In the course of clinical practice a physiotherapist might be required to attend before a Court or an administrative body in order to provide evidence under oath. The evidence will likely either relate to the clinical treatment of a client; an expert opinion on the causal underpinnings of an injury; or an expert opinion on whether treatment received by an individual met the requisite standard of physiotherapy care. Being a witness in a legal proceeding can sometimes be a stressful and confusing experience. As such it is important to understand some basics about being a witness.
The nature of the evidence
In a general sense, a physiotherapist can either provide evidence as a ‘lay witness’ or an ‘expert witness.’ The distinction between these two roles is particularly important in the context of civil litigation and is often the subject of legal debate. The following is a basic guideline to assist physiotherapists in making a distinction between the two separate roles.
A lay witness generally testifies about an event or observations that they experienced first-hand. For instance, a physiotherapist that is subpoenaed to testify about providing clinical treatment to a client is, generally speaking, testifying as a lay witness (despite having obvious clinical expertise). The physiotherapist is providing factual evidence about his or her role in treating the client, which might include: the reported clinical history, the nature and purpose of the treatment provided, and the response to treatment.
Lay witness evidence is strictly factual evidence about the assessment, observations and diagnosis that occurred contemporaneous with the attendance on the client. Factual evidence generally excludes speculation, opinions based on hypothetical questions or requests for a physiotherapist to formulate opinions about treatment with the benefit of hindsight.
In short, if a physiotherapist has not been asked to author an expert report pursuant to Rules 5.34 or 5.44(3) of the Alberta Rules of Court it is probable that the physiotherapist is being called as a lay witness.
Lay witnesses are generally entitled to be paid a nominal amount of conduct money for their attendance in Court, including travel costs where applicable. The amount of conduct money is established by legislation and must be provided to the physiotherapist when the legal document is served.
Expert witnesses are retained to provide the court with expert opinion evidence that assists the ‘trier of fact’ (judge or jury) in drawing conclusions about issues at the trial that are beyond the scope of common knowledge. Expert witnesses are bound by their professional and ethical integrity and are not meant to be advocates for a party in the action.
Physiotherapists are never under a compulsion to act as an expert witness and are at liberty to decide whether they want to engage in this process. The paramount consideration is whether the physiotherapist has the confidence, requisite experience and expertise to provide the opinion evidence in a certain area.
Expert witnesses are generally retained by legal counsel and are asked to author an expert report pursuant to Rule 5.34 of the Alberta Rules of Court. Expert reports are disclosed to all parties in advance of trial in order to avoid surprises at trial and to encourage resolution of litigation.
An expert witness must possess sufficient experience, knowledge, and skill in order to provide expert opinion evidence. Generally, expert witnesses are asked to provide an opinion on whether another practitioner met the requisite standard of care (being mindful that the standard is ‘reasonableness’ not ‘perfection’); whether an injury is causally related to the treatment provided by another practitioner; or the future care needs of a Plaintiff and the associated costs.
There is an evidentiary process engaged in at trial in order to determine if a witness is “qualified” to provide expert evidence. This typically involves reviewing the curriculum vitae of the witness, a “voir dire” [trial within a trial] with questioning and argument about expertise, and a determination by the court as to whether it will accept the witness as an “expert” and any parameters on the scope of the expertise.
In some situations, a physiotherapist may be retained by one of the parties involved in litigation to provide a Rule 5.41(1) “medical examination”. In this situation, the physiotherapist conducts a clinical assessment [possibly in the presence of another appointed “expert”] and documents the factual findings, excluding opinions pertaining to issues in the litigation [these opinions generally become a component of a 5.34 Expert Report]. The factual findings are provided forthwith to opposing legal counsel. This process can be complicated and, if retained, physiotherapists should seek direction from the retaining legal counsel.
Physiotherapists that act as expert witnesses are entitled to charge a fee for the services that they provide. The fees charged should be reasonable, and should be agreed upon between the physiotherapist and the person retaining the expert services in advance of any services being provided. It is important to be mindful of the fact that should the matter proceed to trial, the time required to testify could have an impact on a clinical practice.