According to the American Heritage Dictionary, 5th Edition, the term “forensics” refers to the use of science or technology to investigate and establish facts and evidence in court. A forensic expert is a person with knowledge, training or education and experience who is tasked with giving testimony and providing opinions and conclusions regarding legal action in their chosen area.
Shutterstock / Eightshot_Studio. Forensics, audiology, expert.
Audiologists are trained in acoustics, hearing science, balance, physiology and neurophysiology, localization diagnostics, diseases, disorders and syndromes, teratogenic agents, noise and explosion exposure, head and neck trauma, rehabilitation, standard of care, electronics and hearing aids, and other disciplines. In forensic audiology, the expert often speaks on the relationship between hearing, hearing loss, tinnitus, hyperacusis, balance and auditory processing on injury and causation, employment, access, disability, impairment, disability, rehabilitation and outcome. The opportunities to work in forensic audiology are diverse as the subspecialties of medical audiology, industrial audiology, pediatric audiology, educational audiology, manufacturing, cochlear implants, and rehabilitation have audiences of their own.
Forensic audiology cases encompass the full range of legal concerns, including administrative law (authorities), constitutional law (human rights and civil liberties), labor compensation, civil tort law (personal injury) and criminal law. Audiologists comment on a variety of cases including accidents, assault, OSHA regulations, ADA and discrimination, educational disputes, disability to serve, product liability, hearing aids and other devices, malpractice, criminal activity and more. For the forensic audiologist, this means bringing a level of knowledge, skills and abilities that must meet the highest standards and withstand the examination and legal challenges posed by opposing lawyers, other experts and courts. Experts know that testimonies and reports are being analyzed by other experts in audiology, ENT, neurotology, neurology, psychiatry, psychology, education, and acoustic engineering. In addition, the expert should assume that the opposing attorney will carefully review the audiologist’s résumé, publications, transcripts of previous statements and trials, as well as newspaper interviews, online information, websites, health certificates and reviews. For audiologists with expert level skills, navigating the forensic arena is achievable and challenging.
ARE YOU AN EXPERT?
The first hurdle is to be able to follow the criteria of the Daubert standard. In the legal field, measures of expert status and admissibility for federal and many state courts from the case of the US Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993). From this case the Federal Rule of Evidence 702 was adopted, with several cases further defining this premise. A Daubert challenge by the opposing attorney can take place if it is assumed that the expert did not (a) have scientific, technical or other specialist knowledge to help the person worthy of evidence to understand the evidence or to determine a contentious issue; (b) make statements based on sufficient facts or data; (c) present a testimony that uses sound principles and methodology; and (d) apply the principles and methods reliably to the facts of the case. While these are not surprising requirements for most audiologists, and challenge from an opposing attorney is not typical, challenging one’s competency can be avoided by following some reasonable guidelines. Not all newcomers have the same level of legal experience. An audiologist with years of experience, a well-designed resume, and the right references can be an expert witness.
According to Robert A. Doby, MD, in his book Medical-Legal Evaluation of Hearing Loss (Singular, San Diego, 2001: 393), expert qualifications and codes of conduct should include (a) valid licenses and board certifications; (b) appropriate subject-specific knowledge of the subject; (c) relevant training; (d) engagement in clinical practice in their area of expertise and knowledge of the standard of care; (e) be willing to disclose the percentage of time spent as an expert compared to clinical or research activities; (f) the relationship between plaintiff and defendant cases; and (g) fees. The appraiser should make it clear that either the attorney pays the court fee for the appraiser’s time, not his or her opinion.
PROFESSIONAL & ETHICAL CONSIDERATIONS
A qualified person is expected to be independent, impartial, and not to hold a position or appear biased in legal proceedings. The expert must be ready to disclose the basis for his statements, opinions and conclusions. This includes generally accepted opinions in the field of experts, clinical experience, evidence-based guidelines and the current literature. At no time is it appropriate for an expert to make misleading, untrue or erroneous findings that could lead to criminal prosecution for perjury, civil proceedings for negligence and legal action against his license to practice.
The audiologist must be prepared to cross-examine testimony or in court and provide a level of competence and explanation that codifies the case and meets the educational and informational needs of lawyers, the jury and the court. The expert can be called in by the plaintiff’s or defendant’s legal advisor, but the forensic pathologist must remain independent. The expert should not accept cases where the payment is dependent on a certain outcome. Protecting professional integrity and reputation is critical. Whether a positive or negative opinion is given, that decision is never influenced by the appointing party, and regardless of the consequences, only the facts.
Although clinical fee reimbursement is primarily based on the Medicare Fee Schedule, legal fees do not meet this standard. In contrast, legal protocols, reporting, testimony, court appearances, and liability are outside the requirements of clinical practice and are much more stringent and sometimes controversial. Fees are generally broken down by time in five-minute increments for specific tasks such as legal counseling, file review, patient examinations, reporting, testimony, summary judgment, travel, and educational presentations. In contrast to clinical practice, legal advice is similar to attorney’s fees. Before taking part in legal advice, a fee schedule and a mandate contract should be drawn up and applied. An easy way to track charges by time is to include all testing during the patient exam. To review the proposed medical expert fees and receive training, audiologists can obtain additional information from expert firms.
CREATING THE REPORT
One of the most important aspects of an expert report is the writing of reports. There is a significant difference between the clinical report and the independent doctor’s report. First and foremost, the report should follow a recognized format, present information concisely and draw conclusions with documentation to support the expert’s opinion.
In preparation for an informed statement, the audiologist should review the merits of the case, assess the material facts, review and interpret the available records, make a case-based diagnostic assessment, document salient features, assess the case, provide an opinion, and write one unbiased report. The report must be accurate, informative, educational, and contain a clear opinion so that attorneys can understand, evaluate, and criticize the information. The components of a report are usually based on the reader’s need to understand and evaluate the merits of the case. An example is to start the report with an opinion on the complaint and the expert’s opinion. This is followed by the patient interview, a section that reviews the relevant records, audiological diagnostic results, questionnaire results and interpretation, and then the expert’s conclusions connecting the dots. In order for the court to make an informed decision, a context needs to be given. Next follows a discussion of the claimed problem and a reference to current knowledge, practice, and acceptable research. Once these facts are reported, a review of the patient’s impairment (AMA-WPI; Hearing Journal. 2015; 69; 40. doi: 10.1097 / 01.HJ.0000480890.25214.bb), handicap, handicap and result with or without therapy are critical. This should include estimates for hearing aids, replacement, sound therapy, rehabilitation, annual retests and adjustments, etc., as well as recommendations for CBT or referral to other specialists. In the last paragraph, the case and the expert’s report are briefly repeated. The final component is the bibliography, which supports the conclusions and opinions.
Working in the medical legal field is a rewarding calling for those with specialist knowledge who are looking for a challenge and performance-based pay. As audiologists, we work to help people with scientifically sound methods and principles. We assess the cause, diagnose hearing loss, prescribe treatments, and offer daily counseling and rehabilitation. These skills are beneficial when considering forensic audiology, which can be one of the best practice additions for a trained clinician, teacher, or researcher.