The rates would have to rise very significantly to make them attractive to medical professionals. It must be remembered that in some areas there is a drastic lack of experts. This applies, among others, to psychiatry or psychology – says prof. Zajdel-Pełska – a lawyer specializing in aspects related to telemedicine, artificial intelligence in health care, protection of the rights of medical professionals.
- What happens when two experts give opposite opinions? – In such cases, the court should appoint the so-called a super expert who will decide the case – explains prof. Justyna Zajdel-Pełska
- Why is it taking so long for their release? Expert: there are few experts and there are many cases. Creating a short opinion requires the analysis of many volumes of files
- Prof. Zajdel-Pełska also talks about the law on experts that is being prepared. Will they become subject to disciplinary liability?
- The number of lawsuits brought against doctors is increasing. What is the role of a court expert in them? Read the first part of the conversation
- You can find more such stories on the TvoiLokony home page
What happens in the case of two opposite opinions of experts, after all, as you said, the court does not have medical knowledge?
In such cases, the court should appoint the so-called a super expert who will decide the case. If his opinion confirms one of the opinions issued earlier, the court shall uphold the position of a super expert. In a situation where the last of the appointed experts gives an ambiguous opinion – i.e. indicates that something could have gone in a given way, but an alternative scenario cannot be unequivocally ruled out, then Art. 5 §2 of the Code of Criminal Procedure, according to which “irremovable doubts are resolved in favor of the accused”. If there are several contradicting, contradictory opinions, the chance of resolving the proceedings in favor of the accused or the defendant increases.
Why is the waiting time for an expert opinion infinitely long?
Because there are few experts and there are many things to do. In addition, it is good to read a coherent, sometimes brief opinion, which is based on the analysis of many volumes of files. And for that it takes time….
We come to the heart of the problem, i.e. unprofitable fees for serving as an expert witness. Will raising them attract doctors and improve the work of courts, or will it attract incompetent people?
The rates would have to rise very significantly to make them attractive to medical professionals. It must be remembered that in some areas there is a drastic lack of experts. This applies, among others, to psychiatry or psychology, which have been developing very dynamically recently, and people are changing their approach to this type of service. In other words, the specialists I have mentioned have their hands full and they are rather reluctant to act as an expert.
Work is underway on the draft law on experts, some experts argue that they should be subject to the mechanism of disciplinary liability, what do you think about this?
In fact, experts are subject to some kind of disciplinary responsibility right now. It applies only to permanent court experts entered on the list of court experts. However, this is not a classic disciplinary liability – the misconduct of an expert is not decided by the disciplinary commission, but by the president of the regional court. The president may dismiss an expert from his function for important reasons, including if he / she performs his / her duties improperly. The phrase “improperly” should be identified in violation of the principles of professional ethics and deontology, including actions consisting in dishonesty, lack of objectivity and bias. However, the “disciplinary penalty” in the form of removal from the list of experts is not particularly severe. Untrustworthy experts are subject to criminal liability.
The Criminal Code Act provides for the liability of an expert for submitting a false opinion. Pursuant to Art. 233 §4 “who, as an expert (…) presents a false opinion, expert opinion (…) intended to serve as evidence in court proceedings or other proceedings conducted pursuant to the Act, shall be liable to imprisonment from one year to 10 years”. Moreover, pursuant to Art. 271 of the Penal Code, “A public official or another person authorized to issue a document who certifies an untruth in it as to the circumstances of legal significance, shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years”. If the perpetrator acts in order to gain financial or personal gain, he or she is subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years. So, with the potential criminal liability that may be incurred by experts outlined above, disciplinary liability is similar to giving a very naughty child a rod against Santa.
Another thing that is talked about is the need to introduce a system for verifying the knowledge and experience of experts – even by introducing certificates, is it a good idea?
It does not seem to me to lead to an objective assessment of the experts’ skills. Paper is patient and will accept anything. It’s a bit like educational points in medicine. It is true that doctors collect them, but ultimately they do not prove whether someone is a good doctor. It is skills, a desire for constant development and continuous self-education that are important.
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So what changes still need to be made?
I do not have ready-made prescriptions for what should be modified. Practice is the best way to verify all ideas. Perhaps a good solution would be to introduce algorithms related to the rules of opinion-making. It is true that each case is different, but the use of standardized procedures could minimize unlimited autonomy in giving opinions and structure the entire process. It’s a bit like aviation, where every flight is different, if only because of the weather conditions, but the flight procedures are rigid and inviolable. It is the procedures that increase the level of security and make it impossible to make any decisions. Moreover, it should be emphasized that the discrepancies that appear in the opinions of experts are dictated by a small number of standards of conduct in individual fields of medicine.
Although the Act on Medical Activity gives the Minister of Health the power to issue standards by way of ordinance, there are relatively few acts of this type. An example of applicable standards is the ordinance on the organizational standard of teleportation in POZ. The regulation specifies, among other things, how many times a doctor should call a patient who is not answering the phone in order to cancel an appointment. If there were no standards in this respect, an expert would have to be appointed to assess the situation, and this is difficult, because there are no uniform criteria that could be referred to. Of course, not everything can be standardized given that medicine and technology are constantly evolving, but it is possible to create a framework that provides a benchmark for evaluation.
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