Anatomy of the Expert Medical Witness

1. Anatomy of the Expert Medical Witness Sharon W. Cooper, M.D. University of North Carolina at Chapel Hill Developmental & Forensic Pediatrics, PA Womack Army Medical Center, Fort Bragg Sharon_Cooper@med.unc.edu Sharon.Cooper1@us.army.mil

2. Introduction • Fatal child abuse cases involve education and demystification of the jury • Whether you are a fact witness or an expert who has reviewed all of the data, using a standard approach in your testimony is invaluable • Always try to keep your testimony simple and direct and avoid at all costs the appearance of hostility towards anyone

3. ATTENTION TO DETAIL AXIOMS IN ANY FAMILY VIOLENCE CASE

4. A STAR IS BORN • One becomes an expert witness when the victim first comes under your medical care • What separates a fact witness from an expert witness is ATTENTION TO DETAIL

5. CASE EVALUATION • C.M. is a 3 year old male who is brought to the ED by his mother and her “babysitter”, an AD E6 male. He is carried in, in extremis, somewhat nonchalantly, with no shouts for assistance etc. The staff immediately recognize how severe his presentation is and instant efforts are made to establish ABCs and advanced trauma life support

6. GATHERING THE HISTORY IN A FORENSIC CASE • What would one do differently in this case, as compared to a MVA? • How should one document the medical record? • Is there a role for ED collaboration early in the evaluation?

7. WERE YOU THERE? BEWARE THE SECOND HAND HISTORY OF A NON-OFFENDING CAREGIVER

8. DOCUMENTATION • In any potentially forensic case, history should be gathered from care providers separately • If a care provider is not present, one should call them and confirm their identity telephonically, to obtain a first hand history • If the child was in another person’s care before they were thought to have been injured, it is imperative to talk with that person as well, to document their impression of the child’s condition

9. DOCUMENTATION • It is important that each health care provider (triage nurse, MDs etc.) obtain their own medical history as compared to just repeating a “consult” history • On the inpatient service, obtain & review all previous available medical records

10. HISTORY • If Law Enforcement was on the scene at the time of the EMS dispatch, include in the medical record information from this source as well. • For example, if the police respond, and the care provider is drunk while the child victim is profoundly injured, inclusion of this information in the record is essential and details may only be available from the investigators

11. JUST LISTEN • When interviewing caregivers, don’t argue although skepticism can be expressed if an explanation is completely inconsistent • Take careful notes, but dictate your final encounter if at all possible • Be very polite-you will obtain more details • Assure the caregivers that your need to know is due to make sure you provide adequate care

12. HOSPITAL COURSE • Encourage nurses to document caregiver’s explanations regarding the injuries • Pay attention to other family members who may arrive and offer more information • If radiology tests are to be done, call and discuss the case before the studies so that more care will be taken and discussion of results can occur before the dictation is done

13. ATTENTION TO DETAIL BARRIERS? SOLUTIONS

14. BEHAVIOR OF CARE PROVIDER~ DOCUMENTATION • Document carefully when the care provider noted that the infant or child was abnormal, and when they sought medical care • Define and document if there was any information given to the non-offending parent, or did that parent merely “discover” an unresponsive child • Define if the possible perpetrator is available at the hospital, or are they difficult to locate? Is there delay in their appearance at the ED or PICU?

15. BEHAVIOR OF CARE PROVIDER~DOCUMENTATION • Kubler Ross’s research on the reaction of family to unexpected serious accidents or deaths helps in our expectation of family response to bad news (denial, anger, bargaining, depression, acceptance) • Note if there appears to be role reversal in the history or behavior of the possible perpetrator • Note care provider’s affect e.g. anxious, carefree, inappropriate, unpredictable

16. CAREGIVER MISCONCEPTIONS • Unrealistic expectations • Caregiver victim role reversal • A lack of empathy • A vested belief in the value of punishment • A need for power and control

