Indicia of Good Faith in Expert Testimony

We argued that experts testifying in good faith to opposing views implied a scientific controversy. The court was not competent to resolve it. Only additional data can resolve a scientific controversy. Presumably, if the data were easy to get, one of the experts would change opinion and end the case. We argued the court should restrict itself to question within the knowledge of the jury.

Question. Are there indicia of good faith testimony and reliability?

1) Experts should have used the same facts, and had an opportunity to enumerate them to each other, as in depositions.

2) The fees should be within a third of each other. If one fee is 50% higher or more, there is a temptation to please, by testifying in bad faith. The higher fee should be reduced by the judge, to insure absence of temptation.

3) The testimony work of the expert should be below a set fraction of total income. The expert may testify under oath, without providing tax documents. I am going to arbitrarily set the maximum at 10%. If I lose that fraction, I am starting to sweat about the bills. I am open to
argument about another fraction.

4) Prior inconsistent statements. In a similar case, with the same outcome, harm, and facts, the expert testified otherwise. OK. What explains the change? In the absence of new research data, or substantive personal experience, a prior inconsistent statement is a sign of bad faith.

4a) All the records of all the similar cases treated by the expert should be subpoenaed. If the expert failed to follow his own asserted standard of due care, a mistrial should be declared. The expert should be made to pay the expenses of both sides, and of the court, as a perjurer.

5) Repeated testimony for an attorney, or for only one side. If there is a lucrative and prolonged relationship with an attorney or one side, that is a sign, the expert does not want to end his meal ticket, and will shade his opinion to please his good customers.

Other indicia welcome. If an expert fails one of these indicia, the case should end. If the judge does not want to end the case, it may be proper for the judge to instruct the jury to discount the validity of the testimony by the strength of the failing indication.

Expert Checklist

Checklist for Review of Medical Records

by Defense Expert in Malpractice

Lawsuit for Suicide

Elements of Torts

Introduction and Duties:

• How many hours would the alleged "standard of care" evaluation and management take?
• Can the plaintiff expert pay all business and personal expenses from work not involving testimony?
• Does the plaintiff expert have or had the same job as the defendant for over 2 years? Academic should not be qualified to comment on community psychiatrist. Academics are verifier with less clinical experience than clinicians. Their views may be several years behind clinical practice. If state law requires it, is the expert as qualified as the defendant, e.g. is Board certified in the same sub-specialty?
• No text is authoritative, only an experienced clinician. Texts summarize studies from one or two years before. These studies take four or five years to verify what has been accepted in practice. So texts pretend to provide cookbook medicine, which does not work. And, they are years behind, even if recently published.
• Does the alleged error of omission or commission have valid research indicating long term prevention of suicide (otherwise, speculative, experimental, or "junk science"). Only long term, coerced treatment has been proven to reduce the risk of suicide.
• Has the plaintiff expert provided his record of managing a similar patient, names, locations blacked out? It is unjust if an expert promotes a standard of care not practiced by the expert. If the expert has written an article on suicide, does it agree with the testimony?
• Is the standard of care in the testimony superior to customary practice, to promote the change agenda of the expert? Where is the survey supporting the acceptance of such a belief?
• Is someone making a claim of a duty to involuntarily commit the patient? No such duty exists. Such an assertion may contradict federal case law. A search of state and federal case law for the term "involuntary commitment duty" or "shall involuntarily commit" yielded no result as of 2006.
• Professional judgment immunity covers the act in the lawsuit.

Biology:

• Family assortative mating. Genetics accounts for 10% of suicidal tendencies (identical twin concordance)
• Psychiatric history, especially involving impulsivity. Did mother smoke or drink during the gestation of the victim?
• Causes of serotonin suppression
• Family interview for psychopathology and attitudes. Family full background check, interview of neighbors, co-workers, drinking friends, relatives, old intimates. This inquiry serves to substantiate genetic contribution to suicide.

Patient errors:

• Has the patient watched a tort lawyer commercial discouraging the use of psychiatric medication, and altered their compliance after doing so?
• Intoxication
• Alcohol use. [Gossup, M.: Alcohol in Suicide Attempts and Completions, Psychiat Ann 35:513-521, 2005.]
• Substance withdrawal, e.g. from stimulants
• Non-compliance with biological advice, medication doses skipped
• Non-compliance with psychosocial advice, e.g. avoid disturbed spouse or family, avoid conflict
• Missed appointments, failure to get follow-up appointment elsewhere
• Weapons or large supplies of medication for overdose left available
• Contagion (suicide or violent acts in social circle, sources of news used--newspaper, TV, magazines, etc., exposure to violent stories within prior 6 months)
• Has any felony or misdemeanor been committed (drug use, driving without a license, assault, theft of drugs, etc.)? It may offend public policy to reward criminal behavior with damages in a lawsuit.

Support System Errors:

• Ending logistic support
• Conflict as precipitant (see content of suicide notes, statements), often exceeds 50% causation. Would the suicide have taken place but for the rejection or conflict?
• Negative expressed emotion agitated the patient.
• Scapegoating of clinician.
• Did carelessness of caretaker contribute to the ability and ease of suicide after the care of the provider? This site describes the response of the reasonable family.
• Will cash compensation ruin the family by causing relapse of substance abuse in survivors?

Proximate Cause:

• Tool used and its distribution chain as co-defendants.
• Availability of tool.
• Need age, sex, social factor matched rate of suicide if substance suspected of causing greater risk of suicide. Otherwise accusation is junk science, e.g. Accutane.
• Were there errors committed by family, others between the clinical act and the suicide? Were they reasonably foreseeable by the defendant?
• Victim has to be entirely free of any other risk factor.

