Frontline: outrageous expert testimony
4 views
Skip to first unread message
dpriver
Jul 1, 2011, 1:05:51 PM7/1/11
to Fellowship for Accurate Courtroom Testimony (FACT)
Dear colleagues,
If you did not watch Frontline this week, run, don't walk, to their
web site and watch the 30 minutes segment called "The Child Cases".
You had best be sitting down as you will be appalled and outraged by
what can only be called profound expert witness incompetence. We are
all, of course, disturbed when a colleague's dishonesty on the witness
stand results in an unfair civil tort outcome. It is, however, quite
another matter when it results in a person being sent to jail for many
years for a crime he clearly did not commit. You will learn about a
young father of three in Amarillo, Texas who frequently baby sat for a
local woman OB/GYN's 3 young children. One day, 11 years ago, he found
the 6 month old to be unresponsive. The child died the next day and
the man in question, Ernie Lopez, was arrested and charged with rape
and murder of this baby. He has now been in jail for 8 years. The
upshot of the program was that this child died as a result of DIC,
likely secondary to an infection and which would have been obvious to
anyone who reviewed the medical records of the ER to which the child
was taken. Her WBC was 21,000 and her clotting studies were off the
chart. The medical examiner, a woman by the name of Joni McLain, MD,
testified that the baby died as a result of trauma and sexual assault.
When asked why she didn't review the medical records, she said that
she didn't need to. The case is now on appeal in Texas (a throw-away-
the-key state, as you know). The program brings to light that there is
absolutely no accountability in the field of forensic medicine for
expert testimony. I'm interested in what all of you think we should do
here. Certainly, I'd consider inviting Jon Thogmartin, MD, an ME in
Florida, to join us. He decries the complete dysfunctionality of the
forensic medical field. It is, I think, time that we as a group
ostensibly interested in courtroom honesty, started thinking about
actally doing something about this problem. Let me know your thoughts.
David
If you did not watch Frontline this week, run, don't walk, to their
web site and watch the 30 minutes segment called "The Child Cases".
You had best be sitting down as you will be appalled and outraged by
what can only be called profound expert witness incompetence. We are
all, of course, disturbed when a colleague's dishonesty on the witness
stand results in an unfair civil tort outcome. It is, however, quite
another matter when it results in a person being sent to jail for many
years for a crime he clearly did not commit. You will learn about a
young father of three in Amarillo, Texas who frequently baby sat for a
local woman OB/GYN's 3 young children. One day, 11 years ago, he found
the 6 month old to be unresponsive. The child died the next day and
the man in question, Ernie Lopez, was arrested and charged with rape
and murder of this baby. He has now been in jail for 8 years. The
upshot of the program was that this child died as a result of DIC,
likely secondary to an infection and which would have been obvious to
anyone who reviewed the medical records of the ER to which the child
was taken. Her WBC was 21,000 and her clotting studies were off the
chart. The medical examiner, a woman by the name of Joni McLain, MD,
testified that the baby died as a result of trauma and sexual assault.
When asked why she didn't review the medical records, she said that
she didn't need to. The case is now on appeal in Texas (a throw-away-
the-key state, as you know). The program brings to light that there is
absolutely no accountability in the field of forensic medicine for
expert testimony. I'm interested in what all of you think we should do
here. Certainly, I'd consider inviting Jon Thogmartin, MD, an ME in
Florida, to join us. He decries the complete dysfunctionality of the
forensic medical field. It is, I think, time that we as a group
ostensibly interested in courtroom honesty, started thinking about
actally doing something about this problem. Let me know your thoughts.
David
lbamdjd
Jul 2, 2011, 8:35:18 PM7/2/11
to Fellowship for Accurate Courtroom Testimony (FACT)
David, and group,
Sadly this is just one of many similar cases in the US, the UK, and
Canada. It is almost as if we were back in the European or New
England witchcraft eras, where a parent/caregiver must prove innocence
by impossible means when all of the evidence is in the hands of
prosecutors who don't examine it, and who pay witnesses to say
whatever the prosecutor wants them to say, with assurance of immunity
for the "expert" who is, after all, doing a service for the courts.
