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PubMed1997

A judicial point of view with regard to the testimony of medical experts.

This is an era of the expert witness. The classic description of an expert--"... no scientific man ought ever to become the partisan of a side: he may be the partisan of an opinion in his own science"--Lord MacMillan. The current tendency to be less than impartial or objective: the anxieties of Lord Woolf in Access to Justice-Factors which may lead to partiality: (a) explosions of claims for personal injury or product liability; (b) the emergence of the contingency fee as the primary fund for such litigation. Problems facing an expert--the arrogance of assurance--the power of presentation--the anxieties of the witness box. The virtues of education and training. The importance of judicial management to control expert evidence and avoid escalating costs and delay in litigation. The duty of the Judge is to ensure that the expert does not practice a fraud on the administration of justice.

Ethics, Medical↗
PubMedDate not supplied

Malpractice and avascular necrosis: legal outcomes.

Every physician, but particularly specialists, have reason to be concerned about medical legal issues. Avascular necrosis has been established as a possible serious complication of steroid treatment in inflammatory bowel disease. Two specific Canadian cases illustrating the sequence of medical history, time, expert testimony and legal outcomes are presented. Awards plus costs in the order of $1 million or more were the result of these legal proceedings. The courts stated the major factors in finding liability against doctors were the failure to show the patient had been fully informed of treatment options. There was considerable weight given to expert testimony and the patient recollection of events to support their contentions. Adequate contemporaneous record keeping was absent to contradict evidence of the patients. The judges in both illustrative examples leaned heavily on Supreme Court of Canada guidelines whereby the patient must be informed at all stages of the medical process.

Adult↗
PubMed2001

[Challenges in social medicine counseling and expert assessment].

The services of expert testimony and professional consultation in sociomedicine are considerably challenged. It is not so much the question of maintaining their traditional functions but of developing them in order to maintain at least the status quo. These challenges consist for example of the lack of a scientific basis for the complex function of allocation, piloting and control of medical resources. Some new approaches are offered by the ICIDH, by new instruments of medical assessment and by quality management including "evidence-based medicine". Furthermore the services of expert testimony must bridge the gap between patients and social services in a way which is satisfactory for the population. Nevertheless, these services must maintain strict independence.

Evidence-Based Medicine↗
PubMed2001

Do silicone breast implants cause rheumatologic disorders? A systematic review for a court-appointed national science panel.

OBJECTIVE: To assist in evaluating expert testimony and scientific evidence presented in law suits brought against silicone breast implant manufacturers, a US District Court Order established a National Science Panel to assess whether existing studies provide scientific evidence of an association between silicone breast implants and systemic classic/accepted connective disease, atypical connective disease, and certain signs and symptoms identified by plaintiffs in the law suits. Local disorders potentially associated with these implants were not addressed in this review. Therefore, we performed a systematic review of published studies on the association between silicone breast implants and systemic connective tissue disorders. METHODS: Data from relevant studies (human cohort, case-control, or cross-sectional studies with > or = 10 participants and appropriate controls) were identified through literature searches of Medline, Current Contents, HealthStar, Biological Abstracts, EMBase, Toxline, and Dissertation Abstracts. Two independent reviewers, using standard collection forms, extracted data from the included studies. Adjusted relative risks (RRs) in cohort studies and odds ratios (ORs) in case-control and cross-sectional studies were reported if provided; otherwise, unadjusted RRs and ORs were calculated. RESULTS: Twenty-four studies meeting inclusion criteria were identified. No association was evident between breast implants and any established or atypical connective tissue disorder. There was discordance among studies in reports of arthralgias, lymphadenopathy, myalgias, sicca symptoms, skin changes, and stiffness. CONCLUSION: The panel found no evidence to support expert testimony suggesting an association between silicone breast implants and connective diseases. Discordance for symptoms may reflect differences in symptoms included in various categories, the small number of cases, and the effect of having single subjects with > 1 symptom represented in analyses of each symptom reported. The process presented here is an early example of the use of independent scientific panels to help courts clarify scientific evidence in legal proceedings.

Breast Implants↗
PubMedDate not supplied

Medical legal aspects of clinical monitoring.

Modern laboratory technology has spawned a plethora of techniques for measuring and monitoring drug concentrations and body constituents; but the availability and frequent over-use of these determinations, some of which are exotic and require specialized personnel and expensive apparatus have further escalated the already high cost of medical care in several ways. The specter of medical malpractice suits has compelled the physician to practice defensive medicine including ordering unnecessary monitoring procedures, particularly for drug levels. Further impetus has been superadded by the courts and state legislatures; for example, phenylketonuria (PKU) determinations are mandatory in almost all states. Court rulings have held that "common knowledge" not expert testimony, may be all that is necessary to hold the doctor culpable for not ordering a test; nor is expert testimony necessarily required if the Physicians Desk Reference (PDR) or drug company insert recommends that certain tests or monitoring procedures be performed and the doctor fails to comply. (PSRO) programs will force further conformity, leave less to the discretion of the physician and place the government in an ever more regulatory role. Professional societies should take cognizance of the impropriety and danger of the government dictating diagnosis and treatment and should launch a vigorous program to scrutinize pending regulatory legislation and to make official and informed representations to appropriate legislators.

