Clinicians As Expert Witnesses In Traumatic Brain Injury Cases

In Baxter v. Temple, [1] a New Hampshire Supreme Court case in which plaintiff alleged she suffered brain damage as a result of exposure to high levels of lead paint, defendant's "forensic" neuropsychologist, David Faust, Ph.D. argued that while plaintiff's treating neuropsychologist's testing may have been appropriate in a "clinical" setting, her choice of tests in a "forensic" setting was inappropriate and invalid. Over the years, there has developed a mythical belief that medical providers and clinicians should not serve as expert witnesses and that only "forensic" independent examiners should be permitted to serve as expert witnesses. [2]

[3] This belief has become conventional wisdom [4] and can be added to what Greiffenstein has labeled a "clinical myth of forensic neuropsychology." [5]

Is there really a difference between clinicians and forensic experts when it comes to testifying in traumatic brain injury cases? Should clinicians refrain from acting or serving as expert witnesses? Conversely, should clinicians be encouraged to serve as expert witnesses and is this "conventional wisdom" nothing more than a conspiracy by defense forensic experts to limit or even prohibit an injured TBI patient's best weapon at trial?

A physician, neuropsychologist or therapist often is asked to testify in a TBI personal injury trial either as a treating doctor, an expert witness or both. [6] As a treater, that medical professional has obviously provided medical or psychological treatment to the injured plaintiff and is being asked to provide testimony regarding the treatment that was provided. This witness will be asked to provide his or her opinion as to a diagnosis and often whether or not the diagnosis and treatment provided was causally related to the trauma involved in the case. [7] However, questions as to prognosis are often left unquestioned.

On the other hand, the treating medical provider may be asked to play a dual role, acting not only as a treating doctor, but also to providing expert testimony not only regarding diagnosis and causation, but prognosis as well as other expert questions which may arise in any given specific case.

Thirdly, the doctor may be asked to perform a forensic examination, a situation where the expert has no patient/physician relationship and is requested to review numerous medical, scholastic and employment records and render expert testimony often along the same lines as the clinician who is participating in a dual treater/expert role.

In the medical field, the conventional wisdom seems to be that treaters or clinicians should not serve a dual role acting as both a treating doctor and an expert witness. [8] [9] Reid argues that there are five reasons why it is "usually inappropriate and a disservice to the court, for a doctor or a therapist to assume the dual role of treater and expert witness." [10] The five reasons provided by Dr. Reid are:

 

  1. A treatment relationship creates a professional, ethical and legal (or fiduciary) obligation to act in the patient's best interest both during and after the treatment relationship. Since forensic reports and testimony require objectivity regardless of the patient's wishes or needs, an inherent conflict is created.
  2. The clinician who testifies regarding a current or past patient knows or should know that he or she is required to act in the patient's interest and may even have a personal affinity for the patient's viewpoint. This creates a danger of intentional bias.
  3. There is a danger of unintended bias toward the patient.
  4. Because a treating clinician who anticipates reporting to a third party such as a lawyer, court or insurance company, professional ethics require that this be discussed with the patient as early as it is feasible. This awareness, according to Dr. Reid, affects the patient's revelations to the clinician and thus the validity of any report or testimony.
  5. The clinician's roles in training are not forensic.

An in-depth review of these five reasons provided by Dr. Reid failed to support the underlying thesis that clinicians cannot or should not act in this dual role.

First, testifying as an expert on behalf of one's patient cannot be seen as failing to act "in the patient's best interest both during and after the treatment relationship." The author's argument that "forensic reports and testimony require objectivity" is accurate. However, it is naive to believe that forensic experts provide objective testimony, while clinicians do not. Bigler correctly recognizes the inherent bias present in forensic work. [11]

The recent disclosure exposed by the Center for Public Integrity and published in Mother Jones provides a shocking revelation as to the lack of objectivity in defense forensic evaluations. There, it was revealed that defense forensic experts were paid millions of dollars by the welding industry which had been embattled in litigation over welding fumes containing manganese, a toxic metal, was the cause of numerous plaintiffs' cognitive complaints. [12]

Thus, what is the greater fear? A clinician's "lack of objectivity" in testifying on behalf of his or her patient or the lack of objectivity of expert forensic witnesses who are paid to distort their research, manipulate their data and to testify falsely on behalf of their defense clients.

