Thursday, March 29, 2012

Goudge Inquiry and Expert Witnesses

The paper, The Goudge Inquiry and the role of the medical expert witnesses" by Hon. Frank Iacobucci BComm LLD and Graeme Hamilton MA JD, in the Canadian Medical Association Journal Jan 12, 2010, is really a good read.  At first glance it looks like the judges who were caught making very bad judgements based on the fashionable in it's day opinion of celebrity pediatric forensic pathologist Dr. Charles Smith were just trying to pass the blame the way beaurocrats always do.  Obviously the judgements were foul and the judges don't want to be accountable. Better to blame the doctor.  In a pinch, everyone blames the doctor these day.  Doctor's take an oath to do no harm, are ethical and moral to a fault and invariably get caught holding the bed pan.
However, the article is far far more than this.  It points out the difference between the European model of judisprudence and the American and Canadian one. There judges study science whereas here lawyers are supposed to.  It follows that an expert witness would be encouraged to make their statements in a way which the lowest common denominator of general knowledge, the judge in this case, acts in a sense like 'lay person' or a general 'jury', not necessarily one of our peers.  I couldn't help wondering how Einstein or several of my most erudite colleagues, the true geniuses of medicine might respond and remembered the story about the Japanese bike factory.
Everyone knows that the instructions that came from the finest Japanese bike factories were terribly poor so someone was sent to ask why that was. It turned out that the person who wrote the instructions was useless making bikes so was given the task of explaining them.  That's the truth throughout science and cutting edge intervention. I remember reading Kuhn's Scientific Revolutions when it first came out and struggling desperately to understand his point on paradigmatic shift in scientific fads.  How could a man today who understood the idea that man's behaviour caused global warming was a crock explain this position and the experiments that prooved it to anyone today. It's like suggesting blacks shouldn't be slaves. Easy today when one is a President. But a truly hard sell scientifically when black Africans were selling their lesser cousins to great hymn writing white ship's captains.
The paper actually humbly asks for doctors to help judges.  So what first comes across as typical beaurocratic arrogance of the trumped up arts students protected by sheriffs with guns sitting on high chairs turns out to be a paper of rather impressive wisdom.  Damn, if these two gents don't Solomon me with their words.
Despite the fact that I'm naturally as predjudiced against lawyers as I am against proctologists I couldn't help but think this was a quite a brilliant bit of writing.  The Goudge Inquiry was a very good thing in deed.
The reason I looked askance at the paper midway was that it laid out reasons for the courts to 'control experts'.  When one remembers that we are the experts the thought that some scurvy taiser weilding demigod should be talking 'control' is likely to raise the shackles.  Yet the arguments are pretty solid when one considers a colleague who is a particular ass and how these rules would apply to him as well as oneself. Not such bad ideas, in that context.
The first reason is that 'impressive credentials' can sway juries, judges and even lawyers.  Secondly the "justice system's pursuit of truth is not absolute, it is attenuated where necessary to ensure fairness or preserve the integrity of the administration of justice.  Third, courts aren't particularly qualified to judge the reliability of expert testimony.  "Lawyers and judges often lack even basic scientific literacy."
I was in a court where a psychologist report was the most ignorant and biased report I'd encountered in my life.  I was asked to respond to this ass wipe that no clinician of any self worth would have put forward.  The report I responded to excluded information from all the senior most informed specialists and presented his own opinions of matters far outside his level of knowledge and expertise based on his incredible stupidity regarding psychiatric diagnosis in general and particular.  Arriving at his own diagnosis he then went on to recommend treatment which has no validity for the condition which he claimed the patient had at variance with the leading authorities on the matter in the psychiatric community.  Finally he had the effrontery to recommend an impossibly costly treatment given by psychologists when the patient had seen and been treated successfully by a half dozen of the finest psychiatrists.  The devilry in the court room was sulphuric but the judge was utterly ignorant apparently of what a buffoon the psychologist was making him out to be.  The judge was as ignorant of the Masterson as the psychologist was but the psychologists mockery of the legal system was beyond the capacity of the judge to see, his being utterly ignorant of psychology and psychiatry as he couldn't see that he was being lead down the proverbial garden path by a man who is an embarrassment to science yet holds a position in which his damages to clients are akin to the poor judgements surrounding the cases of Dr. Charles Smith.  In this case Dr. Charles Smith remains in place till the future Goudge Enquiry investigates the expert witness of psychologists like the one I encountered.
Yet in contrast, Iaccobucci and Hamilton acknowledge their own limitations and quite frankly I'm left admiring judges for having to make such hard decisions in such a public manner when a clinician such as myself would rather just use occam's razor to cut through R. D. Laings knots.  Iacobucci and Hamilton win hands down with utterly reasonable arguments that derail all my passionate responses to their desire to control the likes of me.  Were they around when that silly stupid deceitful like smegma of a psychologist was pulling his pants down and showing his bum to the judge I'd have been more than pleased.  Instead I was left apologising to this upstart immoral mental midget for questioning his parentage.
It is the duty of the court to decide matters of 'fact' .   Except for that one occasion I have always entered courts as an expert witness realizing that I have only one 'perspective' like that of a camera angle in a film and I'm really interest to hear what the judge finds given that he is in a position to look at clips from all the different camera angles.