There was a recent case in Seattle in which a psychologist was
actually elected President of the APA Forensic Medicine Association
AFTER he had been disciplined by the state board (WA being one of a
very few jurisdictions where EWT is not absolutely immune from
scrutiny by professional boards). He had managed to get the
disciplinary order sealed because of incompetence by the board in
failing to state in the order that he had not actually been charged
with illegality (but rather, incompetence). He suicided after
voyeurism of his employees was revealed, whereafter his EW malfeasance
became known as more victims came forward.
I disagree with David that this is incompetence. The failure to even
examine records before testifying under oath about a medical condition
ascribed to criminal behavior is gross malfeasance, with malevolent
intent (to defraud whomever is paying for the service).
I am reminded of an AMA Council on Ethics and Judicial Affairs meeting
I attended where a prominent Forensic psychiatrist argued that they as
a group were above reproach and even review by anyone; and also for
that matter, of an American College of Law and Medicine conference
where Cyril Wecht, of all people, argued on a panel that the same was
true of pathologists...
Now as to what can be done...abolish expert witness immunity? Good
luck given the makeup of most legislatures. Judge appointed experts?
In custody cases, this is the norm. In the WA case apparently there
was a well established pattern of courts choosing this guy because of
his willingness to say whatever would result in a quick disposition of
custody cases. (Incidentally, he would testify on behalf of the
parent who invested in a financial scheme of his). Get more boards to
discipline more experts? Been there, tried that (NC). Most won't
touch this issue because they are spending all of their resources
fending off Public Citizen's cries that they "aren't disciplining
enough doctors". Abolish fees for expert witness testimony? Uh Huh.
About the only thing that could make a dent in this is enough
publicity about these cases that the person who gets caught in one of
them can find a lawyer willing to expend the effort to defend them
vigorously (where was the defense attorney who didn't even know that
the prosecution's expert had not read the medical records????). And
if they are court appointed defense, well, good luck with that too!
I'm afraid similar cases will continue to surface (and the ones we
hear about are no doubt the tip of the iceberg) as long as it is more
lucrative to provide expert testimony than to practice medicine, and
increasingly as the practice of medicine becomes less and less
enjoyable in this country.
Louise
Sadly this is just one of many similar cases in the US, the UK, and
Canada. It is almost as if we were back in the European or New
England witchcraft eras, where a parent/caregiver must prove innocence
by impossible means when all of the evidence is in the hands of
prosecutors who don't examine it, and who pay witnesses to say
whatever the prosecutor wants them to say, with assurance of immunity
for the "expert" who is, after all, doing a service for the courts.
There was a recent case in Seattle in which a psychologist was
actually elected President of the APA Forensic Medicine Association
AFTER he had been disciplined by the state board (WA being one of a
very few jurisdictions where EWT is not absolutely immune from
scrutiny by professional boards). He had managed to get the
disciplinary order sealed because of incompetence by the board in
failing to state in the order that he had not actually been charged
with illegality (but rather, incompetence). He suicided after
voyeurism of his employees was revealed, whereafter his EW malfeasance
became known as more victims came forward.
I disagree with David that this is incompetence. The failure to even
examine records before testifying under oath about a medical condition
ascribed to criminal behavior is gross malfeasance, with malevolent
intent (to defraud whomever is paying for the service).
I am reminded of an AMA Council on Ethics and Judicial Affairs meeting
I attended where a prominent Forensic psychiatrist argued that they as
a group were above reproach and even review by anyone; and also for
that matter, of an American College of Law and Medicine conference
where Cyril Wecht, of all people, argued on a panel that the same was
true of pathologists...
Now as to what can be done...abolish expert witness immunity? Good
luck given the makeup of most legislatures. Judge appointed experts?
