The standard of care and expert evidence of accepted practice in medical negligence

The topic of this article is the perennial issue in medical negligence litigation of various kinds of the extent to which it is a defence to a charge of lack of reasonable care that the defendant's conduct complied with accepted professional practice. Recent English interpretations of the controversial Bolam principle are considered, before the current approach of the courts and the Health and Disability Commissioner in New Zealand is described, using case illustrations. In New Zealand expert medical opinion of accepted practice is relevant to, but not conclusive of, the standard of care. There is, however, more freedom than pursuant to the current English approach for a decision-maker to reject expert opinion of accepted practice, because he or she is able to examine not just the logical defensibility of the practice but its overall reasonableness, including where the practice involved a risk assessment on a matter of clinical judgment. A decision to reject expert opinion of accepted practice is more readily made in areas which do not involve assessment, diagnosis and treatment.     

Personal values and the value of expert testimony

Psychologists who routinely offer expert testimony to the courts about the problems of eyewitness testimony demonstrate an unwarranted degree of faith in experimental psychology. Although progress in the field ultimately depends on laboratory research, the extrapolation of laboratory research to the real world is fraught with difficulties. Among the difficulties are the following: Laboratory studies are typically not designed with ecological validity in mind, they involve fixed effects statistical designs, they do not tell us how individuals (as opposed to mean values) behave under various experimental conditions. Presentation of such studies as relevant to the specific conditions of a court case entails a significant misrepresentation of the results of the research.     

Psychiatric expertise in civil commitment: Training attorneys to cope with expert testimony

The learned treatise approach to challenging the psychiatric expert witness in civil commitment proceedings was investigated in the present study. An Ad Litem's Handbook, modeled after Ziskin (1975), was written and distributed to a group of attorneys who also received workshop training in aggressively defending the proposed patients at civil commitment hearings. TheseTRAINED attorneys were compared with control groups of attorneys not receiving the training intervention in terms of trial tactics, cross-examination profiles, and other courtroom behaviors in order to assess the impact of such training and the impact of the learned treatise approach in civil commitment hearings. Results indicated that, in spite of explicit endorsement of such tactics by the court,TRAINED attorneys did not alter their courtroom behaviors significantly in directions suggested by the special training and, like their untrained counterparts, did not aggressively challenge the psychiatric expert whose testimony argued for commitment of their clients.The research reported here is based primarily on the author's doctoral dissertation, completed at the University of Texas at Austin, May 1977. The author would like to acknowledge the assistance of Joseph Horn, Ph.D., dissertation committee chairman and the other members of the committee for their guidance.     

In the wake of Ake: the ethics of expert testimony in an advocate's world

The decision of the U.S. Supreme Court in Ake v. Oklahoma redefined the role of psychiatrists as experts in criminal cases. In addition to the expert's serving as evaluator and witness, the Court stressed the importance of the defense having a psychiatrist available to act as a consultant in the preparation and presentation of its case. This broader conception of the expert's role has raised ethical questions among psychiatrists, many of whom are concerned that their impartiality may be compromised. A careful analysis of Ake, however, demonstrates that substantial differences remain between the roles of consultant and advocate. Subtle pressures on impartial functioning will be increased, but they will not differ in kind from those operative before the decision. Several ethical issues related to the consultative role are considered and possible means of dealing with them addressed.     

Psychopathy,expert testimony,and indeterminate sentences: Exploring the relationship between Psychopathy Checklist‐Revised testimony and trial outcome in Canada

Purpose. Psychopathy, as measured by the Hare Psychopathy Checklist‐Revised (PCL‐R), has the potential to inform judges attempting to preventatively detain Canada's highest risk offenders. However, studies examining the stigma of the psychopathy label give reason to exercise caution when expert witnesses introduce PCL‐R scores into their testimony. Methods. Judges' written or oral judgments were gathered from a publically available database in Canada. Dangerous offender hearings (N = 136) were examined to determine how factors within expert witness testimony were related to sentences of indeterminate or determinate length. Results. Results show a trend for PCL‐R scores to be related to trial outcome. Specifically, psychopathy diagnoses were correlated to experts' ratings of treatment amenability which were in turn related to trial outcome. In addition, experts tended to show partisan allegiance in the way they scored offenders on the PCL‐R. Conclusion. Discussion advocates a measure of caution when using PCL‐R testimony in an adversarial court context. Further research clarifying the role psychopathy plays in court decisions is also encouraged.     

