Promoting ethical and objective practice in the medicolegal arena of disability evaluation.
As providers of medical information and testimony, clinicians have ultimate responsibility for ethical conduct as it relates to this information. The authors offer the following recommendations for enhancing ethical relationships between expert clinicians and the courts. 1. Avoid or resist attorney efforts at enticement into joining the attorney-client team. Such compromises of scientific boundaries and ethical principles exist on a continuum ranging from standard attorney-client advocacy at the beginning of the expert consultation phase (e.g., promotional information at the forefront of retaining an expert, with either provision of selective or incomplete records or less than enthusiastic efforts to produce all records) and extending to completion of evaluation, when requests for changes in reports and documentation might be made. 2. Respect role boundaries and do not mix conflicting roles. Remember that the treating doctor possesses a bond with the patient but does not as a rule obtain complete preinjury and postinjury information in the context of assessing causality and apportionment. In contrast, the expert witness must conduct a thorough and multifaceted case analysis sans the physician-patient relationship in order to facilitate objectivity and allow optimum diagnostic formulations. Finally, the trial consultant's function in this adversarial process is to assist with critically scrutinizing and attacking positions of experts for the opposing side. These roles all represent inherently different interests, and mixing them can only reduce objectivity. 3. Insist on adequate time for thorough record review, evaluation, and report generation. Also insist on sufficient time and preparation for deposition and court appearances. 4. Work at building a reputation for general objectivity, reliance on multiple data sources, reaching opinions only after reviewing complete information from both sides, and completing the evaluation. 5. Spend a good amount of time actually treating the patient population being examined or being offered testimony about. This treatment should be current and should be of a similar frequency to treating practitioner specialists. Be able to discuss relevant research and scientific methodology issues competently and without notes. 6. Arrive at opinions only after reviewing all of the evidence from both sides of the adversarial fence, employing multiple data sources, completing the evaluation, and interpreting data within the full context of comprehensive historical, behavioral observation, and contextual information. Being otherwise favorable to retaining attorney interests suggests endorsement of "opinion prostitute," "scientific perjurer," or "hired gun" status. The only way a practitioner can reduce the likelihood of facing an "opinion prostitute" on the opposing side in future cases is to insist on establishing and maintaining a reputation for scientific objectivity. 7. Balance cases from plaintiff and defense attorneys. Predilection for one side or the other suggests bias and sets up predisposition to nonobjectivity. For example, a preponderance of plaintiff work suggests an overdiagnosis or uncritical sympathy bias, whereas a ratio that favors hiring by the defense suggests an underdiagnosis or skepticism bias. Perhaps Brodsky's suggested cut-off ratio of .8 for favorability findings would represent an initial cutoff for defense versus plaintiff ratio. That is, experts should do at least 20% work for the opposite side of the current case being represented. Further, it might be a reasonable expectation that data on these ratios be collected as an important method for ensuring objective opinions. 8. Ensure against excessive favorability to the side of the retaining attorney or firm. Objectivity demands that scientific opinions not be influenced by the position of the legal advocate. Importantly, Brodsky recommends using a ratio of .8 as a cut-off for detecting excessive bias. That is, practitioners should possess prerequisite objectivity to disagree with the referring attorney at least 20% of the time. We suggest that a more useful cut-off would be .75, where experts are expected to generate findings that do not support the referring attorney's position at least 25% of the time. 9. Never arrive at opinions that are inconsistent with plaintiff records, examination data, test data, behavioral presentation, and so forth, especially when such opinions are favorable to the side of the retaining attorney firm. Instead, use the following recommendations. (ABSTRACT TRUNCATED)
Martelli
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Department of Rehabilitation Neuropsychology, Concussion Care Centre of Virginia, Richmond, Virginia, USA.
Zasler
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Johnson-Greene
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D004185:Disability Evaluation; D004995:Ethics, Professional; D005104:Expert Testimony / Q000592:standards*; D005554:Forensic Medicine / Q000592:standards*; D006801:Humans