The Expert Witness Self-Examined

Having made the career decision to practice as far as possible in the public forum, literally, in forensic psychiatry, I found myself confronted with the most complex and delicate issues of morality, of the ethics and of philosophy of medicine. My textbooks warned me that I was entering into alien territory, where psychiatry is handmaiden to the law. Something inside of me screamed that I hadn't come this far to be a handmaiden.

The reception I met was ambivalent, perhaps more closely related to the way men conducted business than the way women did. When perceived to be useful I was wooed in the most flattering of tones, but when my advice was inimical to the issue at hand I was to be subjected to insults in an attempt to rile me and to discredit me by causing me to lose my cool.

I asked myself "What is going on here? "What is going on here" is as we all know, the adversary system, a variant of hand to hand combat of selected gladiators, within the most rigidly formal and structured conditions. My words were their weapons.

The need for rationalisation in the Worker's Compensation jurisdiction was desperate. Premiums in at least two states had reached an unacceptable portion of payroll and had been exceeded by payouts. Insurers were refusing to carry risks and the single state insurer, the GIO was being subsidised by taxpayers. It was nearly impossible not to get nuisance value for a claim, and theoretically sound medicine had little place.

I thought it would involve the administration of justice, where someone tortiously liable or responsible for having caused the injury of another would be caused to pay for it. As far as I was concerned, justice should be done, and should appear to be done. As it turned out, it was a layman's view, because I was assured that the administration of law had little to do with justice. The idea, I believed, was to show the judge, jury or tribunal what was wrong with the claimant, that is, your diagnosis, and to show them how you got to it and why yours was the best formulation. However this idealised situation did not appear in pure form as economic considerations appeared to intrude. At around fifteen thousand dollars to run a medico legal case, a settlement of something less than that might be a stop-loss situation. While it is rarely discussed, it is commonly recognised by litigants that just having made a claim is sufficient to attract a sum of money. The expert's truth claims are mostly overridden by pragmatic considerations. I found this very hard to get used to. I longed to go into the court and to persuade, however I was rarely "needed" but I eventually realised that my reports were put to uses different to those which I had naively anticipated.

The next question concerned my role. I canvassed legal colleagues. They saw the expert as someone who was there to form an "opinion" and to answer questions, no more, no less, to be used entirely for their purposes, to be preferably predictable, even to the point of accepting advice as to what his legitimate field of inquiry was. A violin on which they could play their tune. The expert was indispensable.

I canvassed medical colleagues. These split into two camps. One group had apparently adopted the values of the dominant culture, law, and believed that their role was to run the best possible argument for whichever side requested their services, without actually telling an untruth. The other group saw themselves giving the "most impartial" opinion they could give straight down the middle, no matter who called them. Each group contained people called by either side as well as people whose powers of observation and interpretation were predictably altered by their personal political, moral and ethical beliefs.

I found myself not doing anything like I'd expected, I was not persuading juries of the correctness of my position, nor was I educating judges on the intricacies of the anatomy of the nervous system, nor of psycho dynamics, nor the latest developments in the conceptualisation of panic disorder.

Lawyers who had called me in the only jury case in which I had ever been involved were more interested in how the jury was responding to my attire, that is, whether it liked me or not. I soon discovered that the reason for their concern was enshrined in Australian Law, specifically in a case called Adamcik v the Government Transport Commissioner which went to the High Court before Justice Windeyer in 1964. Briefly, Adamcik had tortiously sustained injuries in the course of his occupation and a few weeks after his discharge from hospital had developed leukaemia and died. His widow sued. The mainstream of medical evidence was that leukaemia was a disease of the white blood cells, in which they reproduced themselves to an abnormal degree, and its origin was in the chromosomes of the affected cells. Nonetheless, a general practitioner of some age and dignity was found who was of the opinion that the physical injuries sustained together with the mental stress accompanying them, had caused the leukaemia. It was apparent that his opinion was not supported by scientific or statistical information. He was the only medical practitioner known to hold that opinion. The jury accepted his evidence and the widow won her right to lifelong compensation. The Government Transport Commissioner appealed to the High Court. The learned judge seemed to pass up an opportunity to define what constituted expert evidence, and to differentiate it legally from those offerings which were no more than the opinions of experts. Rather, he reaffirmed the right of the jury to choose the expert it preferred, and my legal colleagues informed me that this was correct and what juries do and that I could be well advised to forget my intellectual pretentious and concentrate on charm.

Perceptions Of The Litigation Process

It seems to me that in any medico legal conflict there are THREE perceptions of a case operating. Let us examine, for example, a case in which there is personal injury litigation.

First, The Claimant's View

The claimant, of course, knows that he has a claim afoot, and that some of his doctors think it will net him some money. He might even have an idea how much. He holds a belief that there is something wrong with him. He might find that he has less capacity to work, that he hurts here and there, that his psoriasis seems worse and that he has developed kidney trouble.

