Medical Expert Testimony Research Articles

Black Robes and White Coats: Daubert Standard and Medical and Legal Considerations for Medical Expert Witnesses.

Expert testimony can play a pivotal role in a legal case involving a medical issue, but it is crucial that this testimony be scientifically sound. In the United States, the Frye Standard demanded that such expert medical testimony be "generally accepted," but it has been superseded by the more demanding Daubert Standard. Under Daubert, judges became "gatekeepers" as to what scientific material was admissible in court and what might be dismissed as junk science. While a vast improvement over Frye, the Daubert Standard still faces its own problems. Judges usually lack scientific and medical expertise and sometimes have to do their own medical research to be able to evaluate the experts and their testimony. Expert witnesses can be subjected to an adversarial Daubert challenge, even during trial, to establish their credentials and the evidence they are reporting. About half of all judges have had no formal education in handling scientific evidence, but 91% felt comfortable in their gatekeeper role. Considerations for expert witnesses include training or coaching, familiarity with the entire case and courtroom procedures, and an ability to not just know the evidence but to be able to communicate it effectively to a lay audience (jury). Some countries have pioneered a concurrent testimony approach in complex cases, whereby experts argue the evidence of the case under oath before a judge in advance of the trial to determine where there are points of agreement and where the main areas of contention reside. This process, colorfully called "hot tubbing," is aimed at a more conciliatory approach to reaching compromises. Nevertheless, bias still can result even in hot-tubbing cases, and more research is needed to better understand the nature of jury bias and how it can affect jury decisions in complex medical cases.

The Image of Medical Expert Testimony in Civil Litigation

The Image of Medical Expert Testimony in Civil Litigation

Best Practice Alerts: A Poke in the Eye or an Efficient Method for Safer Prescribing?

Best Practice Alerts: A Poke in the Eye or an Efficient Method for Safer Prescribing?

"More a Matter for Medical Men": The King's Road Reserve Relocation and Public Health in Early 20th-Century Sydney, Nova Scotia.

The forced removal and relocation of the King's Road Reserve in Sydney, Nova Scotia, between 1915 and 1926 is a key example of how settlers used public health discourses to dispossess Indigenous lands in Canada. At the turn of the twentieth century, non-Indigenous Sydney residents lobbied the government to remove the Mi'kmaw reserve, which was located in an expanding downtown core. They justified this removal by arguing that Mi'kmaq were public health threats to themselves and their white neighbours. Ottawa responded to this case, and other cases across Canada, by implementing section 49A of the Indian Act in 1911. This amendment allowed settlers to request an Exchequer Court trial to rule on urban reserve relocations if land surrenders could not be obtained. The King's Road Reserve relocation has yet to be examined with a medical lens. Doing so illuminates the centrality of medical expert testimony during this particular episode of twentieth-century colonialism.

Understanding Medical Malpractice Lawsuits.

Understanding Medical Malpractice Lawsuits.

Re-evaluation of abusive head trauma in Norway appears flawed.

A review by Wester et al in Acta Paediatrica presented 17 adjudicated cases of Norwegian infants with abusive head trauma (AHT).(1) Their interpretation of the medical findings identified alternative diagnoses for 16 of the 17 children and suggested that the injuries were not inflicted and may have been the result of spontaneously occurring events. The authors stated that eight children had clinical and radiological characteristics consistent with external hydrocephalus, complicated by chronic subdural haematoma, and that six had findings compatible with hypoxic-ischaemic insults. Fractures were attributed to prematurity and sequelae from birth trauma. If their interpretations are correct, this study calls for a thorough review of how the medical community, forensic experts and the courts manage AHT cases. However, there are several elements of concern in the Wester et al study that we believe need clarification before a conclusion can be reached.

Development and External Validation of a Clinical Decision Support Tool for Managing Children with Minor Head Trauma and Intracranial Injuries

