Peritos médicos are medical experts and have the function of providing information or opinions based on their experience and knowledge acquired over many years of study on medical issues in general and/or relating to a specific case.
They prepare expert reports at the request of their clients or the relevant authority in which they analyse the medical care received or the state of health of the claimant in order to assess possible damages (including those due to medical negligence). For this purpose, the experts investigate or analyse the facts previously investigated by others in order to establish the causal link between the event and the consequences from a medical perspective which will then assist lawyers to determine causation and assess the value of the claim.
The peritos médicos can act in any proceedings, including civil, administrative, criminal or labour, and they may be appointed by the parties (party experts) or by the court (judicial experts). All peritos must have a medical degree and the necessary experience, where appropriate, as medical specialists in any of the different branches of medicine. Likewise, court-appointed peritos must be registered on a special list and must not be disqualified or have any proceedings open against them. In the case of party peritos, they must demonstrate their speciality, knowledge and experience in order to guarantee a better defence of the case. For example, in cases involving neurological issues, the perito must hold a medical qualification and be also specialised in Neurology.
Although peritos médicos are not technically assistants to the judiciary, they have a duty to cooperate with the court and comply with the instructions provided by the court on each specific case. The perito’s impartiality and scientific neutrality will therefore be of the utmost importance. All peritos are required to take an oath or promise to act objectively and impartially.
Peritos médicos can be useful both in and out of court.
In addition to producing medico-legal opinions for judges or courts, peritos can also perform other functions, including:
– advising the client and/or his lawyer
– participating in arbitration or mediation in order to settle the case without the need to go to court;
– carrying out medical assessments and counter-assessments;
– analysing evidence and defending their expertise before the court or tribunal.
However, peritos do not have the duty to help a claimant to recover from his/her injuries.
The reports provided by peritos medicos must be subject to the principles of:
Impartiality: peritos must analyse the facts and arrive to their conclusions in an impartial manner. They should not act in favour of any of the parties by personal or economic reasons.
Honesty and Truthfulness: they must tell the truth and be objective. Their arguments must be based on valid methods, techniques and studies.
Confidentiality: peritos’ reports will remain confidential until the moment they have to be disclosed to the judge.
Peritos’ reports are non-binding reports. They are therefore considered as tools to assist the judge in the evaluation and resolution of the case.
Peritos’ reports should include the following elements in order to be admitted by the court:
– Personal details and qualifications of the reporting medical expert;
– The purpose of the report;
– The identity of the applicant (ID card number, address, date of birth, etc.);
– Description in chronological order of the facts provided and/or investigated;
– Sources used to produce the report (personal examination, other medical reports or tests carried out by the medical expert or by other experts);
– Patient’s pre-existing medical history (previous illnesses or health problems);
– Diagnosis, confirming the injuries sustained and their effects on the patient, indicating the severity and type of disability caused by the incident;
– Causal link, i.e. the relationship between the incident and the injuries, and between the injuries and their effects;
– Assessment of the damage;
– Conclusions of the report and recommended treatment;
– Signature of the expert;
– Date of the report.
In addition, peritos’ reports which are to be submitted to the court must also identify the name of the specific court and the corresponding proceedings.
The perito shall then issue a written report and submit it to the court within the stipulated time limits. The perito will prepare the report after examining the claimant or based on the facts provided by other means of evidence. In the event that the perito médico personally examines the claimant, he shall act as an expert witness by providing, on the one hand, testimony of what he perceives with his senses in the person examined and, on the other hand, his conclusions based on the application of his technical knowledge.
The perito’s report will then be distributed to the parties in order to give them the opportunity to decide whether or not they consider it necessary for the perito to attend a hearing. Likewise, the judge may decide whether or not the presence of the perito is required at a hearing.
The parties may rely on their own peritos’ reports or alternatively request that a perito be appointed by the court to provide a report in cases where technical, scientific or practical knowledge is necessary to assess facts or circumstances relevant to the matter.
The perito must state, under oath or promise, that he has acted as objectively as possible, taking into consideration both what may favour or prejudice either party, and that he is aware of the criminal penalties he may incur if he fails in his duty as an expert. In particular, a court-appointed peritos must submit a report that is objective, clear and precise so that everyone can understand it, and in an impersonal and forceful style with conclusions that are convincing to the judge.