The Medical and Health Liability Law No. '25' of 2018 defined medical error as an act, omission, or negligence that violates the prevailing professional rules within the available work environment and results in harm. If there is no approved Jordanian protocol applicable to the case, the expert must state the scientific basis of their opinion: is it a stable practice in Jordan, international guidelines, a foreign protocol, or contemporary scientific research to the incident? They must also clarify the applicability of the reference to the place and circumstances of service provision.
The expert does not replace the judge. Their task is to describe the facts and their sequence, determine the professional procedures and their position in relation to the contemporary scientific principles, and state whether they fall within the scope of acceptable discretion. Interpreting texts, weighing evidence, determining legal error, harm, causality, and distributing liability are within the court's function; appointing an expert is to seek technical knowledge, not to delegate judicial function, and their opinion does not bind the court under Article '86' of the Law of Civil Procedure.
Moreover, a difference of opinion between the expert and the professional decision under consideration in the lawsuit does not prove an error. There may be multiple acceptable opinions regarding the order of medical examinations, for example, or the choice between drug and surgical treatment, and the timing of surgery, and protocols may differ between countries. The criterion is not what the expert would personally do, but whether the decision goes beyond the limits that a competent and prudent professional could adopt under the same circumstances. Therefore, the expert should present the considered professional opinions, state the reason for their preference, and the limits of their certainty, as the British Medical Council guidelines explicitly require the expert to justify their opinion.
The justification of the technical opinion is of particular importance because the expert works after knowing the outcome. The collapse of a building, the death of a patient, or the loss of a lawsuit may make the outcome seem more predictable than it was, and the magnitude of the harm may lead to a harsh negative evaluation of professional conduct, as shown by scientific studies in cognitive psychology and its applications in law. Therefore, the sequence of events must be reconstructed from a perspective prior to the outcome, and the information, alternatives, and risks available at the time of the decision must be determined, distinguishing between the failure to achieve the desired outcome and the breach of the duty of care.
The expert must ask themselves: would I have directed the same criticism if the outcome of the professional conduct had been better? Is the alternative procedure scientifically agreed upon? What are its risks in the specific circumstances of the case? Thus, the reasoned report becomes a tool that enables the judge and the parties to test the technical opinion, protects the harmed party from negligence, and protects the professional from turning their obligation to exercise care into an obligation to achieve a result. This is the balance that the rules of professional liability protect and that judicial justice and the public interest require. It also enhances the court's role in evaluating the expert's performance according to the provisions of the system.