In custody cases, this is the norm. In the WA case apparently there
was a well established pattern of courts choosing this guy because of
his willingness to say whatever would result in a quick disposition of
custody cases. (Incidentally, he would testify on behalf of the
parent who invested in a financial scheme of his). Get more boards to
discipline more experts? Been there, tried that (NC). Most won't
touch this issue because they are spending all of their resources
fending off Public Citizen's cries that they "aren't disciplining
enough doctors". Abolish fees for expert witness testimony? Uh Huh.
About the only thing that could make a dent in this is enough
publicity about these cases that the person who gets caught in one of
them can find a lawyer willing to expend the effort to defend them
vigorously (where was the defense attorney who didn't even know that
the prosecution's expert had not read the medical records????). And
if they are court appointed defense, well, good luck with that too!
I'm afraid similar cases will continue to surface (and the ones we
hear about are no doubt the tip of the iceberg) as long as it is more
lucrative to provide expert testimony than to practice medicine, and
increasingly as the practice of medicine becomes less and less
enjoyable in this country.
Louise
Kenneth Zahl MD
Jul 2, 2011, 9:20:17 PM7/2/11
to fellowship-for-accura...@googlegroups.com
Dear Louise, David and Group
Happy 4th!!
Louise, David, thanks for your informative posts, I had heard part of this on NPR and especially moving is the dad's call to his 16 yo daughter from jail. She had just gotten a car etc, the have the guy about
I am actually presently involved in an appeal of a Federal Judge's Dismissal of my civil suit against the forensic divorce team SoftSplit and other corrupt lawyer/judges in Manhattan. Thus I will not surface for air until July 11th when I file the brief and appendix on appeal, at which point will look for the PBS Frontline
As many on this forum know I had a messy divorce-custody case
My ex's atty, the child law's guardian, the forensic shrink and accountant were all members of the same LLC - so of course I lost custody, then parental visitation rights and got tagged with over $1,000,000 child support (even though ex was the monied spouse) and horrendous legal fees.
In my civil suit, the Judge agreed I could enter default judgment against the SoftSplit corporation (know by their website Softstplit.com) but stayed all discovery in aid of the judgment, which was their corporate books with the money trail of where the revenues went when the got over a million in income. Of course when brought up to the Appellate Division - they were running either a not for profit or "educational website", Then the Federal Judge after staying discovery for a year sat on the complaint another year and dismiss on statute of limitations and other technicalities.
In many cases that I reviewed in NYC, the same forensic (Stephen Herman MD - author "Parent v Parent") perjured himself (some of the mom's taped him during their sessions and he would say other things in his reports/testimony). When the moms complained to the state, the NY OPMC said did not have jurisdiction (as he was an EW). Then the judges in true circular fashion said they did not have jurisdiction or refused to investigate. Now of course when I loose my pro Se appeal they will get have their get-out-of-jail card. Herman (like the guy Louise mentioned) resigned from the APA where he used to give the refresher course on forensic custody evaluations. The APA would not release the details of the number of ethics complaints he had, but apparently since he resigned they were never fully adjudicated.
When my brief is done will advise... but I am reliving the whole disaster over what should be a relaxing holiday weekend with my family and really from a first hand basis know what it is like to have this type of
Best Ken
--
You received this message because you are subscribed to the Google Groups "Fellowship for Accurate Courtroom Testimony (FACT)" group.
To post to this group, send email to fellowship-for-accura...@googlegroups.com.
To unsubscribe from this group, send email to fellowship-for-accurate-cou...@googlegroups.com.
For more options, visit this group at http://groups.google.com/group/fellowship-for-accurate-courtroom-testimony?hl=en.
Kenneth Zahl MD
tel 5704226666
billing office 9739892644
fax office 9739892645
Confidentiality note: The unauthorized disclosure or interception of email is a federal crime; 18 U.S.C. Sec. 2517(4). Warning as this message may be privileged and confidential, if you are not the intended recipient, please notify me via phone above and delete the message. This e-mail message and any attachment to this e-mail message contain information that may be legally privileged and confidential and/or subject to doctor/patient confidentiality. If you are not the intended recipient, you must not review, transmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please immediately notify me by return e-mail or by telephone and then immediately delete this message from your computer.
