Medical expert witness in court

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Medical expert witness in court France
sca M Brett MD., FRCPath., FFPath., Msc (FM)
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• Background
• Key element of the law of evidence is that
• Witnesses allowed to give relevant and factual
  evidence
• (not allowed to express opinion)
• Ultimate issue - criminal or civil liability
  is a matter for the
• court to decide

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• Majority of criminal trials in Ireland
  (gt200,000 p/a) are held in the District Court by
  a judge sitting alone, who is both a finder of
  fact and determiner of liability
• More serious crimes (gt2,000 p/a) Circuit
  Criminal Court with judge and jury.
• Here jury (directed by judge as to law) is the
  finder of fact and the judge determines liability
• Major criminal cases (gt100 p/a) (murder and
  rape) are tried in Central Criminal Court with
  judge and jury

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Unlikely that either the Judge or Jury in serious
cases will possess the expertise necessary to
determine complex issue such as DNA evidence
etc. HENCE Expert witnesses and expert
evidence form an important part of criminal and
civil trials
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It is a long established rule of our law of
evidence that with certain exceptions, a witness
may not express an opinion as to the fact in
issue.. It is for the tribunal of fact judge
or jury as the case may be to draw inferences
of fact, form opinions, and come to conclusions
AG (Ruddy) v Kenny (1960) 941. L.T.R.
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Expert witness is the exception an opinion
can be given by a witness who has expertise in
an area that is relevant to the issue at hand
It must be shown that the expert witness is
necessary and relevant That the witness is a
qualified expert. The main role and function
of the expert is to furnish the judge or jury
with the necessary scientific criteria for
testing the accuracy of their conclusions, so as
to enable the judge or jury to form their own
independent judgement by the application of
these criteria to facts provided in evidence.
Per Lord President Cooper in Davie v Edinburg
Magistrates 1953 SLT 54
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R v Turner 1975 1 QB 834 If on the proven
facts a judge or jury can form their own
conclusions without help, then the opinion of an
expert is unnecessary. In such a case, if it is
given dressed up in scientific jargon, it may
make the judgement more difficult. The fact that
an expert witness has impressive scientific
qualifications does not by that fact alone
make his opinion of matters of human nature and
behaviour within the realms of normality any more
helpful than that of the jurors themselves but
there is a danger that they may think it
does Lawton L.J.
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• In Ireland no judicial or leglislative guidance
  on the role of experts
• The Law Reform Commission (December 2008)
• recommended a formal guidance code for expert
  witnesses, based on principles laid down
• in
• National Justice
• Compania Naviera SA V Prudential Life assurance
  Co Ltd 1995
• (Ikarian Reefer)

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Expert evidence presented to the Court should .
.. 1. Be the independent product of the expert
uninfluenced as to the form or content of
legislation 2. Provide an independent unbiased
assistance. 3. State the facts and assumptions
and not omit material facts that could detract
from concluded opinion. 4. Make it clear when a
question or issues falls outside area of
expertise 5. Be properly researched and if not
state that 6. Communicate to the other side any
change of view that occurs after exchange of
reports 7. Provide the evidence such as
photographs etc to the opposite side at the same
time as exchange of reports
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• Case presentation
• 18 mth old boy admitted to Neurosurgical Unit
• Fall from second floor window (no eye witnesses)
• Single parent having shower at the time.
• O/A GCS 3. Cerebral oedema . Subdural and
  retinal hemorrhages
• T/f to ICU and RIP 2 days later

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• Cause of death
• 1. Severe cerebral contusional injury with
  tentorial and tonsillar
• herniation and resultant hypoxic brain damage.
• Retinal and subdural haemorrhage
• 3. Extensive fracturing of the vault and base of
  the skull.
• Are the injuries consistent with a fall from a
  second floor window ?????
• OR???

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Head injury in children complex and frequently
raises the question of abuse Main question Is
the injury consistent with the story? The
clinical history is perhaps the single most
important clinical tool available to clinicians
and to reject the carers version of events in
favour of another requires the highest possible
level of medical evidence. After all, the Doctor
is effectively accusing the carer of lying R v
Lorraine Harris, Raymond Charles Rock, Alan
Barry, Joseph Cherry, MichaelIan Foulder. Supreme
Court of Judicature Court of Appeal (Criminal
Division). July 2005
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Picture of child abuse complex but 3 factors are
thought to lead to increased risk Child
factors behavioural problems Parental factors
mental health problems, alcohol or drug
addiction Socio-situational - single parent, new
partner, unemplyoment
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What is Shaken Baby Syndrome ??? Accepted
definition depends on a triad of encephalopathy,
subdural and retinal haemorrhages The phrase
Shaken Baby Syndrome evokes a powerful image
of abuse, in which the carer shakes the child
sufficiently to cause whiplash forces resulting
in subdural and retinal bleeding
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Shaken Baby Syndrome is an area where the
opportunity for scientific experimentation and
controlled trials do not exist but in which much
rests on the interpretation of medical evidence
In short we dont know how much force is
necessary to injure an infants
brain Unfortunately people have been convicted
of murder in cases of suspected SBS
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• R v Sally Clarke
• First son Christopher was found dead in his cot
  at 11 weeks on Dec 13th 1996
• Second son Harry was found dead on January 26th
  1998 at 8 weeks.
• On both occasions she was alone at home with the
  babies and there was evidence of trauma which
  could have related to attempts at resucitation.
• She and her husband both arrested on Feb 23 1998
  on suspicion of murder
• In 1999 she was convicted of killing her baby
  sons Christopher and Harry
• Appealed and appeal dismissed 2000
• Referred back to Court of Appeal by the Criminal
  Cases Review Commission and convictions were
  overturned on January 2003