17. MEMORIES AND TRAUMA • “Down to the basement we go, where she ties us to a big pole that stands from the floor to ceiling – a stanchion, they call it, because it holds the house up. She ties us to it back-to-back with rope and leaves us here in the dark. After a few minutes, Dwight whispers, “Don’t be scared.” I say nothing, ‘cause I am scared. There’s monsters and bad things happen down here. Dwight and I know we’ll be in more trouble if she hears us talking, so we sit there quiet, except for our short, frightened heartbeats and the sounds of unseen creatures in the dark.”(Antwone Fisher, Finding Fish, 2001 – 7 year old memory)

18. CONFRONTATION Avoid confrontations even if the history given is ludicrous!

19. CONFRONTATION Briefly suggest that the injuries are more serious than the history would suggest, and ask if there is more information that they recall which could account for the e.g. broken arm or fractured ribs (injuries which may have been unknown to the caregivers)

20. CONFRONTATION Carefully document if suggestions are provided by caregivers such as a sibling or babysitter assailant even though they might state that the child was well in the interim

21. DON’T BARGAIN • Don’t pressure care providers to change their story, “Because it just doesn’t fit!” • If the history seems implausible, remember that the best lie is a very detailed lie, because it is much more difficult to recall every aspect of a very detailed lie • Asking for more minute details is not entrapment, but allows one to assist the investigators to look for information which is likely to be absent

22. 911 • At some point, it is very helpful to review or hear the 911 tape, prior to court testimony • Often the inconsistencies begin even there (mother tells the 911 operator that the victim “fell off the balcony” and then told the paramedics that the toddler “fell down the stairs”)

23. ATTENTION TO DETAIL

24. PHYSICAL EXAMINATION • Note the overall appearance of the child ~ emaciated, long fingernails, thin hair, big head as compared to the body • Multiple bruises of different ages • Glascow coma scale score • Degree of responsiveness (often totally unresponsive with no medications that would be suppressants)

25. PHYSICAL EXAMINATION • Remember that the forensic approach or model is focused on evidence gathering, in a court worthy manner • If clothes are bloody, this should be saved for DNA analysis, since the blood should only be the child’s and if there is another person’s blood present, it may represent the child’s efforts at self defense

26. PHYSICAL EXAMINATION • Bite marks require special attention, and a forensic odontologist should be called for documentation and possible impressions • Hand prints, knuckle prints, boot prints etc. should be carefully photographed so that later crime scene evidence could be retrieved (e.g. ring marks, etc.)

27. DOCUMENTATION OF PHYSICAL FINDINGS • Photography should be done by both hospital and law enforcement • It is critical that photos be taken very early in the hospital course, as shock rapidly causes skin findings to disappear

28. DOCUMENTATION • Include a standard in the photo, such as a coin, to allow a comparison for size; An alternative is to include a tape measure in the photo • Obtain 24-hour or 48 photos after admission for comparison purposes

29. DOCUMENTATION OF PHYSICAL FINDINGS • Strongly consider a body map or diagram in the medical record • This is particularly helpful since many bruises are gone by 72 hours after the hospitalization, and if the child dies, postmortem documentation often looks far less traumatic externally • Body maps are almost always permissible in court whereas photographs may not be

30. SCAN NOTES • If your hospital does not have a SCAN team, establish such an entity • Multidisciplinary teams which affirms diagnosis in the hospital should include Child Protective Services, Law Enforcement and the health care team • Members should sign in or be noted in the medical record

31. FINAL DIAGNOSIS • SCAN team assists in “objectifying” the final diagnosis, especially if a child survives • This team helps to make it clear that as much information as possible was considered before child maltreatment was confirmed in the hospital • Share the findings with the family afterwards

32. A SPADE IS A SPADE! • Discharge diagnoses should not avoid the cause of the injury-child abuse, battered child syndrome, shaken baby syndrome, abusive head injury etc. • Do NOT discharge a victim with a multitude of documented injuries, but no cause • Final diagnosis should not be “Rule Out…..”