The reasonable person standard: a new perspective on the incentive effects of a tailored negligence standard

This paper compares the effects of a uniform reasonable person standard to a due care standard that is tailored to individual capabilities. This is done in a framework in which potential injurers can invest in developing greater capability. I show that the uniform reasonable person standard may induce better or worse investment incentives, depending on whether greater capability is represented by reduced precaution costs or reduced accident costs. In so doing, I show that recent results showing that the reasonable person standard creates better investment incentives are not general, but depend on the model of injurer capacity used. I go on to show the availability of “over-tailoring” of the negligence standard as a novel form of subsidy for investment in care technology. In some circumstances, holding an injurer to a lower standard of care than would be optimal in a perfectly static world can result in a trade-off between dynamic and static efficiency that is superior to that generated by either a uniform or tailored standard of care.     

Practical application of the Injury Severity Score (ISS) in expert forensic testimony

The retrospective analysis of the autopsy records of 50 homicides showed that the Injury Severity Score (ISS), a numerical scoring system initially developed to quantify the severity of injuries sustained in road traffic accidents, can also be useful for objectively describing and ranking the overall severity of trauma with regard to forensic issues. The present case report illustrates to what extent the ISS can help to assess the contribution of each assailant in homicides committed by several perpetrators. In the case presented the court was convinced that one perpetrator had inflicted four deep stab wounds to the victim's face (each with bony lesions), 2 stabs to the chest piercing the right lower pulmonary lobe and causing a haemothorax of 200 ml, an abdominal stab wound without involvement of a parenchymatous organ as well as multiple defence wounds of the arms. Thereafter, a second perpetrator was thought to have inflicted several heavy blows with a full water bottle causing severe contusions on the right side of the forehead, the chin, the left side of the face and a spider's web fracture of the frontal bone. Using the ISS an injury severity score of 24 was assigned to the first complex of injuries and a score of 10 to the second complex. The forensic conclusions with regard to prognosis and lethal outcome are discussed.     

The expanding role of expert psychological evaluations and testimony in Hague child abduction litigation

Hague Convention cases are a growing niche in forensic assessments. These cases focus on returning children, or preventing their return, after international abductions, by one of the parents, has occurred. This article focuses on the legal underpinnings of the Hague Abduction Convention, the “affirmative defenses” that may be invoked to prevent a return order, including “grave risk of harm,” “mature objection”, and the “well settled defense.” The article will also focus on the increasing roles that forensic evaluators play in these matters, the distinction between the role of forensic experts in custody proceedings and Hague cases, and the inherent limitations present in these unique kinds of evaluations.     

Effects of expert psychological advice on human performance in judging the validity of eyewitness testimony

A review is made of recent experimental research regarding how well human observers can judge the accuracy of eyewitness testimony. It is concluded that people: (a) may be overwilling to believe in the accuracy of eyewitnesses' memory; (b) rely too heavily on the confidence of eyewitnesses in judging the validity of testimony; (c) fail to adequately account for witnessing conditions across crimes; and (d) cannot discriminate between accurate and inaccurate witnesses within crimes. New data are reported from an experiment designed to test the effects that expert psychological advice has on subject-jurors' performance with regard to these four deficiencies. The results showed that expert advice served to eliminate the overbelief bias and greatly reduced subject-jurors' reliance on the confidence of the witnesses. Expert, advice did not improve the extent to which subject-jurors took account of the witnessing conditions across crimes nor their ability to discriminate between accurate and inaccurate witnesses within crimes.     

Medical examiner/coroner records: uses and limitations in occupational injury epidemiologic research

Epidemiologic research often relies on existing data, collected for nonepidemiologic reasons, to support studies. Data are obtained from hospital records, police reports, labor reports, death certificates, or other sources. Medical examiner/coroner records are, however, not often used in epidemiologic studies. The National Institute for Occupational Safety and Health's Division of Safety Research has begun using these records in its research program on work-related trauma. Because medical examiners and coroners have the legal authority and responsibility to investigate all externally caused deaths, these records can be used in surveillance of these deaths. Another use of these records is to validate cases identified by other case ascertainment methods, such as death certificates. Using medical examiner/coroner records also allows rapid identification of work-related deaths without waiting several years for mortality data from state offices of vital statistics. Finally, the records are an invaluable data source since they contain detailed information on the nature of the injury, external cause of death, and results of toxicologic testing, which is often not available from other sources. This paper illustrates some of the ways that medical examiner/coroner records are a valuable source of information for epidemiologic studies and makes recommendations to improve their usefulness.