The claimant is rarely so sophisticated as to understand the pathology that afflicts him; he would have even less idea of its origins; and even more rarely than that would he have insight into his own psychopathology specifically the reasons for his behaviour and experience. Moreover, if he has any, he is not likely to let on. He, like anyone of us will select from the information he has been getting and he will believe those things that it is in his perceived best interests to believe.

The claimant is likely to be the worst person to assess his problems objectively for the purposes of the courtroom, as his judgement is the most influenced by his needs and desires.

The Expert's View

Another view of the case is that of the expert. Ideally the expert is capable of finding any lesion, a lesion being a site of trauma or pathology, of identifying psychopathology and of making a diagnosis. The word diagnosis comes from two Greek words, dia meaning through and gnostos, to know or to see. The process of making a diagnosis involves penetration through circumstances, through social context and through illness behaviour to the pathology or lesion in the body of the patient. A diagnosis is crucial to the process, of forming an opinion because in order to know the cause of a symptom, one must know its origin. A symptom might be the result of an injury or illness, or it might be a function of mind, psychogenic in origin, a hysterical conversion, primarily ideogenic, mimicking or suggesting an injury. In the case of the latter, symptoms, while suggesting injury, cannot be accounted for by any pathophysiological mechanism.

I imagined that, in the interests of truth and justice, it would be of primary importance, both for the purposes of treatment and the law, to differentiate the injured person from the person who believed or feared himself to be injured. It was a rude shock to find that some jurisdictions considered this to be an irrelevant distinction and I wondered if this was the reason the system of compensation in this state was in crisis and if other countries were doing this job any better.

Making a diagnosis is something only a doctor can do. Anyone can guess, anyone can suspect that a symptom and a trauma are related, but to know this and to distinguish the symptom of trauma from its psychogenic copy, you do need to be a doctor. Being a doctor is a minimum requirement but is little guarantee against making a mistake. Hysteria is a great mimic: even a simple and readily recognised condition such as pregnancy has its psychogenic copy, the hysterical pseudo cyesis, and it would be a most unwise court that would accept from a layman that a pregnancy had existed where no expert had made an examination of the patient or her body fluids.

The Legal View Of The Case

The third view operating is the legal view of the case, a view only tangentially related to those of the claimant and the expert. The law might be interested only in some of the difficulties protested by the client, and in only some of his medical problems as described by the expert. The topic at issue might be of legal interest only, for example whether or not the client's heart attack was suffered in the course of the normal duties that he had contracted to do, or was some abnormal demand put on him through the misfortune or negligence of his employer. The expert is likely to have little comprehension of the legal issues.

Rival Truth Claims

Knowledge is rarely, if ever, value free. Rival coteries of experts act as theoreticians in the service of vested interests. Rivalry is translated into theoretical terms. In a fair discourse, the best explanation is the one which is most convincing. The adversary system is not ideal for discourse, for reasons I have already suggested.

Normative and Evaluative Judgements

The expert makes two kinds of judgements, normative, i.e. descriptive, and evaluative. The former have some claim to scientific validity, the latter are socially constructed and represent attempts to define an ideal.

An example of a normative judgement is when one says that an organism is anaemic. Anaemia is detectable by scientific instruments which measure haemoglobin to great degrees of accuracy.

In making an evaluative judgement, one might be trying to opine on how serious is that anaemic state in the individual in question, what its origins were, and how long it will take to overcome and how it might have been caused..

Opinion Variability

Sometimes such a variety of expert opinion comes in that the claimant is unrecognisable from his documents. Such files remind me of the story of the blind men around an elephant. One cried, "The elephant is like a wall!" as he stroked its side. The next declared that an elephant was like a pipe, as he explored its trunk. The third insisted that an elephant was like a tree as he clung to its leg, and the fourth, swinging on its tail could hold no other view than that the elephant was a kind of rope. It remains to brush in a few strokes, and the elephant is immediately recognised by those who have observed its parts..

Some cases attract a large number of diagnoses with each specialist tending to account for some symptoms within his area of expertise, while claiming therapeutic jurisdiction over them.

Roland Barthes, the philosopher, said that you know who someone is by the way he classifies things. A scientific community consists of people who classify things the same way, who share a paradigm, an organising principal which in turn governs their perception. Within medicine, there are neurologists, orthopods, physicians and psychiatrists, each of whom understands one or more languages of the body, and who can explain, utilising the accepted theories of Western medicine how certain pathology generates certain symptoms. "I wouldn't have seen it if I hadn't believed it," is attributed to a geologist but underlines the need for an understanding of the languages of the body for the purposes of interpreting its significance, indeed for even recognising that such codes exist.

The Need For Standardisation Of Procedures

There seems to be no standard demanded by courts in medical reporting, even though the process of making a diagnosis is taught in medical schools. There are standards in engineering reports, in economic evaluations, in accounting procedures and in design specifications. Some professional groups seem to have escaped such discipline.

Indeed in the medico legal field this lack of discipline is encouraged because it can be exploited. I was interested to see a judge some years ago, while arbitrating on a rental dispute between a chamber of barristers and their landlord, send the conflicted experts home to decide which were and which were not valid considerations to be taken into account when fair rent was to be computed. The judge seemed to me to have got to the heart of the matter. It is the information that is taken into the discourse that determines the result of the discourse.

