10/16/2018 La Law and and (H (Hearin ring Di Dis ‐ ) O ) Order: Expe Experiences riences in in Fo Fore rensic Audiology Audiology Robert W. Sweetow, Ph.D. Professor Emeritus University of California, San Francisco Is this something you want to do? • Interesting • Challenging • Financially rewarding • Time ‐ consuming • Can be nerve ‐ wracking 1
10/16/2018 Forensic • Legal proceedings • Medical ‐ legal testing Types of cases • Criminal versus Civil Law • Criminal law = broken city, state or national law resulting in criminal prosecution • Civil law = violates a duty to your neighbor resulting in a “Tort case”. • Defendant had a duty to the plaintiff • Defendant neglected that duty • An injury or loss occurred caused by the defendant’s negligence • Malpractice, personal injury, product liability, class action 2
10/16/2018 Some cases can be criminal and civil And here’s some that might go criminal or civil or ………….? Terms and credentials • Fact witness versus expert witness • Fact (material) witness = typically for criminal trials • Expert witness = typically for civil trials • Expert witness is allowed to express opinions and conclusions, unlike fact witnesses, who can only present the facts as they saw them. • Fact witness can also be a potential expert as in the case of a treating audiologist. • Expert witness criteria, i.e. credentials • Expertise in some field important for the case • Lack of unique information about the case • The ability to state an opinion • Legal consultant 3
10/16/2018 Expert Roles • Treatment • Examining • Consulting • Testifying Qualifications for Expert • A current, valid license is essential if you are an examiner, but not essential for an expert witness. • Specialties should be appropriate to the subject matter • Demonstrate evidence of continuing medical education • Age and experience can be a factor • Personal/Professional history 4
10/16/2018 Expert Witness Responsibilities • Review case information and testify to its content fairly, honestly and in a balanced manner. • May be called upon for an opinion based on the facts of the case. • May be asked to personally evaluate patient • Be prepared to distinguish between actual negligence and an unfortunate outcome. • Review the standards of practice (standard of care) prevailing at the time of the alleged occurrence • Be prepared to discuss important alternate methods and views Responsibilities ‐ Continued • Be prepared to state the basis of your testimony: • Personal experience • Specific clinical references (document them, unless you don’t want them brought up) • Evidence-based guidelines • Accepted opinion in the field • Scientific evidence is admissible only if based on general acceptance • Compensation should be reasonable and commensurate with time and effort • Unethical to link compensation to outcome of case 5
10/16/2018 Expert witness • Never participate in the case where you can directly profit from a victory by either side • Be equally available to plaintiff or defendants • Be prepared to document percentage of time serving as an expert witness and amount of compensation received and every single conversation you have with the attorney……or not! Guidelines • Ethically and legally obligated to tell the truth • Courtroom transcripts and depositions are public records and subject to review • Failure to provide truthful testimony can expose expert witness to: • Criminal prosecution • Civil suits for negligence • Revocation or suspension of professional license 6
10/16/2018 Forensics malpractice • Negligible possibility • But if you work for a hospital, university, etc., your malpractice may not cover unless your work is done for the emplyer’s benefit Situations you will be in • Depositions • Trial • Direct examination • Cross examination • Re-direct and re-cross • You will be challenged on your past (written and oral) statements (tinnitus and whiplash) • You will be challenged on your court room demeanor 7
10/16/2018 Two roles for depositions • Discovery (to find out what the expert will say at trial) • Perpetuate the expert’s testimony for use in court, in the event you are unavailable during the trial Direct examination • Obligation is only to answer the questions that are asked • Even if additional information might be helpful to the attorney, it is best to not answer questions that have not been asked 8