The judge meanwhile is ignorant of a few centuries of scientific debate and how that psychologist wanted to take us all back to the sun revolving around him as the centre of the universe denying all manner of research on diagnosis , evidence based research and quite willing to accept in court a grade student science project than the latest national and international research. Meanwhile no one is about to the tell the emperor he has no clothes and that the psychologists is not his friend.  It's the judge who actually has a different perspective from the expert witness and it's not for the expert witness to speak to the ultimate decision of the court but rather to inform the court as best as possible of the material of his or her specialtiy and sub speciality.
The higher the IQ of the expert, the closer and more radical the scientific evidence is, the greater the researcher the expert is, all of these will affect the ability of the expert to convey to a layman like the judge what's really important in the research area.  It's no wonder that we say the top of the class doctors make the best researcher whereas the bottom of the class doctors make the most money.  The average doctor is closer to the average layperson.  They commune and grok each other whereas the genius immunologist is going to have serious difficulties simplifying a field thats advancing daily to a man who may or may not wear a wig and a jury that may know nothing more about juries than that they might not have been intelligent enough to find a way to get out of jury duty.
Watching the OJ trial at length I was quite struck that no one in the whole LA Police Department or the Judiciary of the day understood that DNA evidence was not like a 'fingerprint.  It took the expert witness days to get anyone in that court room to grasp that 75% of a fruit fly DNA is the same as OJ's.  What was horrifying and frightening for me watching the discussion of the glove by the detectives was that obviously 'all' the cases that had involved the DNA before OJ  really deserved to be re tried regardless of the cost. Prior to the OJ trial it seemed obvious that no one in law enforcement had a clue as to the genius and true value of DNA and it's appropriate use.  What is so exciting in Canada is the Canadian Judiciary had the Gouge Inquiry and Dr. Smith's cases were reviewed. Thanks to that we're all able to learn for the benefit of those who come next.
The final recommendations for expert witnesses were refreshing and informative
- express opinions only on matters within their expertise - I am credentialled and certified as a family physician, a hypnotist, a psychiatrist, have special interest in community medicine and public health, am a psychotherapist and psychopharmacologist, an addiction medicine subspecialist, a wilderness medicine expert , minister of divinity, blue water cruising ships captain and solo offshore navigator,  motorcyclist, ball room dancer, folk guitarist,  big game and bird hunter, a lecturer and a few other things . I'm known locally, provincially, nationally and internationally with the degrees and awards I've received from all these levels of jurisdiction. But despite my apparent expertise I know diddly squat about flying planes, sitting all day as a judge and not laughing or farting loudly, how to grow genetically engineered wheat, whether the F35 is a better plane that the Chinese knock off, how women do that thing with rolling their eyes, or whether the Canucks are a better hockey team than the New York Yankees are a ball team.  If I am being asked as an expert witness about some aspect of my clinical practice I probably would help everyone involved if I limitted my comments to the topic at hand despite my desire to wax poetic about the superiority of  Harley Davidson cruisers over the Yamaha cruisers.
- expert witness should be explicit about facts, reasoning underlying and relate this to relevant literature - in reports expecially all one is being asked to do is remember that english 101 course and how to write a paper. It's not really that different from a 'review article' in a scientific journal with less emphasis on literature search and academic fashon and more on the actual experience of the expert witness and why he sees what he does. I often find myself talking to lawyers like I would to colleagues in other specialities. The lawyers I commonly work with these days are highly informed about the specifics of the debate in scientific terms because they have their own money resting on the outcome.  When my patients get hit in the head and go from being professors of mathematics to being unable to add and subtract I think that the bullet that hit them in the head was associated with the change in function.  I can't say for sure as someone might argue invisible aliens probed my patient at just that moment by an act of God but based on my 36 other cases like this I'm pretty sure it was the bullet wound had a primary relationship.