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• Two major issues emerged in the Sally Clarke case
• Non disclosure of evidence microbiological
  tests performed on Harrys blood, body tissue and
  CSF were discovered. They were submitted to
  medical experts and interpreted as that death may
  have been due to natural causes
• Expert witness evidence Professor Sir Roy
  Meadows stated at the Sally Clarke trial that
  there was a 1 in 73 million chance of a woman of
  her background having 2 cot death. He likened
  the probability of backing an 80-1 outsider in
  the Grand National 4 times running and winning
  each time.

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• Meadows rose to fame for his 1977 work on
  Munchausen Syndrome by Proxy
• He endorsed the dictum one sudden infant death
  is a tragedy, two is suspicious and three is
  murder until proven otherwise Meadows Law in
  his ABC book of child abuse
• He claimed that there is no evidence that cot
  deaths runs in families but there is plenty of
  evidence that child abuse does
• Meadowss 1 in 73, 000 was rejected by the Royal
  Statistical Society as having no statistical
  basis

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In the recent highly-publicised case of R v.
Sally Clark, a medical expert witness drew on
published studies to obtain a figure for the
frequency of sudden infant death syndrome (SIDS,
or "cot death") in families having some of the
characteristics of the defendant's family. He
went on to square this figure to obtain a value
of 1 in 73 million for the frequency of two cases
of SIDS in such a family. "This approach is, in
general, statistically invalid. It would only be
valid if SIDS cases arose independently within
families, an assumption that would need to be
justified empirically. Not only was no such
empirical justification provided in the case, but
there are very strong a priori reasons for
supposing that the assumption will be false.
There may well be unknown genetic or
environmental factors that predispose families to
SIDS, so that a second case within the family
becomes much more likely. Society does not
tolerate doctors making serious clinical errors
because it is widely understood that such errors
could mean the difference between life and death.
The case of R v. Sally Clark is one example of a
medical expert witness making a serious
statistical error, one which may have had a
profound effect on the outcome of the
case. The Royal Statistical
Society 23 October 2001
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• R V Canning 2002
• Accused of killing 2 sons Jason (6 wks) and
  Matthew (18weeks)
• Gemma (RIP 13 weeks) and Jade survived
• All suffered at some time ALTE
• Differed from S Clarke as no physical evidence
• Prosecution rested on perceived suspicious
  behaviour rang husband rather than emergency
  services
• Meadows claimed that boys not genuine cot
  death as healthy up to death (contradicting other
  experts) and that she was a MSbP sufferer.
• Conviction later overturned as unsafe in Dec
  2003.

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• On June 21 2005 Meadows appeared before
• GMC fitness to practice tribunal
• On July 13th ruled that his evidence in R V
  Clarke was misleading and incorrect
• On July 15th decided he was guilty of serious
  professional misconduct (later appealed)

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SUMMARY 1.

• Expert witness in court is in a somewhat
  exalted role in providing assistance on a matter
  outside the ordinary experience of the court.
• He/she participates in the proceedings. Usually
  retained by one of the parties and unlike an
  ordinary witness is usually paid. Provides
  factual data, performs an advisory role i.e
  identifying strengths and weaknesses and lays the
  groundwork for possible settlement

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SUMMARY 2.

• The finder of fact is free to disregard
  expert opinion or in a case involving 2 or more
  experts to choose between conflicting opinions
• The relationship between law and science is
  tainted by the consequences of miscarriages of
  justice that may occur.
• Variously described as love-hate,clash of
  cultures and a marriage of opposites

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• Reliability of scientific evidence
• Frye v United states led to
• general acceptance test
• the scientific
• theory or technique on which the expert relies
  must be endorsed by a
• substantial majority of specialists in the field

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Daubert v Merrell Dow Pharmaceuticals,Inc
1993 Standard for expert evidence within the
scientific community should rest on both a
reliable foundation and be relevant to the task
at hand Whether the theory or techniques had
been or can be tested ? Whether it has been
subject to peer review and publication? What
is the known of potential error rate? The
existence and maintainence of any standards
controlling its operation? Whether it has
attracted widespread acceptance within the
relevant scientific community?
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• Expert Witnesses
• Have a duty to the court
• Are not advocates
• Provide the judge and jury with information to
  make a decision

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• SO
• Here we have single parent, living alone
  lively child left unattended - does this raise
  red flags????
• Autopsy oedematous brain, subdural and retinal
  haemorrhages - does this raise red flags????
• Is this Shaken Baby Syndrome??????

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• CONCLUSION
• The use of expert witnesses is likely to
  continue
• Courts are wary
• Expert has a difficult role
• Needs to keep it simple
• Be able to explain the scientific basis