Background: There are no validated tools guiding the appropriate level-of-care for children with minor head trauma (MHT) and radiographic intracranial injuries. We developed and externally validated a clinical decision support tool for risk-stratifying these patients. Methods: The derivation cohort included children enrolled in the PECARN head injury study from 2004-2006. The validation group consisted of a separate cohort of children with MHT treated at six centers from 2006-2019. Children < 18 years were included if they presented within 24 hours of injury, had a Glasgow Coma Scales (GCS) score of 13-15, and had intracranial injury on neuroimaging. A risk model was developed using recursive partitioning to predict serious neurological events, defined as neurosurgical intervention, intubation longer than 24 hours due to head injury, or death from head injury. Risk thresholds were determined for clinical decision-making. This model was compared to a logistic regression model previously developed using the PECARN cohort. Findings: Based on 839 patients meeting inclusion criteria in the PECARN cohort, the tree-based model included seven predictors, with midline shift, depressed skull fracture, epidural hematoma, and GCS score being the most influential. Three risk thresholds were evaluated to classify patients as ‘low’ risk. In the validation cohort consisting of 1,630 patients, the most conservative cutoff (i.e. any predictor present) identified 119/119 children with serious neurological events (sensitivity 100%; 95% CI 96·9-100), but had the lowest specificity (26.3%; 95% CI 24·1-28·6). All three thresholds had negative predictive values above 99% and collectively outperformed the logistic regression model. Using these thresholds, a clinical decision support tool was created that identified 75% of the population as ‘low’ or ‘very low’ risk. Interpretation: We developed and validated a clinical decision support tool that accurately risk-stratifies children with MHT and radiographic intracranial injuries. This tool can potentially improve patient safety and reduce resource use. Funding : Thrasher Research Fund and the Agency for Healthcare Research and Quality. Funding Statement: This study was funded by grants from the Agency for Healthcare Research and Quality (1F32HS027075-01A1) and the Thrasher Research Fund (#15024). Declaration of Interests: MAO reports grant funding from Merck, Sanofi Pasteur, and Pfizer, and consulting fees from Pfizer. EJ reports medical expert testimony and patent holdings (US Patent 9993631). DDL has received research funds and/or research equipment for unrelated projects from Medtronic, Inc., Karl Storz, Inc., and Microbot Medical, Inc, and has received philanthropic equipment contributions for humanitarian relief work from Karl Storz, Inc. and Aesculap, Inc. No other authors disclose any competing interests. Ethics Approval Statement: All data analyzed were from the deidentified, public-use dataset, and consequently the Washington University in St. Louis Human Research Protection Office deemed the analysis not subject to institutional review board (IRB) oversight.

Arsenic, Familicide, and Female Physiology in Nineteenth-Century America.

Sarah Jane Whiteling was accused of fatally poisoning her husband and two children in Philadelphia in 1888. The case prompted public outrage over the appearance that Ms. Whiteling's motive was to collect life insurance. It was evident, however, that she was disturbed, raising a question of culpability. Dr. Alice Bennett, the first female physician in charge of an asylum, provided the defense with expert testimony on the defendant's mental state. Dr. Bennett, who had little forensic but much clinical experience, proposed a physiological theory of insanity among women with reproduction-related derangements. At that time, cultural ideas about "female poisoners" colored popular and journalistic perceptions of Ms. Whiteling. Familicide was considered unconscionable because a mother's duty was to nurture and protect her family. When Ms. Whiteling was convicted and sentenced to death, Dr. Bennett undertook a campaign for commutation. Her unsuccessful efforts to reduce culpability were followed by Ms. Whiteling's hanging in 1889, the first execution of a woman in Philadelphia since colonial times. This article recounts the Whiteling case, Dr. Bennett's involvement in it, and how it relates to what is known about familicide. It is argued here that Dr. Bennett was a pioneer in applying medical expert testimony to effect individualized mitigation.

Ethical Testimony in Cases of Suspected Child Maltreatment: The Ray E. Helfer Society Guidelines.

New guidelines for ethical testimony were developed by the Ray E. Helfer Society, the largest medical professional society for physicians working in the field of child maltreatment. Building on the foundation of ethical guidelines set forth by the American Academy of Pediatrics, these new guidelines set detailed standards for testifying in cases of suspected child maltreatment and recommend that hospitals, medical practices, academic institutions, and professional societies hold their members accountable for court testimony related to child maltreatment as with other forms of medical practice and expert testimony.

In Case You Haven't Heard…

In the interests of mutual transparency… Andrew Kolodny, M.D., published a retrospective declaration of conflict of interest in the Sept. 4 issue of the Journal of the American Medical Association (https://www.ncbi.nlm.nih.gov/pubmed/31483441), referring to two articles written in 2017 and 2018 with former Centers for Disease Control and Prevention Director Thomas Frieden (https://www.ncbi.nlm.nih.gov/pubmed/29049522 and https://www.ncbi.nlm.nih.gov/pubmed/29677298). In this month's clarification, he added the information about being “expert witness in malpractice cases involving opioid prescribing.” At first glance, this made it appear that, for the first time, Kolodny was disclosing his medical expert testimony against opioid pharmaceutical companies in massive lawsuits. He had already done so. We asked Ivan Oransky, M.D., co‐founder of Retraction Watch and executive director of The Center For Scientific Integrity, for a comment. “The rules around conflict of interest are still in formation,” Oransky said. But instead of “death by 1,000 cuts,” with accusations flying, authors and journal editors should just make all possible conflicts clear at the start via the ICMJE form. Kolodny, who has been paid to tackle opioid pharma and at the same time has advocated against opioid pharma is a perfect example of this quandary. For more, read https://www.statnews.com/2018/09/14/jose‐baselga‐doctors‐industry‐conflict/.