-expert witnesses avoided using scientific jargon - I had to laugh at this though.  I hated learning scientific language too but when I'd learned it I knew there was no 'ordinary words ' for a whole lot of scienfic reasoning and ideas.  The utter and grossest of failures of the legal profession to develop a 'plain english' set of laws and legalese that has any real reference to the world  reflects how utterly impossible such a task is for lawyers and judges. Knowing the overwhelming limitations mentally that this collection of folk have every expert in their field would realize that they are talking to an imbecile, speak very slowly and don't use words bigger than 'marmalade'.  Reading any of the legal documents that are associated with a new Mac or PC program gives everyone some idea of the inability utter inability of the legal profession to be 'timely' and 'relevant' yet they want us to talk to them like,well, like we talk to 'students' and 'teen agers'.   Naturally the greatest researchers and best of the best won't be 'communicators' as such.
The greatest neurosurgeon in Canada who was called in on the Kennedy shooting let me assist him in neurosurgery for a few months.  He was one of the greatest minds I've ever been priviledged to be near but he rarely spoke, was almost autistic, definitely would have been called aspergers, and yet was the greatest neurosurgeon in Canada.  I get to be an expert witness because I'm not as good as he is.  If you can't do, you teach.  If I'm not working in my office and I'm off at the courts I'm actually in 'teacher' mode.  I'm relaying my information like the Japanese bike explainer. I'm not doing what I'm best at which is the field I'm expert in.
I"m a clinician though and have devoted my life to convincing people to do what they don't wnat to do.  "You have to stop drinking, Mr. Jones, the blood you're throwing up with the booze is because the booze is killing your stomach lining."  "Doctor, I just don't get it."  "Mr. Jones, your drinking is killing you.  "I don't think so Doc, my dying is ruining my drinking".  But rather than consider another routine daily discussion from my office I'm used to discussing medicine with people
The judges I know save one or two have been really really smart and though they can act really stupid I realized long ago that they want things explained simply not as much for themselves as for the other people in the court. Chretien was one of the smartest and most clever men in Canadian history. I am not commenting on his politics when I say this. What I'm saying is that I don't of anyone who pulled off acting stupid better than he did. Apparently Honest Abe Lincoln had a similar way of communicating. An Indian saint said, "he is a fool who cannot conceal his wisdom'.  Experts aren't being called in to 'show off'.  They're there to help the courts.  Judges have been incredibly helpful by asking me to clarify and simply things that I can to the benefit to all involved. I've been insensitive to people in the court by not speaking simply and clearly when this was possible.
Expert witness identified any opinion that is qualified or where there was controversy. - I didn't get this until I realized again that lawyers and judges and most lay people don't grasp that science is about 'hypothesis' and everything we know in science today we expect to be overturned by science tomorrow.  In contrast the law like religion tends to lack the utmost humility that governs all science.  Arts students have to run about being 'humble' because the world of money and power and politics is about being 'best' and competing and American Idol.  Science is in contrast for the humble.  When I read a legal judgement today I can often find the same discussion in my favourte text of Plato or for that matter in the Old Testament.  There's nothing new in human behaviour. Caligula made Jerry Springer look like a choir boy. In science though no one before walked on the moon or had a cell phone or saw what the brain looked like under  a electron microscope.  