33. CONSULTANTS • If a consultant is “waffling”~ be direct and ask them to answer the question in their note if the injury is abusive in nature • This is particularly important in Orthopedic and Radiology consultations, where a detailed verbal history is very helpful for their record

34. MULTIPLE CONSULTANTS • Do not presume to be every specialty! If you have subspecialty capability, use them! • Pediatric Radiology, Physical Therapy, Speech Therapy, Dentistry

35. MULTIPLE CONSULTANTS • Ophthalmology is essential for possible retinal hemorrhages, and your reading should be stated as “preliminary”, because the best determination is with a slit lamp, or a retinal camera • Neurosurgery is an additional important consultant and be sure to dialogue for your note with this type of surgeon

36. DICTATION • Do not let an intern or a resident write notes in the chart without a daily staff note on a forensic case • Do not discharge this type of case without a dictated summary. This would include the ED note, if the victim is being discharged to another hospital or a PICU. If you cannot do this at the time, take your time and carefully dictate a complete note within 24-48 hours if at all possible

37. DOCUMENTATION • Especially do not let a provider who is still in training be the only person to document the discharge summary • Review your dictation to be sure it really says what you meant

38. COURTROOM PREPERATION DO YOUR HOMEWORK

39. General Format • Qualifying questions (provide for the prosecution) • List the items reviewed (expert testimony) • List the standard method used by your institution for diagnosis, investigation, evaluation, etc. (fact witness)

40. QUALIFYING QUESTIONS • Provide the questions and answers for the prosecutor as a working document (discuss first with the attorney) • Break the questions into parts, so as to explain the significance of your training and work experience • Have a special category for professional organizations to highlight knowledge of practice guidelines

41. QUALIFYING QUESTIONS • As compared to maintaining a credentials file of CME, consider a special training file for short courses of particular importance to the specific case • Be sure to include your experience in training multidisciplinary groups

42. ITEMS REVIEWED • Include all matters e.g. medical records of terminal hospitalization, emergency response records, outpatient records if available, autopsy report and photos, and investigative records if available;

43. STANDARD METHOD OF CARE • This information might be included in qualifying questions as “How many patients have you seen who have died in a manner which did not coincide with the history given by the parents or caretakers?”

44. STANDARD METHOD OF CARE • Include one’s general practice guidelines and attempt to include state attorney general’s guidelines for child abuse should these exist; • Tabulate how many patients you have ever seen in your experience

45. STANDARD OF CARE • Describe in detail the generic flow of patient care in your hospital when a child is admitted for severe trauma or in extremis; • Describe your understanding of other consultants’ evaluations (e.g. Ophthalmology, Radiology etc) so as to be able to speak of these reports should these clinicians be unavailable;

46. WORK WITH THE PROSECUTOR • Transactional analysis says you can’t be angry when someone cannot read your mind! • Write out a working document with suggested questions (and answers) for the prosecutor (discuss first) • This exercise will allow you both to identify weaknesses in the case and address them “up front”

47. GENERAL FORMAT~FACT WITNESS • Know this case (date, refer to victim and accused by name, and relate information chronologically) • Give overall picture of your involvement (e.g. SW who saw the family 8 times over 4 months) • After stating facts of your involvement, be prepared to place this case in your venue of experiences

48. GENERAL FORMAT~EXPERT WITNESS • Cite foundation information (e.g. Retinal hemorrhages are present in about 85% of SBS cases.) Include further information both from the literature and your experience. Your role is to educate the jury or judge, but not to lecture.

49. GENERAL FORMAT~EXPERT WITNESS • Follow foundation information with fact information (e.g. Baby Doe was noted prior to death to have severe retinal hemorrhages).

50. PRESENT FOUNDATION, THEN FACTS • Present foundation information and then follow immediately with fact information on the same subject specific to this case. • Therefore there will always be 2 “matching questions”, a foundation question immediately followed by a fact question “In this case, was there evidence of…?”