Adult↗
PubMed1992

Assessing competency to make a will.

The finding by a court that the author of a will (the testator) lacked mental capacity or was subject to undue influence at the time the will was executed can invalidate the will. A psychiatrist may be asked to assess the competency of a testator when he or she is planning to create or modify a will or after the death of a testator when the will is challenged. To provide guidelines for such evaluations, the authors reviewed the relevant psychiatric, forensic, and legal literature and drew on their own professional experience as well. They outline a systematic approach to the contemporaneous and retrospective evaluation of the elements that affect decisions about mental capacity and undue influence and offer suggestions for the organization and presentation of expert testimony. Awareness of the relevant legal principles and a systematic clinical approach to the assessment can maximize the quality of the psychiatric consultation and expert testimony.

Mental Competency↗
PubMed2006

Standardizing the psychological autopsy: addressing the Daubert standard.

The psychological autopsy, as a research, clinical, and forensic tool, has gained widespread usage in suicidology over the last half century. In forensic settings, the lack of standardization and problems determining the procedure's validity and reliability pose significant issues for the procedure's admissibility under the Daubert standard of evidence. The Daubert standard requires that evidence must be founded on scientific knowledge and established five guidelines for judicial decisions regarding the admissibility of expert testimony. In this paper we examine expert opinion regarding the psychological autopsy and recommend a standardized protocol or template regarding areas and lines of inquiry for a psychological autopsy used in legal cases.

Autopsy↗
PubMed1985

Qualifying the psychiatrist as a lay witness: a reaction to the American Psychiatric Association petition in Barefoot v. Estelle.

Organized psychiatry has recently begun to define limits to expert testimony. The American Psychiatric Association filed an amicus brief in the case of Barefoot v. Estelle urging legal curtailment of psychiatric testimony as to future dangerousness and prohibition on Constitutional grounds of expert psychiatric testimony solely based on hypothetical data. The Supreme Court refused relief on both questions. Psychiatric testimony to ultimate questions at law is limited by the inherent contextual variables of psychiatric clinical and experimental knowledge and practice. A forensic science model for psychiatric participation with explicit psychiatrically defined limitations is proposed using competence to stand trial as an example.

Antisocial Personality Disorder↗
PubMed1992

Neurologist as expert witness.

Prevailing liberal rules of evidence permit qualified medical and scientific experts to offer opinions designed to help courts decide issues to which their expertise relates. The opinions can be based on direct examinations, review of data assembled by others and data or inferences of a type relied on by other experts in the field. Application of these rules is illustrated through analysis of expert testimony in litigation involving a neurologic syndrome allegedly caused by an immunization and in a case involving controversy over the extent and outcome of major brain injury. Concerns about misuse of expert medical and scientific testimony in litigation are addressed. The article closes with a consideration of approaches designed to improve the reliability of expert testimony.

Brain Damage, Chronic↗
PubMedDate not supplied

Clinical practice guidelines and medical malpractice.

As clinical practice guidelines become more and more prevalent, they will define the requisite "standard of care" for medical treatment and impact medical malpractice litigation. They may even replace expert testimony.

Defensive Medicine↗
PubMed1988

The psychiatrist's guide to right and wrong: judicial standards of wrongfulness since M'Naghten.

In insanity defense litigation, the precise legal definition of wrongfulness is often critically important. References in the M'Naghten Rules to the appropriate standard of wrongfulness were ambiguous, resulting in a divergence of judicial opinion as to whether wrongfulness means legal wrong, subjective moral wrong, or objective moral wrong. This article reviews and analyzes these three judicial standards of wrongfulness in the context of case law from jurisdictions that follow each of the respective standards. The evolution of knowledge of right and wrong tests of criminal responsibility is traced back to its philosophical roots. Most psychiatrists claim no expertise in matters of morality or law. The American Psychiatric Association would bar psychiatric expert testimony on the ultimate issue of insanity, on the grounds that there are "impermissible leaps in logic" when psychiatrists opine on the probable relationship between medical concepts and moral-legal constructs. Whether or not they testify on the ultimate issue, psychiatrists should ascertain the applicable standard of wrongfulness in order to properly relate their findings to the relevant legal criteria for insanity and thereby enhance the probative value of their testimony.

Expert Testimony↗
PubMed1995

The psychological autopsy: a useful tool for determining proximate causation in suicide cases.

This overview article examines the applications of the psychological autopsy method in determining proximate causation in suicide cases. The article reviews the history of the psychological autopsy and describes its procedure and how it has proved helpful in explicating proximate causation. The five standards currently used by the courts to determine proximate causation in suicide cases are described, as are a variety of applications of the psychological autopsy method, including its application to workers' compensation cases, product liability cases, and medical malpractice cases. In particular, issues of prediction and protection are addressed. Finally, there is a discussion of an application of the psychological autopsy to criminal cases. The article concludes with a discussion of the issues raised in the use of the psychological autopsy during expert testimony and the considerations that should be addressed by an expert witness contemplating the use of the psychological autopsy method.

Adolescent↗