Tips from a Clinician for Expert Witness Testimony in ABI Cases

By: Bill McKinlay, Director, Case Management Services Ltd, Edinburgh, UK; Associate Editor ‘Brain Injury’

Clinicians who venture into the legal world are entering a foreign country, with its own language, customs, and expectations. It can be an enjoyable challenge to explain your findings and conclusions to intelligent, but non-clinically trained, people and to do so without recourse to jargon, but also without losing subtle distinctions and nuances that should be communicated. As with travel to any foreign country, a little preparation and a decent map will pay dividends.

Route map

The first thing is to be clear about your terms of engagement. The possibilities vary a good deal from jurisdiction to jurisdiction, but broadly you may be instructed either:

  • to provide an impartial expert witness assessment which may form the basis for later testimony in Court; or
  • to give private advice to one of the parties about tactics and the investigation of the case.

In England, for example, (although not in all UK jurisdictions) expert witnesses write their reports “for the Court” and have to give a variety of undertakings. The link below shows the current English Civil Procedure Rules for experts, and the “Annex” provides a PDF with a more detailed account.

While the specific undertakings apply in England (and not the USA, or even Scotland) nevertheless what is set out in the website gives a good summary of key issues to keep in mind: staying within your area of expertise, maintaining impartiality, and declaring potential conflict of interest.

On other occasions, an expert may be retained to give private advice about the likely value of the case; and advice on what experts should be requested to carry out assessments and what specific questions they should be asked to consider. This sort of tactical advice is different from an impartial report which would form the basis for later testimony.

Money

It is important to agree fees at the outset and perhaps to have your own printed ‘Terms of Business’. This is not solely about the money, but also about your impartiality – the agreement to pay you should be independent of your conclusions. It is also worth remembering that any agreement that you will be paid “on settlement” of the case carries the risk of long delay – the case may take years to settle – and it may be better to agree on payment within a month or even within a year of reporting.

Areas to explore and areas to avoid

In ABI, in particular, a number of professions may have been involved in treatment and rehabilitation, and it is therefore particularly important to stick to your own expertise and to indicate its limits – and not to be drawn in to giving advice or expressing opinions which are really the province of another profession.

It almost goes without saying that a thorough and careful examination from the standpoint of the clinician’s professional discipline is required. Consideration has to be given not only to the immediate condition and immediate way forward for the client, but also to:

  • causation, whether on the balance of probability, the ‘index’ injury caused any difficulties and limitations which are found; and
  • prognosis – including how that may be modified by further rehabilitation and measures of support.

In ABI cases, it may not be enough to examine only patient or client. To the extent that the client’s own account and opinion is involved in the assessment, remember that lack of insight or denial (see e.g. 1) may be at work. The opinion of a ‘significant other’ – relative, partner, or friend – may be invaluable, and ideally they will be interviewed separately (of course with the client’s permission).

Preparation

Records are important! It is worth trying to specify those records that you want and, if it is possible, to have them in electronic form. ABI cases will often have had extensive treatment and rehabilitation. Records can end up being delivered by the carton rather than the file, presenting not only the logistic problems of wading through all of this information but also of storage.

The importance of the records should be obvious, but reaching conclusions in the absence of proper records is a common reason for reports being wrong and experts made to look foolish.

  • One cannot assume the injury was severe because long coma and PTA are reported by the client. I remember such a case where very severe injury was claimed on this basis, and a ‘disabled lifestyle’ had been adopted. When I obtained the records (and the client had been injured far from home) – they showed GCS 15 within hours of admission and that he discharged himself a day or two after injury to travel home independently.
  • One cannot necessarily assume, even after a severe injury, that all of the difficulties found are due to it. One has to check the position as regards the previous health and adjustment of the individual.

You are not alone

It is important to remember that there will be several experts, for example:

  • Neurosurgeon/Neurologist
  • Physiatrist/rehabilitation physician
  • Neuropsychologist/Clinical Psychologist/Psychiatrist
  • Physical Therapist (Physiotherapist)/Occupational Therapist/Speech & Language Therapist
  • Employment expert – who will consider the jobs available in the travel-to-work-area (TTWA), the competition, and which jobs would effectively be ruled out by factors such as poorly-controlled epilepsy.
  • Assistive technology expert – who will consider equipment, such as ‘Gaze Direction Tracking’ devices, for communication and environmental control.
  • Care expert – who will consider how in practice the client’s care needs may be met.

It is plainly important for clinicians to flag up care needs, and if they are extensive to say so. It is also important to set out the limitations in the client which give rise to these needs – e.g. that the client is physically unable to perform certain tasks, or needs prompting and cueing to do so, or is vulnerable and needs supervision. It is probably best to leave further detail to a ‘care expert’ who knows about the practicalities of hiring care staff. For example, there may be financial ‘penalties’ for short visits and care may be provided more economically if planned so that several activities can be provided in a single visit. Care costs and availability of care staff also vary from place to place. There is no single profession which provides care plans but commonly those with a nursing or occupational therapy background do so. Ideally the person reporting should be experienced not only in planning but also in managing care regimes, so that they are well aware of the detailed practical considerations, and local regulations and requirements, involved.

Hazards

  • An issue often arising with ABI cases is that at assessment one may explore possible support or rehabilitation, and how receptive client and family would be to such help. However, rehabilitation may be expensive and protracted, as can the provision of help in the form of support, clinical case management, and so on. One has to be careful about seeming to hold out a firm prospect of help – as a medico-legal expert you may be in the position to recommend it but that is not necessarily to say that the insurers will be persuaded to bring forward the money anytime soon.
  • Another issue is the limits of confidentiality. A case which comes to court may be reported in the media, and while it is primarily for the lawyer to caution the client about this, clinicians should also be aware. Clinicians should not undertake to maintain confidences unless they are sure this can be done.
  • It has always been a key part of assessment in this field to reach a conclusion about whether symptoms/deficits presented are credible. Various professions have their own ways of considering if symptoms/deficits “line up” with injury severity, clinical history, foci of damage seen on scans etc. “Effort” tests within neuropsychological assessment have been an area of growth and development in recent years. Discussion is outwith the scope of the present article but Boone’s recent book (2) is one of several recent publications and provides good and wide ranging discussion.
  • Increased risk of dementia after brain injury has been suggested and the idea that the injured brain may be less able to resist the effects of ageing and/or dementia has some plausibility. Brooks’ brief editorial (3) sets out the key elements succinctly and notes the very long-term nature of research needed to clarify the issue. Any link between brain injury and dementia in later years remains very hard to specify, and even more so to extrapolate to an individual case – but it is potentially an issue of medico-legal interest.

The way ahead

Recommend rehabilitation if it may help. Neurorehabilitation is sometimes a prolonged process and therefore an expensive one. Access to it varies widely depending on financial circumstances, geographic location, insurance coverage, and so on. However, for many individuals who have sustained brain injury, their lawyers – working with the defender’s insurers – may be able to achieve access to effective rehabilitation, and this is a win-win arrangement, in the interests of both injured person and defender.

 

References

  1. McKinlay WW, Watkiss AJ (1999): Cognitive and behavioural effects of brain injury. In: Rosenthal M et al (Eds) Rehabilitation of the Adult and Child with Traumatic Brain Injury, 3rd Edition. FA Davis Company, Philadelphia.
  2. Boone KB (2007): Assessment of feigned cognitive impairment: a neuropsychological perspective. Guilford Press, New York.
  3. Brooks N (2003): Mental deterioration late after head injury – does it happen? Journal of Neurology Neurosurgery and Psychiatry, 74, 1014.