and territories but usually contains the following elements:

• The expert has a duty to the court to be impartial and not advocate for one party or another.
• The expert must indicate if the report is incomplete or requires qualification by an additional expert in the field.
• Where the expert subsequently changes their opinion, they must supply a supplementary statement to the engaging party.
• An expert may be required to confer with another expert witness and must exercise their independent professional judgement.

If you are asked to examine a person and provide an independent medical assessment, you should have processes in place to ensure the person you are assessing knows what to expect. This will also help to reduce the likelihood of a complaint being made about the assessment, or if a complaint is made, to improve the likelihood of a good result.

Consider developing an information sheet or handout that clarifies the following:

• This is an independent assessment for a legal case, therefore you will not be providing them with any medical advice or treatment. However, you may include recommendations on treatment in the report if relevant to the issues to be addressed.
• The assessment will address specific issues, which you have been asked to assess.
• By participating in the assessment, the person acknowledges and accepts that any information they provide to you is not confidential and can be included in the report.
• The assessment may require a physical examination, and in some cases, this may require them to disrobe. If they are concerned about this, you can arrange for an appropriate person to be present for that part of the assessment, such as a chaperone or observer. Outline your policy on having a support person present during the assessment (many independent assessors and medicolegal report entities do not allow this). 
• Confirm that your report will be provided to the party requesting it and if they have any questions about the report or would like access to it, they should approach the requesting party.
• Outline how long the assessment is likely to take and whether ancillary investigations such as blood tests, radiology and drug screens are likely to be required.
• Emphasise the importance of co-operation from the person, particularly with giving a full and honest history so you can provide the most informed and accurate assessment
• Outline in what circumstances you may need to terminate the assessment. This might include excessive lateness of arrival, abuse or unacceptable behaviour, failure to respond to questions, etc.
• Mention that if a person is uncomfortable about any aspect of an assessment this should be raised politely and respectfully at the earliest opportunity so the concern should be addressed.
• Highlight the consequences of either not attending the assessment or not complying with the requirements for an assessment, such as payment of a cancellation or non-attendance fee, and note that your inability to complete the assessment will delay the legal process or outcomes from the legal process.

Provide this information sheet or handout to the person before the assessment, either through the requesting party or directly to the person, if possible.

At the beginning of the assessment, ask the person to confirm that they have read and understood the information sheet and have them sign a copy to acknowledge this.

At the end of the assessment, provide the person with a brief form that asks them to indicate:

• if the assessment was conducted in accordance with the pre-assessment information provided
• if they have any concerns about the assessment or how it was conducted
• any other feedback which may help to facilitate the best possible assessments in the future.

The Expert Witness Code of Conduct outlines what to include in the report but there is no set format. 

The report should be written on your letterhead and contain:

• your qualifications and experience (short CV)
• acknowledgement of the Expert Witness Code of Conduct and that you have read it
• what documents you referred to, including the solicitor’s briefing letter
• facts and assumptions on which you based your opinion
• examinations, tests or any other investigations
• your opinion and, most importantly, the detailed reasoning behind each of your opinions
• any issues that fall outside your area of expertise, and recommendations for other expert opinions that may be warranted
• literature such as journal articles that you relied upon when forming your opinion
• an executive summary of your opinion at the start of the document if the report is lengthy.

If you are considering using AI to assist in generating your report, make sure you understand the court’s expectations.

Courts may not accept AI-generated reports as evidence in court proceedings, or if they are permitted, the court may require a statement in the report that AI has been used to prepare the report.  Ask the solicitors who briefed you to provide you with the relevant court’s rules.

Do not use general-purpose generative AI tools (such as Chat GPT) to draft or generate your report. There may also be privacy issues if you enter a patient’s identifiable health information into a third-party AI tool to generate the report. 

Reasonable care

When giving an expert opinion, you may be asked to comment on whether the care given during the events in question was ‘reasonable’. This can be difficult to identify for several reasons. 

A natural instinct is to push towards perfection, or even what you may have done in the same situation, rather than to say if the care given was ‘reasonable’ given what was known at the time.

The legal test in many jurisdictions is whether the standard of care was in accordance with widely accepted competent professional practice at the time the service was provided. The practice does not have to be universally accepted to be widely accepted.

When evaluating this, consider the advantage you have with knowing the outcome from the decisions made at the time, and the range of acceptable practices at the time. Hindsight bias can make this a challenge, but it is important to consider the decisions only on the information known at the time. 

In practice, decisions need to be made under less-than-ideal circumstances, and often quickly. It is far easier to make decisions when you know all the facts and have plenty of time to consider your options. Consider these issues when reviewing the facts of the case and forming an opinion about what would constitute reasonable care. 

What not to include

It is not your role as an expert to give an opinion on whether or how the claim or litigation should be resolved.

If you are examining the person bringing the claim, do not comment on the conduct of the litigation, the likelihood of settlement or the amount of damages they are likely to recover as a consequence of their injuries or illness. You are not in a position to know all the considerations, legal and otherwise, that will impact the resolution of a claim. This is a matter for the courts and the lawyers representing the parties. 

Your medical opinion should be based solely upon your independent assessment of the person’s injuries, or your review of documents provided to you.

You should also be careful not to make derogatory remarks about patients, parties to litigation or your colleagues, either verbally when examining the person, or in written reports. Confine yourself to medical facts and your professional opinion. 

Setting and collecting fees

A fee for a medico-legal report is usually a matter of negotiation between you and the party requesting the report. As far as possible, the fee for a report should reflect the effort, skills and resources you put into providing that report. Consider the following factors in determining the appropriate fee:

• In preparing the report, what amount of your income is foregone? 
• Are other employees involved in the preparation and at what cost are their services to be provided? 
• Are there other costs directly associated with the service such as travel or dictation costs? 

The organisation requesting the report from you may have guidelines or fee schedules that indicate how much they are happy to pay. This is an issue that should be clarified before you accept the request.

Video - Writing a medico-legal report

Factsheet - Giving evidence in court

Factsheet - How to write a coronial statement

Factsheet - Writing a treating practitioner medico-legal report

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