Certainly, there is always the issue of intentional or unintentional bias, legitimate issues raised by Dr. Reid. However, the harm comes when not acknowledging that this bias may exist. However, the fact that there may be a potential for bias certainly does not rise to the level of an ethical obligation to refrain from testifying as an expert witness.

When an individual is injured and hires an attorney to pursue litigation to obtain compensation, most, if not all, personal injury attorneys advise their clients that they will be requesting and obtaining all medical records, not only relating to the traumatic event and its resultant treatment, but records for all pre-existing medical care as well as scholastic and employment records. Plaintiffs are also advised that once litigation begins, defense counsel will also request and obtain this same information, which will be shared with insurance adjusters and defense experts. Thus, patients are acutely aware that their treating doctors' medical records will not be private.

Finally, Dr. Reid argues that the clinician's role and training are not forensic. There is no "training" for most forensic experts. Rather, in most circumstances, as a result of financial constraints placed upon the medical profession by the insurance industry, doctors have found testifying in forensic matters to be an excellent method to supplement their income. Bigler comments that "Neuropsychological providers on average receive only between 50 and 60% of their hourly charges, while forensic services are typically reimbursed fully." [13]

Reid argues that clinicians "often have limited or simplistic views of the legal case and the rules that govern it, making them vulnerable to forensic misunderstanding and, at worst, manipulation by the attorney." First, what is the role of an expert witness? Should an expert witness be "courtroom savvy" or is it really more important that the expert, whether a "forensic expert" or a "clinician" comes into court and provide objective testimony outlining his or her opinions and providing a clear and understandable explanation to support those opinions and conclusions.

The final reason that Reid advances why clinicians should not serve as expert witnesses has to do with the fact that often clinicians do not obtain full histories or review medical records. Silver and McAllister explain:

The forensic evaluation differs in purpose, and thus in practice, from the clinical evaluation. Unusual clinical setting, a doctor-patient relationship exists wherein an individual who is suffering from a disorder comes for help with those problems. It is unusual for the clinician to question (at least in the initial phases of treatment) whether or not the patient actually is experiencing those problems or exaggerating their severity.14

This is certainly a valid criticism but it is not a sufficient basis to conclude that it is inappropriate and a disservice for a doctor to assume the dual role of a treater and expert witness. It is certainly a recognized problem in the legal profession that "clinicians rarely corroborate patient or case information to the same extent as forensic consultants." It is for this reason that on many occasions, plaintiff's attorneys will retain a "forensic" expert because of just this problem. Too often, treating physicians, who have not obtained a full medical history and have not reviewed any of the medical records, are discredited on cross-examination as a result of their failure to review even the emergency room records generated immediately post trauma. However, the solution for this deficiency, is not to bar the clinician from testifying as expert witnesses, but for attorneys to ensure that the clinician has reviewed the appropriate medical, scholastic and employment records and has obtained a full history prior to calling that clinician as an expert witness.

Finally, the last issue that needs to be addressed here is whether or not there truly exists a recognized field of "forensic evaluation" which somehow differs in validity and methodology from the methodology used by a clinician which supersedes and surpasses that of the testimony of a treating doctor. This was the issue, which confronted the court in Baxter v. Temple15

There a unanimous New Hampshire Supreme Court ruled that the trial court committed error in striking the testimony of a neuropsychologist who utilized the Boston Process Approach (BPA) in evaluating a plaintiff.

