According to the American Heritage Dictionary, 5e Editing, the term “forensic” expresses the use of science or technology in the investigation and establishment of facts and evidence in court. A forensic expert witness is a person with knowledge, training or education and experience who is engaged to testify and render opinions and conclusions regarding legal actions in his or her selected field.
Audiologists are trained in acoustics, hearing sciences, balance, physiology and neurophysiology, site diagnosis of lesions, diseases, disorders and syndromes, teratogens, exposure to noise and explosions, head and neck trauma, rehabilitation, standards of care, electronic and hearing devices, and other disciplines. In forensic audiology, the expert frequently comments on the relationship between hearing, hearing loss, tinnitus, hyperacusis, balance and auditory treatment of injuries and causes, employment, access, disability, impairment, handicap, rehabilitation and outcomes. There are many opportunities to work in forensic audiology, as the subspecialties of medical audiology, industrial audiology, pediatric audiology, educational audiology, fabrication, cochlear implants and rehabilitation have their own audiences.
Forensic audiology cases cover the gamut of legal concerns, including administrative law (government agencies), constitutional law (human rights and civil liberties), workers’ compensation, civil law of civil liability (bodily injury) and criminal law. Audiology experts rule on a variety of cases involving accidents, assaults, OSHA regulations, ADA and discrimination, education disputes, fitness for duty, product liability, hearing aids and other devices, malpractice, criminal actions, etc. For the forensic audiologist, this means bringing a level of knowledge, skill and ability that must meet the highest standards and can withstand the scrutiny and legal challenges of opposing counsel, other experts and courts. Expert witnesses know that testimony and reports will be dissected by other experts in audiology, ENT, neurotology, neurology, psychiatry, psychology, education and acoustic engineering. In addition, the expert should assume that the opposing lawyer will carefully review the audiologist’s CV, publications, transcripts of previous depositions and trials, as well as interviews in newspapers, online information, websites. , health notes and reviews. For audiologists with expert level abilities, being able to navigate the forensic arena is achievable and difficult.
ARE YOU AN EXPERT?
The first obstacle is being able to follow the criteria of the Daubert standard. In the legal realm, measures of expert status and admissibility for federal and numerous state courts have emerged from the United States Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993). From this case Federal Rule of Evidence 702 was enacted, with several cases further defining this premise. A Daubert challenge by opposing counsel may arise if it is believed that the expert does not have (a) scientific, technical or other specialized knowledge to help the trier of fact understand the evidence or determine a fact. in question ; (b) provide testimony based on sufficient facts or data; (c) present testimony using reliable principles and methods; and (d) reliably apply the principles and methods to the facts of the case. While these are not surprising requirements for most audiologists, and challenges from opposing counsel are not typical, a challenge to their competence can be avoided by following some reasonable guidelines. Not all newcomers will have the same level of legal experience. An audiologist with years of experience, a well-crafted CV and the right references can be an expert witness.
According to Robert A. Doby, MD, in his book Forensic assessment of hearing loss (Singular, San Diego, 2001: 393), expert ratings and conduct guidelines should include (a) a valid license and board certification; (b) appropriate specialist knowledge on the subject; (c) relevant continuing education; (d) commitment to the clinical practice of their specialty and knowledge of the standard of care; (e) be prepared to disclose the percentage of time worked as an expert witness in relation to clinical or research activities; (f) the relationship between claimants and defendants; and (g) fees. The expert should make it clear to either lawyer that medico-legal fees are paid for the expert’s time, not his opinion.
PROFESSIONAL AND ETHICAL CONSIDERATIONS
A qualified expert witness must be independent, impartial and not defend a position or appear partisan in legal proceedings. The expert witness must be prepared to disclose the basis of his testimony, his opinions and his conclusions. These include generally accepted opinions in the expert’s field, clinical experience, evidence-based guidelines, and current literature. At no time is it appropriate for an expert witness to provide misleading, false or erroneous conclusions, which can lead to criminal prosecution for perjury, civil suits for negligence, and actions against their professional license.
The audiologist should be prepared to be cross-examined in testimony or in court and provide a level of skill and explanation that codifies the case and meets the education and information needs of legal professionals, the jury and court. Although the expert witness may be engaged by legal counsel for the plaintiff or the defendant, the forensic pathologist must remain independent. The expert witness should not accept cases where payment is contingent on a specific outcome. It is essential to protect its professional integrity and reputation. Whether it is a positive or negative opinion, this decision is never influenced by the person who appoints it and without regard to the consequences, only to the facts.
Although the reimbursement of clinical fees is primarily based on Medicare’s inept fee schedule, legal fees do not follow this standard. In contrast, legal protocols, reports, depositions, court appearances, and accountability fall outside the requirements of clinical practice and are much more rigorous and sometimes contentious. Fees are typically divided into five-minute increments for specific tasks such as legal consultations, case reviews, patient examinations, report writing, testimony, summary judgments, travel, and presentations. educational. Unlike clinical practice, legal advice is similar to attorney’s fees. Before participating in a legal consultation, a fee schedule and an employment contract must be drawn up and applied in all cases. An easy way to control costs over time is to include any testing during the patient exam. To review suggested fees for medical expert witnesses and obtain training, audiologists may consult with expert witness offices for more information.
CREATING THE REPORT
One of the most important aspects of an expert witness is report writing. There is a significant difference between the clinical report and the independent medical examiner’s report. Primarily, the report should follow an accepted format, present information in a concise manner, and render conclusions with documentation to support the expert’s opinion.
To prepare to provide expert testimony, the audiologist should examine the merits of the case, assess the material facts, review and interpret the available records, provide a diagnostic assessment appropriate to the case, document the main features, provide a assess the case, render an opinion and write an impartial report. The report should be accurate, informative and educational with a clearly expressed opinion to enable lawyers to understand, assess and critique the information. The components of a report generally follow the reader’s needs to understand and assess the merits of the case. One example is to start the report with a statement of the complaint and the expert’s opinion. This can be followed by the interview with the patient, a section reviewing the relevant records, the results of the audiological diagnostic tests, the results of the questionnaire and interpretation, and then the conclusions of the expert linking the dots. A link must be provided if the court is to make an informed decision. This is followed by a discussion of the claimed problem and a reference to current knowledge, practice and acceptable research. Once these facts have been reported, a review of the patient’s impairment (AMA-WPI; Journal of the hearing. 2015 ; 69; 40. doi: 10.1097 / 01.HJ.0000480890.25214.bb), disability, handicap and outcomes with or without therapy are critical. This should include estimates for hearing aids, replacements, sound therapy, rehabilitation, annual re-testing and adjustments, etc., as well as recommendations for CBT or referral to other specialists. The last paragraph briefly reviews the case and the expert’s opinion. The last element is the bibliography, which supports the conclusions and opinions.
Working in the forensic field is a rewarding vocation for those with expert skills who want a challenge and remuneration based on merit. As audiologists, we work to help people using scientific methods and principles. We assess causation, diagnose hearing loss, prescribe treatment, and provide counseling and rehabilitation on a daily basis. These skills are an asset when considering forensic audiology, which can be one of the best practice additions for a qualified clinician, teacher or researcher.