The Chinese had fire crackers when Confuscious was laying down his beurocratic laws but there wasn't any hydrogen or neutron bombs back then.  What the arts are always asking scientists to do is 'slow down', let us on your space ship. And we really should respect them because as yet no scientist has given us all the benefit that the latest age old poem by a new young rhymer gives us.  Everything is qualified in science.  We know that judges decisions are made based on the amount of flatulance they're holding on any particular day.  The decisons of the stock exchange are affected by sunny days or rainy days. If a lawyer has hemorrhoids he's not going to be top of his game on a day when the judges dog got put down.  Science is controversy.  75% of what is published in the very best medical journals in the world is proven wrong in less than one year.
Just consider 'global warming'. I'm all in favour of it being in Canada, without grandchildren and wanting a few more days of summer every year.  Luddites abound.  As for psychiatry we have to deal with scientologists and psychologists who like to make judges look stupid and go out of their way to destroy the respect the court works so hard to achieve.  There are those in psychiatry who believe everything is fate and genetics while others like myself say the 'dingo et the baby' if I see a dingo running off with a baby' whereas my academic colleague insists dinghos don't eat babies becuae the dinghos in his experiment didn't eat the babies offered up by mothers of scientologists.
The trouble with this for clinicians is that by the time we actually recommend a treatment we have ruled out upwards of 100s of possibilities.  The teaching on the decision making of experts in an attempt to get junior doctors up to speed faster is fascinating research.  To date the importance of 'pattern recognition' is profound but he courts and beaurocracies in general are afraid of 'pattern recognition'  The symphony conductor has a very hard time explaining why he knew the 3 rd violin was out of tune especially if the judge is tone deaf .
Yet that's what the big boys want.  It's really kind of them to say too.  Because if we really want to help our patients then commonly we have to help the judge to do just that. Also the courts are there to help us all and do.  And in Canada the judges are collectively a pretty good sort. Canadians are blessed to be in one of the greatest countries in the world and part of what has gone into that has been the tendency of our courts to make relatively good decisions in the very toughest of times.
I do work for insurance companies and have no difficulty appreciating their need for the courts. The average person doesn't know how bizzare and calculating the malingerers and sociopaths and psychopaths are .  All manner of people self inflict wounds and want the insurance companies to pay them for this.  The courts are there and good judges are there to stop this criminal behaviour.  Equally insurance companies love to take money and hate to pay it out and were it not for lawyers and judges some of these mega wealthy corporations would have denied patients the little left to them after a horrendous accident.
I don't have a better answer to the courts. I liked working with elected judges and I think it will be more interesting when scientific basics are required study for all lawyers and judges.  With the increasing immigration into Canada of people from scientifically advanced countries there's going to be increasing demand on the education system to be more relevant and practical. As much as I love poetry it doesn't pay the heating bill and untill I can convince all Canadians to drive SUVs to lower our collective heating bill I'm going to have to depend on the practical applications of science to improve my life at the lower levels and more universal levels of Maslow hierarchy.  Canada can't afford to carry so many ignorant people as a consequence of the failing of education system and beaurocracy to get out of the middle ages and come into the 19th century.
At the same time doctors who are by default expert witnesses can't afford not to read the wisdom of the likes of Frank Iacobucci and Graeme Hamilton.  I am very thankful these two fine gentleman have taken the time to help doctors.

Expert witneses

1 comment:

Graphologyindia said...

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Expert witness