Child sexual abuse: The significance of the history and testifying on non-confirmatory findings.

BackgroundDespite numerous studies and publications, there is still a common expectation that a medical assessment can confirm or rule out child sexual abuse (CSA). The truth is that CSA can never be ruled out and can seldom be confirmed on clinical grounds.AimThe objective of this article was to suggest which aspects to consider when the expert medical witness in a CSA case needs to explain why CSA can seldom be confirmed and can never be ruled out. The importance of a sound medical and medico-legal history was discussed because the history was generally the only positive ‘finding’ of the assessment of children who have possibly been abused.MethodAuthoritative sources were used to support the explanation of reasons for an absence of corroborative clinical findings in CSA, as defined by the World Health Organization. The authors structured the individual sections by providing a background on which to base the testimony. They then summarised the clinical forensic significance of the information which should be offered in the courts and which should reflect on the court records, to be taken into account in the eventual decision, which will be made by the court.ResultsA guideline was provided for answering questions frequently posed to the expert witness in child abuse cases where there were no positive findings.ConclusionA structure for the explanation of reasons for a normal clinical examination when evaluating children who may have been sexually abused may reduce the discomfort of medical witnesses and improve the quality of expert medical testimony.

Delay, Deny, Wait Till They Die: Balancing Veterans’ Rights and Non-Adversarial Procedures in the VA Disability Benefits System

The refrain “Delay, Deny, Wait Till They Die” is more than a slogan for disabled American veterans. It is a battle cry for soldiers, sailors, and airmen who have long put aside their armaments but remain entangled in the unending appeals process of the Department of Veterans Affairs’ (VA) disability benefits system. When Congress created a system for the fair and equitable distribution of military benefits, it did so with the intent that the system be non-adversarial. Congress did not want disabled veterans pitted against the nation that they had sought to defend in litigation over disability benefits. However, defining the contours of that non-adversarial system has proven to be more difficult than Congress ever anticipated. The paternalistic and protective features of the system designed to insulate veterans from the burdens of adversarial litigation have left veterans without legal recourse to address system failures. Using the VA’s process for developing expert medical testimony as an example, the article examines the costs and benefits of the non-adversarial process, and argues that adversarial procedures must be woven into the fabric of the veteran-friendly system to ensure that veterans’ rights are protected. The article concludes that without adversarial processes to compliment the veteran-friendly rules, the VA model relegates disabled veterans to a substandard process for adjudicating disability benefits.

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"If the Problem Persists, Come Back To See Me…."-An Empirical Study of Clinical Negligence Cases Against General Practitioners.

The law of negligence, as it applies to General Practitioners (GPs), is underexplored in the literature. There has been no substantial research undertaken that has penetrated deeper into claims that have actually reached court in order to analyse judicial reasoning pertaining to both breach of duty and causation. Given the increased pressures that GPs now face, these are important questions to consider. It is against this backdrop that this article seeks to present the findings of an empirical investigation into a number of reported clinical negligence claims brought against GPs. This analysis provides an original contribution to the developing academic discussion surrounding the changing nature of the doctor-patient relationship, and how it has come to be viewed in the eyes of the law. It also assesses the extent to which judges have become more receptive to protecting patient rights through the law of negligence, engaging in the expanding discourse concerning judicial deference to medical decision-making. It is argued that judges should sometimes show a greater propensity to question expert medical testimony in support of GPs, because some of the issues GPs typically face are less complex than in other clinical negligence cases involving technical areas of medicine, and that causation does not appear to be such a key factor in defeating patient claims. The work also provides useful guidance for GPs and their advisers in respect of where liability is most likely to be founded and how behaviour can be modified accordingly to reduce the chances of being sued.

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False Expert Witness Testimony in a Medical Negligence Case

In order to successfully litigate a claim for medical negligence, both plaintiffs and defendants rely heavily on medical expert testimony to support their respective positions. Here, we present a c...

Medical expert testimony as conflict of interest regarding the onset of rheumatoid arthritis following trauma.

Medical expert testimony as conflict of interest regarding the onset of rheumatoid arthritis following trauma.