Critères de qualité pour une expertise civile réussie : le point de vue de l'expert médecin

In July 2009, the French Republic ombudsman proposed a reform of court-ordered forensic appraisal, with several directions of improvement, which concern the expert witness. A physician should serve as expert witness only in areas in which he is certified and he or she has sufficient experience. He or she should decline to provide expert witness evidence when being aware of elements that are detrimental to his or her independence and impartiality. In 2007, the French Supreme Court recommended that in all appraisals, expert witnesses should state their conflicts of interest. The expert witness should decline to intervene in legal proceedings for the same reasons than the judges. When he or she wishes to decline, the expert witness should get in touch with the judge. The forensic examination should be thoroughly prepared, with a rigorous review of the medical facts and standards of practice or literature regarding the case. All along the forensic appraisal, the expert should be watchful regarding the respect for the principle of “contradiction”, which, in French civil law, means (1) that the credentials should be communicated to all counsels and (2) that comments from all sides should be taken in consideration. The “contradictory” debate should not be limited to answers to attorneys following the mail of the preliminary report: it should be oral, during the forensic examination, and should concern the whole assignment. The forensic survey report should avoid legal language (i.e. hazard, fault), thoroughly analyse the causal link (especially between medical malpractice and damage) and preclude inappropriate use of the concept of loss of chance (of survival or cure). Beyond its scientific quality, a successful court-ordered medical appraisal is an equitable and transparent one, when all concerned parties or persons had access to all documents and had the opportunity to vindicate one's comments.