Judge Thomas
Jul 6, 2011, 1:56:22 PM7/6/11
to Fellowship for Accurate Courtroom Testimony (FACT)
Dear All:
Let me get back on my soapbox with respect to the use of independent
experts. I have had excellent results with the use of independent
experts if at least two things happen. The first is to identify the
case where I need help and there is a divergence of opinion between
the expert for the plaintiff and the expert for the defendant.
Second, and critically important to the process, is to have help in
identifying the expert. In Tennessee we use the Tennessee Medical
Association to suggest a list of three experts. If the parties can
agree to one of the three, I use that expert. If they cannot, I make
the selection, knowing that the three that have been recommended have
the confidence of their peers. I have used this process in four
cases, and the result is that the case was either voluntarily
dismissed by the plaintiff or was settled. I hope that this process
will give you some confidence in our judicial system.
Neil Thomas
Let me get back on my soapbox with respect to the use of independent
experts. I have had excellent results with the use of independent
experts if at least two things happen. The first is to identify the
case where I need help and there is a divergence of opinion between
the expert for the plaintiff and the expert for the defendant.
Second, and critically important to the process, is to have help in
identifying the expert. In Tennessee we use the Tennessee Medical
Association to suggest a list of three experts. If the parties can
agree to one of the three, I use that expert. If they cannot, I make
the selection, knowing that the three that have been recommended have
the confidence of their peers. I have used this process in four
cases, and the result is that the case was either voluntarily
dismissed by the plaintiff or was settled. I hope that this process
will give you some confidence in our judicial system.
Neil Thomas
Judge Thomas
Jul 11, 2011, 10:13:46 AM7/11/11
to Fellowship for Accurate Courtroom Testimony (FACT)
In response to Louise and Arnie, I have heard practitioners complain
of the Ivory Tower Opinion expressed by experts who are not in the
trenches. I do not know how to deal with that issue. If trial
judges, who are truly stuck in the middle, do not have an organization
to whom they can request a referral, to whom do we go? I do not like
the federally approved system which lets the trial judge go to a
"buddy" and confer with him or her in private about the issue in the
case. With respect to the use of State Bar Associations for
recommendations, I am afraid that avenue would have absolutely no
credibility with the plaintiff's bar. State Bar Associations are
viewed as defense organizations while the trial lawyers' organizations
are generally viewed as organizations for the plaintiff. I am still
stuck.
Neil
> > David- Hide quoted text -
>
> - Show quoted text -
of the Ivory Tower Opinion expressed by experts who are not in the
trenches. I do not know how to deal with that issue. If trial
judges, who are truly stuck in the middle, do not have an organization
to whom they can request a referral, to whom do we go? I do not like
the federally approved system which lets the trial judge go to a
"buddy" and confer with him or her in private about the issue in the
case. With respect to the use of State Bar Associations for
recommendations, I am afraid that avenue would have absolutely no
credibility with the plaintiff's bar. State Bar Associations are
viewed as defense organizations while the trial lawyers' organizations
are generally viewed as organizations for the plaintiff. I am still
stuck.
Neil
>
> - Show quoted text -
Arnold Cohen
Jul 11, 2011, 10:21:18 AM7/11/11
to Fellowship for Accurate Courtroom Testimony (FACT)
I understand your concern about the "Ivory Tower" review but I can tell you that a Chairman of a Department deals not only with the Ivory Tower medicine but with all types of medicine. My concern actually would be that the Chairman may be too lenient BUT the reality is that if the chairman would read the report and see outrageous statements that do occur or personal opinions rather than evidence based or standard practice, he or she would not want that to go out because it hurts the integrity of his/her department.
Arnie
Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands
Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993
coh...@einstein.edu
This message is intended for the use of the person or entity to which it is addressed and may contain information that is privileged and confidential, the disclosure of which is governed by applicable law. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any disclosure, copying, or distribution of this information is strictly prohibited. If you have received this message by error, please notify the sender immediately to arrange for return or destruction of these documents.
Reply all
Reply to author
Forward
0 new messages