"This emphasis in support of the plaintiff's claim and the exclusion of contrary matters is advocacy.... I find that (he) is not a neutral and impartial expert providing assistance to the court, but rather an advocate on behalf of the plaintiff."
- B.C. Supreme Court 2011 (criticizing an expert's opinion)
Professionals, including university academics, engineers, physicians and others, are often sought as experts in legal cases.
What is an expert? How are they qualified? Who judges their expertise, and how often are they believed by judge or jury? In my experience, experts tend to advocate for the side that retains (and pays) them. It is understandable that one would select an expert with views sympathetic to one's side in an issue under dispute. Then the battle of experts begins: balancing expertise and credibility. When two experts disagree, the court may choose to believe one over the other, or may believe neither.
History tells us that experts are sometimes right, but often wrong. Decca records rejected the Beatles in 1962: "We don't like their sound, and guitar music is on the way out." In 1927, Warner Brothers' chief opined, "Who the hell wants to hear actors talk?" Margaret Thatcher in 1974 stated: "It will be years—not in my time—before a woman will become Prime Minister."
The problem with some experts is they equate and confuse their opinions and beliefs with facts. Many have become tarnished from over-immersion in their own, and similar-thinking colleagues', academic work. Their beliefs have become prejudices.
Ali Soufan, a former FBI agent involved in the hunt for Osama Bin Laden, in stating his frustration with couch experts said: "There is a difference between an expert behind the desk and being a field expert."
As we at the Cambie Surgery Centre in Vancouver approach our 2014 constitutional challenge (supported by the Canadian Constitution Foundation), we will face the introduction of so-called experts of all types. The B.C. government will hire a "who's who" of advocates for staying with a 1960s-era health scheme. We will ask that all Canadians be granted the same rights the Supreme Court of Canada gave to residents of Quebec in 2005 in the Chaoulli decision. We will argue against the medical enslavement of sick patients by governments. (This constitutional challenge was launched in 2009 against British Columbia provincial laws that limit an individual patient's right to fund, either personally or through private insurance, his or her health needs.)
At present, when access is limited, the patient is the one least able to alter their predicament. Our action includes five patient plaintiffs who have suffered significant harm while waiting for care. They obviously represent the tip of the iceberg. One active teenager, despite the best efforts of his mother, languished for 27 months on a wait list and is now paralyzed for life. The outcome he suffered would not occur in any other developed country on earth.
The government expert list will likely be dominated by many highly paid "behind the desk" experts, who proclaim to have more knowledge than exists, while telling us more than they know. They will include current and former health executives who have both benefitted from and contributed to the shortages in our healthcare system.
Taking on a government armed with unlimited financial resources (our tax dollars) in a court action is not easy. We are short on money, but are enriched with a powerful resource the government lacks—namely five patient plaintiffs who have suffered at the hands of the system. A sixth died of a brain tumour while awaiting trial. Government, its lawyers and its experts will face the reality that they are complicit in supporting the suffering of such patients.
We will also counter with some "behind the desk" experts of our own. They will be charged with delivering fact-based data to the court and will be supplemented by evidence from "field experts"—those who deal first-hand with patients.
I am looking forward to our day in court and to dissecting the "expert evidence" of those being paid to promote poor access for our patients. I want to hear them justify the fact that 26% of physician respondents (2007 Medical Post survey) have had a patient die on a wait list.
Dr. Brian Day is a Vancouver-based orthopedic surgeon who served as President of the Canadian Medical Association in 2007-08.