The argument is simply whether it is to be taken into account, at what weight, and if not, why not?

Theory Of Evaluation

This brings me to the theoretical basis of what an expert does and what the lawyers do when they cross examine experts.

The sources of variance in expert opinion emerge from the elements which comprise that opinion. For some historical reason, I suspect stemming from the regard for the medical profession in a Colonial society, doctors are rarely asked to explain how their opinions were reached, and why they differ from those of their colleagues. The very use of the word, 'opinion', is fraught with ambivalence: it can be used to discredit the normative aspects of the examination, and to deny that there could and should be diagnostic concordance on certain elements of any case.

Experts are discouraged from criticising their colleagues, but surely their colleagues productions are fair game. Cynics argue that each doctor has expert status, so isn’t everything a matter of opinion including the decision about what should be taken into consideration?

The elements that comprise an expert opinion are

Information, Observation, Interpretation, Occasion and Diagnosis

The first three should allow one to reach a diagnosis--the normative element-- and ultimately an OPINION can then be formed on the issue of interest to the court.

INFORMATION concerns the mode of onset of the disorder, its response to treatment, and the course it has run. This category of data may include pathological tests, or x- rays, and it can include reports of friends or relatives. It can include histories of others, but not their diagnoses or opinions.

OBSERVATION is the finding of signs, physical ones or in the case of a psychiatrist, the emotional and behavioural concomitants of illness. A surgeon might seek different signs from a physician, and a psychiatrist might observe subtleties of affect or mood that lack intelligibility to other specialists. Observation variance, then is a function of the observer, rather than the patient as observers of different specialisations are trained to seek different signs..

INTERPRETATION refers to the paradigm within which one is operating, the theoretical underpinning of the significance that you are attributing to the information available to you. Interpretation is a legitimate source of diagnostic variance, but there seems to be a great deal of sense in having the cross examiner demanding to know why we interpreted a given phenomenon the way we did, either according to a medical or injury model when we believe the problem to be able to be explained that way, or according to a psychosocial model in cases where the postulated injury cannot account for excessive or apparently unconnected symptomatology or there is an illness which has taken an unfamiliar course outside a broadly expected or normal range of duration..

A cross examiner should develop familiarity with this area.

OCCASION refers to the time of the examination, enabling you to hold in mind the natural history of the suspected illness or injury. Symptoms and signs and illness behaviour can and do change in the course of several days or years and can legitimately be expected to do so.

DIAGNOSIS refers to nomenclature of disease or nosology within an international and mutually accepted and defined system of Western medicine. Other systems of medicine are becoming trendy, particularly Chinese, chiropractic and homoeopathic, and their plausibility can appeal.

Sources Of Variance In Expert Opinion

The sources of variance in diagnosis and opinion should be documented and available for analysis.

When a lawyer cross examines, he or she introduces the hypothetical case, trying to suggest other information that has not been taken into account by the medical examiner, information which, on coming to light might alter the entire formulation of the case. Such a hypothetical suggestion could be in the category of different information, an extra observation made by another person, a test or an x-ray, a suggested different mode of interpretation of a symptom or sign or a suggestion that interpretation in accordance with another paradigm might be more appropriate than the one apparently in use.

When a lawyer cross examines a doctor in the witness box, and asks hypothetical questions, the process then is one of introducing information variance, observation variance or interpretation variance.

If the report has been prepared so that the various elements have been kept separate, it becomes easier to answer hypothetical questions.

A DIAGNOSIS, as far as possible should be made within a known diagnostic system. The danger of not so doing can be that disease is perceived where there are only symptoms, and symptoms do not necessarily signal disease. Feeling in the body might signal fatigue, depression, anxiety, they might be conversions or manifestations of hypochondriasis, or psychogenic pain. Indeed if concordance in diagnosis cannot be reached, there is an increase in likelihood that the patient has an psychogenic disorder, either hysterical or malingered.

A Role For An Expert

I see my role as that of a portrait painter, knowing that the word picture I paint constitutes the documentation on the basis of which an agreement can be reached, a purpose akin to that in which ambassadors showed miniatures of princesses in search of a bridegroom. One would be rapidly discredited if one's picture either engendered unreal expectations or on the other hand did not do justice to the subject,, and basic trust is indispensable. Many other people see the subject, and report and these sketches constitute the documentation on which decisions are made. Often it is possible to do a report which synthesises the others, to sketch in the elephant. Other times it is necessary to introduce a different mode of interpretation.

A psychiatrist's mode of interpretation is a broader view of the patient's difficulties, one which takes into account both the body and the mind. A simple injury or medical model of illness simply cannot account for many phenomena. .More adversarial experts might start at different positions but until the pictures being drawn by both sides have reasonable congruence, no settlement can be achieved. It is very hard for an independent expert to remain unbiased and not to interpret in favour of the referring agent, especially when one's continuing income is dependent on such work. It must be even harder, as a general practitioner to give the patient what he needs for his health, not what he wants for his case.

Link to the Book at Federation Press

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