10/16/2018 What experts should do • Resist the temptation to think of the attorney as “your” attorney • Expert may play background roll, helping the attorney prepare the case, rather than testifying in court Cross ‐ examination • Opposing attorney may attack your…. • Qualifications • Knowledge • Experience • Reasoning • Judgment • Impartiality • Consistency • Knowledge of all the facts 9
10/16/2018 Cross examination • Never exaggerate or understate your qualifications • Do not say “there are no authoritative references”; because this can cast doubt on both the field and the expert • Instead say “there is extensive literature in the field, but there are areas of both consensus and controversy” Things not to do • Step outside expertise • Lie • Talk too much • Speculate (unless asked by client attorney) • Try to impress • Deny previous statements (tinnitus example) • Put too much in writing (e.g. e ‐ mails) 10
10/16/2018 "Are you a medical doctor?" • “No” • "What gives you the authority to comment on this patient's condition?" • “Part of my job is to teach the medical doctors what they need to know about hearing and auditory function.” “Are you being paid for your testimony in support of the plaintiff or defendant?” • A simple “yes” would imply bias; • Better answer would be “I am paid for my time and expertise regardless of my opinions, the outcome of the case, or whether I am called to the witness stand or not. My job is simply to educate” 11
10/16/2018 Attorney behavior • Attorney’s obligation is to his or her own client, not to the expert • Should not withhold evidence from expert • Writing declarations • Coercing Ethical Dilemnas • Is the client a plaintiff or a patient • Exaggerating on TFI or crying out for CBT • Who is responding, wife or patient? • Attorney is withholding evidence 12
10/16/2018 Understand the rules of the subject For example, Courts consider the onset of symptoms as the triggering event 13
10/16/2018 Eggshell Rule • Despite the fact that the degree of injury is unusual, if the defendant is legally responsible for the accident then the defendant is liable for the result. Under the “eggshell plaintiff” rule, the defendant must still compensate the victim for the full extent of the injury Daubert v. Merrill Dow Pharmaceuticals • Evidence must be reliable and trustworthy (supported by scientific methods and procedures) • Evidence must be relevant (and subjected to peer review) • Evidence must have a known potential rate of error • Evidence should be generally accepted by the scientific community 14
10/16/2018 Six criteria for tinnitus (VA) • Complaint must be unsolicited • Must accompany a compensable level of hearing loss * • Treatment history of one or more attempts to alleviate • Evidence to support personality change or sleep disorders • No contributory history of substance abuse • Supported by statements from family or significant other How to get into the Forensics universe • Peer reviewed publications • Invited lectures word of the mouth references suggesting competence, integrity, communication skills, and cooperation • Past cases should include being a witness for both sides (plaintiff and defendant) • Expert lists on closed websites 15
10/16/2018 Some of my most interesting personal cases (not in any special order) • Junkyard sting • Yosemite fracture • Repo man • BART and unlawful discharge • Movie class action • Large earmold and external otitis • Airbag deployment (>160 dB peak level) • Medication overdose (quinidine) Pt. MW #1: FREQUENCY IN HERTZ 125 250 500 1000 2000 4000 8000 -10 0 Speech R L 10 SRT (dB) 15 15 20 > HEARING LEVEL IN dB Discrim (%) 84 88 30 Discrim (dBSL) 40 35 (ANSI - 1996) 40 50 60 70 80 90 100 110 120 750 1500 3000 6000 16
10/16/2018 Pt. MW #2 Wrong meds; quinidine for atrial fibrillation vs. quinine FREQUENCY IN HERTZ 125 250 500 1000 2000 4000 8000 -10 0 Speech R L 10 SRT (dB) 35 40 20 HEARING LEVEL IN dB > Discrim (%) 80 88 30 > > Discrim (dBSL) 40 35 (ANSI - 1996) 40 > > 50 60 70 80 90 100 110 120 750 1500 3000 6000 Pt. MW #4 FREQUENCY IN HERTZ 125 250 500 1000 2000 4000 8000 -10 0 Speech R L 10 > > > > SRT (dB) 20 20 20 X HEARING LEVEL IN dB 30 Discrim (%) 96 96 > (ANSI - 1996) 40 Discrim (dBSL) 40 40 50 60 70 80 90 100 110 120 750 1500 3000 6000 17
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