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American Pain Society
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Glenview, IL 60025
David A. Williams, PhD, Department Editor
Brenda Moss Feinberg, ELS, Staff Writer
The APS Forensic Special Interest Group (SIG) is cochaired by Kurt V. Miller, MD, and Mary Baluss, Esq., director of the Washington, D.C.-based Pain Law Initiative. In this column, Miller (KM) and Baluss (MB) discuss the Forensic SIG’s activities from both the pain practitioner and legal points of view.
(MB): This SIG was formed to recognize the fact that pain-related issues surface frequently in courtrooms. Judges and the people who make up juries know little about the science of pain or its treatment. Sometimes a jury needs to understand the subjectivity of pain or the extent to which and why pain is experienced differently by different people or even different ethnicities. When a case involves either the quality or good faith of the prescriber’s decision to treat pain with opioids, there are many questions that an expert should address. These might include the quality of informed consent, the effects of the opioids, the risks of addiction, treatment decisions, follow-up evaluation, and the meaning of patient behavior.
As an attorney, I must find experts and make sure they are prepared to testify competently and honestly. I have an obligation to understand my case and identify its strengths and weaknesses so I can advise my client and represent him or her well in court. Then it is my job to help the experts prepare to testify well. Testimony is an education process. It has to be clear and comprehensible to a lay jury. The forensic SIG educates members about the ethical aspects of being a competent expert witness.
(KM): Courts can come to a just decision only if experts can explain clearly—without bias—the complex medical issues. Our group hopes to help members learn how to do this.
(MB): Our major interest is to assist members in becoming first-class, impartial, and ethical expert witnesses. One major priority has been to examine the ethical guidelines of major professional organizations that relate to expert testimony. Medical professionals rarely are aware that when testifying as experts, they are, in fact, “practicing medicine” and need to act with the same careful consideration and awareness of the standards of care they exercise in daily practice. Other organizations’ ethical standards instruct experts that their testimony is not for sale, and that it must be grounded sufficiently in good scientific and medical knowledge that could be offered for either side of a legal dispute. There are a good number of ethical traps in expert testimony.
(KM): There are the medical expert issues to address, as well as the nuts and bolts of the business of being an expert. Essentially, you have to review the data provided, perhaps examine a patient, and then explain, point-by-point, the rationale for your conclusions. This can be intimidating at first but the Forensic SIG can help make it less so. The business side really is a question of getting paid fairly for your work and integrating a different type of work into your practice.
Beginners ask common questions such as, “Is there an increased malpractice risk if I testify as an expert?” No, there is not. They also ask, “Do I have to worry about being sued in some other way?” Yes, if you are examining a litigant, they are in a population prone to litigation. You could be next, so take reasonable precautions, such as having a chaperone in the exam room—even when examining same-gender patients—and be sure your slip-and-fall insurance is paid to date.
Some also may ask, “Are all lawyers jerks?” No. The more successful the attorney, the nicer he or she will be; “jerks” turn off juries, so they don’t do very well. Lastly, people ask “Is the work fun?” Yes, the work can be fun because often resources are unlimited and you can take as much time as it takes to figure out really tough questions. Attorneys are bright and clever people with whom it is fun to work. The work can be a pleasant change of pace.
(MB): Any APS member may be asked to become an expert witness. Generally, the testimony begins with a question from an attorney about expertise, availability, and the witness’ opinion on issues. If the attorney remains interested in retaining the member as an expert, he or she will forward records for the expert’s review and ask for a written opinion. The Forensic SIG has drafted a set of ethical standards for APS members who are testifying as experts and has recommended them to the APS Board for consideration. Additionally, the SIG is interested in collecting and understanding cases in which medical management of pain leads to criminal prosecution.
The most recent SIG meeting involved a panel discussion on the preparation of an expert witness report. That opinion eventually will be provided to the opposing side and there may be a deposition and court/administrative testimony to follow.