Compliance with Legal Decisions:

• Standards of care set by judge. Federal courts have supported liberty interests more than coercive treatment.
• Least restrictive alternative.
• Does the complaint refer to any drug informed consent claim? FDA regulations may pre-empt it.
• Suicides can be reduced in systems excluding lawyers (military, prisons, corporations). Lawyers and judges control psychiatry outside these coercive settings, thus carry moral liability as a profession.

Discrimination:

• Standard of care cannot raise risk for civil rights lawsuit, with limitless damages, perhaps not covered by medical malpractice insurance.
• Failure to commit: incarceration for self-injury potentially violates ADA, and federal case law.
• Failure to restrict tools discriminatory.
• Confidentiality broken by frequent trips to drug store, calling sheriff to home (police report in newspaper).
• Increasing road risk from frequent trips to drugstore. Lawsuit by patient or patient's victims in road accident.
• Evasion of coverage.
• Ruinous legal fees.

Lowered Economic Value of Life from Disability

Search and Seizure Absent a Crime:

• Risk lawsuit for false imprisonment (violations of Fourth, Fifth Amendments)
• Hospital security cannot exceed that of prisons, so contraband always possible.

Lack of Scientific Validation of Duties and Accreditation Standards

• Staffing
• Supervision
• Physical plant
• Suicide rate lower in past in U.S., in other less well equipped countries
• Quality of records does not correlate with harm (See Table 3)

Adequate Treatment: prediction and selection of suicide not possible

Restriction and Hospitalization:

• Not proven -experimental, violates human rights as subject if consent not given for research protocol
• Negative reinforcement - habitual escape from problem solving, responsibility, work load
• Positive reinforcement - attention, retaliation against family, excitement

Reimbursement:

• 13^th Amendment: proposed duty should not enslave provider (service not paid for, e.g. extra hours, telephone calls)

Sociological Factors:

• Unemployment
• Childhood maltreatment
• Low socioeconomic status (from disability?)
• Influenza epidemic
• Age
• Sex
• Doctors
• Guns
• Religious beliefs or lack of them
• Homosexuality
• Per capita land area of state
• Per capita consumption of hard liquor
• Smoking cigarettes currently
• Menstrual cycle
• Drop in family income (not parental class or education)
• Religion as protective factor
• Season
• Being younger member of school class for suicide under age 20
• Clinical decision making not found as a factor
• Country for both male and female
• Not being in a lawyer free zone (e.g. military)

Prediction:

• False positive = 98.7%, thousands falsely incarcerated for each suicide temporarily prevented
• Lawsuits to follow for false imprisonment
• Insurance fraud
• Lack of foreseeability

Terminal depression may be more painful than cancer. Respect the victim's intelligence if not impulsive.

Responsibility of victim: suicide more voluntary than many superior and normal functions.

Judgment Possible Only on Overall Rates for Each Clinician. Controlling for severity of patients in care, is there an excess of suicide in the overall group compared to equivalent clinicians, and facilities.

Blaming for Acts of Second and Third Parties Unfair. The future acts of people can be foreseen with the accuracy of winning lottery numbers.

Do the above add up to more than 50% contributing liability? In five states, does defendant liability less than 50% equal zero liability?

Due Process Rights of the Civil Defendant

• Procedural Due Process Right (Section 1) to a Fair Hearing
• Outcome bias effects on the public (jurors), experts
• Hindsight bias in experts
• Money bias
• Other biases
• Trial Bifurcation as Remedy for Bias
• Future forecasting
• Daubert standard for expert testimony
• Frye test for expert testimony
• Lawyer Rules of Conduct
• Rules of Civil Procedure

Deposition and Reports:

• Plaintiff Lawyer Tactics
• Defense Lawyer Tactics
• Report Drafts, all materials relied upon are subject to discovery, except in New Jersey

Another Garbage Expert Claiming Garbage Science

Here. Where is the evidence that his garbage standards have ever prevented a suicide? I am demanding the data. Will keep you posted if any is ever sent. Blinder is best known for the inventive Twinkie Defense. The standard of care in suicide malpractice claims is being set by an expert of this caliber.

Beyond Daubert or Frye to Reality

Daubert web site.

Let's stick to a standard of care testimony. The expert may properly cite studies. These are authored by academics, most often. Clinicians spread advances by word of mouth, and they get accepted or rejected within weeks. Strong remedies will become self-evident at the gut level. Weak or ineffective remedies will fail to impress and get dropped.

If the expert proposes some standard of care, e.g. heart decelerations this many times require C-Sections, should we settle for academic studies? Shouldn't we demand the expert provide his own records on the management of similarly situated patients? If the expert can only provide 3 such records, does he qualify as an expert? Can one be expert after 3 repetitions of decision making? If he can provide a dozen such records, are they the totality of the records of similar patients, and not cherry picked records agreeing with testimony? One should demand all the records of the expert, and sample them. If a record is found that contradicts the testimony, a mistrial should be called, and the legal costs of both sides should be obtained from the lying expert's personal assets.

And, yes, experts should feel intimidated. With the absurd arrogance to dictate practices to the doctors of the entire state at the point of a gun, they should take the consequences of their lying prostitution to the land pirate.

Falsified Expert Experience Results in Criminal Plea Deal

The case is nicely summarized here.