Expert medical opinion occupies a position of unusual authority within the medicolegal architecture. Courts, regulators, and tribunals rely upon it to render intelligible the complexities of clinical judgement, translating decisions made under pressure into evidence capable of forensic appraisal. When such opinion is contemporaneous, measured, and anchored in lived clinical reality, it assists the court in determining whether the legal standard of care has been met. When it is not, it risks becoming an exercise in retrospective reconstruction, a narrative untethered from the conditions under which the duty was actually discharged. 

Obstetrics and gynaecology are particularly exposed to this tension. It is a specialty practised in conditions of urgency and uncertainty, frequently at unsociable hours, with incomplete information, competing risks, and finite resources. Decisions are made in real time, often with the labour ward phone ringing, theatre lists in flux, and junior staff requiring supervision. Clinical judgement in this setting is rarely binary and almost never pristine. Yet it is precisely here that expert witnesses are sometimes invited to express opinions with a confidence that would be incongruous on the labour ward itself, but which, once transposed into affidavit form, acquires an unwarranted air of determinacy. 

A persistent difficulty arises from expert witnesses who are largely, or even exclusively, engaged in plaintiff work and who are no longer immersed in contemporary clinical practice. Some have long since ceased active obstetric work. Others practise within such narrow confines that their familiarity with modern rostering pressures, institutional constraints, evolving models of care, and current professional standards is necessarily limited. Medicine is not static, and the content of reasonable care evolves with it. An expert who is not clinically current risks importing obsolete norms into a contemporary negligence analysis, thereby distorting the central inquiry into what a reasonable obstetrician would have done in the circumstances as they presented at the time. 

This problem is not merely theoretical. Obstetric practice today bears little resemblance to that of even a decade ago. Staffing models have shifted. Access to theatre is more contested. Private and public systems intersect in increasingly complex ways. Guidelines proliferate, but are often necessarily broad, leaving substantial scope for clinical discretion. To opine on reasonableness without intimate familiarity with these realities is to offer opinion in the abstract, divorced from the environment in which the impugned decisions were made. 

Equally disquieting is the increasing willingness of very junior specialists to offer critical opinion on the care provided by colleagues with vastly greater experience. Longevity alone does not confer correctness, and experience is not a substitute for evidence-based practice. Yet experience remains central to clinical judgement. It tempers reflexive risk aversion, sharpens proportionality, and inculcates an appreciation that many obstetric decisions fall within a broad penumbra of acceptable practice. A newly qualified consultant may possess immaculate command of guidelines and protocols but may lack the experiential ballast required to recognise that deviation from a guideline is not synonymous with negligence, particularly where such deviation is reasoned, defensible, and responsive to the clinical context. 

At the heart of many obstetric negligence claims lies a fundamental failure to acknowledge the breadth of reasonable care. Obstetrics is not governed by a singular correct pathway. More often, there exists a range of management options, each attended by distinct risks and benefits, any one of which may satisfy the legal standard when exercised with appropriate judgement. Retrospective critique has an unfortunate tendency to collapse this plurality into a single, idealised course, treating any departure from it as evidence of breach. This approach impermissibly conflates outcome with conduct, a logical error repeatedly cautioned against in appellate authority. 

What courts have criticised in obstetric expert evidence:

• Hindsight reasoning that treats adverse outcomes as proof of negligence. 

• Presenting preferred practice as mandatory when other reasonable options existed. 

• Lack of contemporaneous clinical experience. 

• Failure to engage with real clinical context and system constraints. 

• Opinions given outside the expert’s true field of expertise. 

• Argumentative or partisan tone inconsistent with an expert’s duty to the court. 

Courts have repeatedly emphasised that reasonable care does not require perfection, and that an adverse outcome alone does not establish negligence.^{1, 2} 

These criticisms reflect a deeper jurisprudential concern. Reasonable care does not require perfection, nor does it demand that clinicians eliminate all risk. Adverse outcomes occur even when care is exemplary. To reason backwards from harm to breach is to impose a standard of retrospective omniscience that the law itself expressly rejects. 

Hindsight exerts a powerful and often distorting influence. Expert witnesses benefit from knowing how the clinical narrative concludes. They know which complication emerged, which diagnosis ultimately declared itself, and which decision appears pivotal when viewed through the lens of outcome knowledge. The treating obstetrician possessed none of this information. They were operating prospectively, balancing probabilities rather than certainties. To judge their conduct as though they possessed the benefit of foresight is to substitute retrospective rationalisation for contemporaneous analysis. 

This distortion is compounded by the fact that expert witnesses were not present. They did not observe the patient, assess their demeanour, or engage in the nuanced communication that so often informs obstetric decision making. They did not negotiate the competing demands of a complex clinical environment. They may have little appreciation of whether senior assistance was immediately available, whether theatre access was constrained, or whether institutional pressures shaped what was realistically achievable. These contextual factors, often invisible in the documentary record, are nonetheless central to the proper assessment of reasonableness. 

There is also an irony that warrants acknowledgement. The clinicians best equipped to provide balanced, contemporary, and clinically literate expert opinion are often those least able to do so. They remain on the floor, carrying the labour ward phone, operating, supervising trainees, and managing risk in real time. For many, the prospect of being drawn into protracted adversarial proceedings, subjected to forensic cross examination, and asked to justify every line of a report years after the event is incompatible with the demands of modern practice. The emotional and reputational toll is not trivial. The opportunity cost is substantial. The resulting vacuum is predictable. Medicolegal work gravitates towards those with the time and inclination to undertake it, selecting for availability rather than clinical currency. 

There is also a structural asymmetry that rarely attracts scrutiny. Experts who provide intemperate, outcome-driven, or overtly critical opinions face remarkably little accountability when those opinions are later rejected, qualified, or criticised by the court. There is no meaningful feedback loop, no professional consequence, and no requirement to reckon publicly with error. By contrast, balanced expert opinion that acknowledges uncertainty, accepts a range of reasonable care, and resists the seduction of hindsight is often less useful to an adversarial brief. It is quieter, less absolute, and therefore less commercially attractive. Over time, these dynamic risks selecting experts whose certainty outpaces their nuance, and whose willingness to assign blame exceeds their fidelity to clinical reality. 

RANZCOG’s decision to abandon its expert witness register reflects, in part, these structural realities. Registers may offer reassurance to courts and litigants, but they cannot guarantee contemporaneity, balance, or independence. Nor can they prevent the gradual reorientation of professional identity that can occur when expert work supplants clinical practice. Over time, the gravitational pull of medicolegal work risks shifting an expert’s frame of reference away from the uncertainty and compromise of the labour ward towards the artificial clarity of the written brief. 

None of this is to suggest bad faith. Most expert witnesses act conscientiously and with sincere conviction. The difficulty is systemic rather than individual. The law seeks certainty and finality. Medicine is practised in probability, judgement, and trade-offs. Reconciling these domains requires intellectual discipline, restraint, and an honest appreciation of the limits of one’s own expertise. 

For College members contemplating expert work, there is both opportunity and obligation. Expert opinion in obstetrics and gynaecology is most valuable when provided by clinicians who remain clinically active, who understand the realities of contemporary practice, and who approach the task with humility rather than dogma. The function of the expert is not to construct an idealised standard ex post facto, but to assist the court in determining whether the care provided met the threshold of reasonableness, judged prospectively, contextually, and without the distorting benefit of hindsight. 

Justice in medicine does not demand perfection. It demands fairness. Our expert opinions should reflect nothing less.