There the trial court found that plaintiff's neuropsychologist, Dr. Bruno Golden used the BPA in evaluating the plaintiff. The trial court found that Dr. Bruno Golden's approach, while generally accepted in the appropriate scientific literature as a sound clinical approach to evaluating injuries for brain injury, failed to show that it was "generally accepted in the making of a forensic assessment." The trial court found that plaintiff had not shown that the methodology was generally accepted in the appropriate scientific literature as reliable in a legal proceeding. In reaching its conclusion, the trial court focused on plaintiff's failure to demonstrate that the specific battery the entire series of tests viewed as a whole employed by plaintiff's neuropsychologist was or could be tested, or subject to peer review and publication or as a known or potential rate of error.

The New Hampshire Supreme Court, utilizing the standards set forth by the United States Supreme Court in Daubert, rejected the trial court's determination. The Court held that there does not exist a different standard for testing in the forensic setting as opposed to the clinical setting.

Conclusion

One of the greatest weapons that an injured plaintiff has in a traumatic brain injury case is the ability to call as an expert witness his or her treating physicians, neuropsychologists and therapists, not only as treaters but as expert witnesses as well. The defendant, on the other hand, is required to retain "hired guns" who often earn a substantial living testifying on behalf of the insurance and manufacturing industries in this country. The attempt to dissuade clinicians from serving as expert witnesses can only be seen in most cases, as an attempt to limit the cause of justice.

 

Author

Bruce H. Stern, Esq., Stark & Stark, P.C.

 

Footnotes

[1] Baxter v. Temple, 949 A. 2d 167 (NH 2008)

[2] Reid W. H., "Treating Clinicians and Expert Testimony," JRNL. PRAC. PSYCH. And BEHAV.

[3] Moser RS and Barbrack C, "An Urgent Call: Treating Psychologists Are Not Expert Witnesses, Practice Shapers," http://www.practiceshapers.com/psychologists-are-not-expert-witnesses.htm

[4] Galbraith, J.K. "The Affluent Society" New York: Houghton Mifflin (1958).

[5] Greiffenstein, M.F. "Clinical Myths of Forensic Neuropsychology" The Clinical Neuropsychologist, 2008, 1-11 June 2008).

[6] Bigler, E.D. "Can Author Bias Be Determined in Forensic Neuropsychology Research Published in Archives of Clinical Neuropsychology?" Archives of Clinical Neuropsychology 21 (2006) 503-508.

[7] Stigliano by Stigliano v. Connaught, Laboratories, Inc., .140 N.J. 305, 658 A.2d 715 (NJ 1995)

[8] Reid W. H., "Treating Clinicians and Expert Testimony," JRNL. PRAC. PSYCH. And BEHAV.

[9] Moser RS and Barbrack C, "An Urgent Call: Treating Psychologists Are Not Expert Witnesses, Practice Shapers," http://www.practiceshapers.com/psychologists-are-not-expert-witnesses.htm

[10] Reid W. H., "Treating Clinicians and Expert Testimony," JRNL. PRAC. PSYCH. And BEHAV.

[11] Bigler, E.D. "Can Author Bias Be Determined in Forensic Neuropsychology Research Published in Archives of Clinical Neuropsychology?" Archives of Clinical Neuropsychology 21 (2006) 503-508.

[12] Morris, J. "Toxic Smoking Mirrors." Mother Jones, July/August 2008.

[13] Bigler, Id at 506, citing Kanauss, K., Schatz, P. and Puente, A.E. (2005). "Current Trends in the Reimbursement of Professional Neuropsychological Services." Archives of Clinical Neuropscyhology, 20 (3), 341-353.

[14] Silver, J.M. and McAlister, T.W. "Forensic Issues in the Neuropsychiatric Evaluation of a Patient with Mild Traumatic Brain Injury." Neuropsychiatric Practice and Opinion. Vol. 9, NU.1 (winter 1997).

15 Baxter v. Temple, 949 A. 2d 167 (NH 2008)