On the issue of flawed medical expert evidence and therefore miscarriages of justice, Kevin Doan believes that there is an opportunity to save tens, if not hundreds, of millions of dollars a year by eliminating improper expert evidence in the various areas of the justice system including family law, land-use planning, and injury and disability law. Below is an article touching on the issue of flawed medical evidence in the injury justice system, first published in the Lawyers Weekly, a newspaper for the legal profession, on November 6, 2015:
"With expert witness, less may be more" by Kevin Doan, C.S.
Much of current medical expert evidence in personal injury cases is superficial, speculative and unnecessary. This article briefly highlights some reasons for the growth of improper expert evidence along with two promising grounds to reel in the runaway expert train.
We are mindful of the Charles Smith saga that resulted in a grave miscarriage of criminal justice (Dr. Charles Smith testified for the Crown in more than a dozen cases and helped to wrongfully convict innocent people of killing the young children under their care). In his final report (Inquiry into Pediatric Forensic Pathology in Ontario), commissioner Stephen Goudge stated that Smith gave “inappropriately unscientific” and “speculative evidence,” among other things. He reminds us that experts “are not given free rein to discuss other matters on which they happen to have an opinion.”
To illustrate the superficial and speculative nature, let us examine some major disputes where expert evidence is invariably tendered. The focus of the inquiry here is whether or not there is a required expertise and a required expert reasoning process to underpin the expert opinions. For explanations set out below, I conclude that what we find is a plain black box with no expertise inside. Here are some typical disputes:
1. Does the plaintiff “reasonably require” 24/7 supervisory care?
2. Is the plaintiff suffering a “complete inability to carry on a normal life?”
3. Is the plaintiff suffering a “complete inability to engage in any employment for which she is reasonably suited by education, training or experience?”
4. Has the plaintiff sustained “permanent serious impairment of an important physical, mental or psychological function?”
The dispute on 24/7 supervision is typically the largest head of damages in a severe brain injury case. In a typical case, the victim makes a remarkable recovery but still suffers serious cognitive impairments at the time of trial. He is not wheelchair-dependent and can walk, talk, drive, and engage in intimate relationships. Does he reasonably need round-the-clock supervision?
It must be noted that the dispute is not about the causation of brain injuries and related cognitive impairments. Such causation is rarely in dispute. The real dispute is as framed, and the key underlying issue is whether or not the victim suffers a sufficient degree of disability to warrant the finding that 24-hour supervision is “reasonably required.”
The question directed at the experts is one of an unusual nature. It mixes facts and law. But what makes it even more unusual is that the key facts are not static but dynamic — an always moving target, largely dependent on an assessment of credibility of the victim under the total circumstances of the case.
The expert is, in essence, asked to assess three things concurrently to render an opinion: credibility, facts, and applicable law. This formula is problematic as it injects much subjectivity and confusion into the process. First, an assessment of credibility is part of the daily functions and hence the ordinary knowledge of the adjudicator. This is not a task where expert assistance is necessary. Furthermore, even if permitted, an assessment of credibility by an expert is grossly incomplete because he or she does not have access to the totality of the evidence in the case, including cross examinations at trial, before rendering a report. Second, an assessment of complex applicable legal standards with convoluted interpretations is similarly a task for adjudicators, not for medical witnesses.
Last, but not least, is the complete lack of any expert reasoning process engaged by the experts. Let me explain. A neuropsychologist, for example, testifies first as to the nature of the trauma, the location of the injuries to the brain, and the resultant types of impairments such as memory and executive functioning. Eventually, the expert leaps to support or to deny 24/7 supervision. My question is just how, precisely, does the expert leap to this opinion? If it was a negative opinion, is it because there were only two incidents over the five years preceding trial where the victim forgot to turn off the stove? What if there were five or seven incidents of risky behaviour? Would 10 incidents be sufficient? Maybe still not, but what about 50? Where is the expert reasoning process in all of this to underpin the expert opinion? In my view, the opinion is just an ordinary feeling, belief or opinion the expert happens to have. There is no expertise behind this leap but only a black box with nothing beyond the ordinary knowledge of an adjudicator.
The foregoing analysis can be similarly applied to the remaining issues listed above, and many more in injury law. Briefly, as to the verbal threshold issue 4 above, do we need a medical witness to enlighten us as to what constitutes “serious,” seriously?
In R. v. Mohan, the Supreme Court of Canada sets out the substantive requirements for admissibility of opinion evidence, namely relevance, necessity, no exclusionary rule, and properly qualified expert. In the foregoing analysis, “necessity” and “properly qualified expert” appear to be the two promising grounds to reel in the runaway billion-dollar expert train, and in the process save an untold number expert-induced miscarriages of injury justice."
"With expert witness, less may be more" by Kevin Doan, C.S.
Much of current medical expert evidence in personal injury cases is superficial, speculative and unnecessary. This article briefly highlights some reasons for the growth of improper expert evidence along with two promising grounds to reel in the runaway expert train.
We are mindful of the Charles Smith saga that resulted in a grave miscarriage of criminal justice (Dr. Charles Smith testified for the Crown in more than a dozen cases and helped to wrongfully convict innocent people of killing the young children under their care). In his final report (Inquiry into Pediatric Forensic Pathology in Ontario), commissioner Stephen Goudge stated that Smith gave “inappropriately unscientific” and “speculative evidence,” among other things. He reminds us that experts “are not given free rein to discuss other matters on which they happen to have an opinion.”
To illustrate the superficial and speculative nature, let us examine some major disputes where expert evidence is invariably tendered. The focus of the inquiry here is whether or not there is a required expertise and a required expert reasoning process to underpin the expert opinions. For explanations set out below, I conclude that what we find is a plain black box with no expertise inside. Here are some typical disputes:
1. Does the plaintiff “reasonably require” 24/7 supervisory care?
2. Is the plaintiff suffering a “complete inability to carry on a normal life?”
3. Is the plaintiff suffering a “complete inability to engage in any employment for which she is reasonably suited by education, training or experience?”
4. Has the plaintiff sustained “permanent serious impairment of an important physical, mental or psychological function?”
The dispute on 24/7 supervision is typically the largest head of damages in a severe brain injury case. In a typical case, the victim makes a remarkable recovery but still suffers serious cognitive impairments at the time of trial. He is not wheelchair-dependent and can walk, talk, drive, and engage in intimate relationships. Does he reasonably need round-the-clock supervision?
It must be noted that the dispute is not about the causation of brain injuries and related cognitive impairments. Such causation is rarely in dispute. The real dispute is as framed, and the key underlying issue is whether or not the victim suffers a sufficient degree of disability to warrant the finding that 24-hour supervision is “reasonably required.”
The question directed at the experts is one of an unusual nature. It mixes facts and law. But what makes it even more unusual is that the key facts are not static but dynamic — an always moving target, largely dependent on an assessment of credibility of the victim under the total circumstances of the case.
The expert is, in essence, asked to assess three things concurrently to render an opinion: credibility, facts, and applicable law. This formula is problematic as it injects much subjectivity and confusion into the process. First, an assessment of credibility is part of the daily functions and hence the ordinary knowledge of the adjudicator. This is not a task where expert assistance is necessary. Furthermore, even if permitted, an assessment of credibility by an expert is grossly incomplete because he or she does not have access to the totality of the evidence in the case, including cross examinations at trial, before rendering a report. Second, an assessment of complex applicable legal standards with convoluted interpretations is similarly a task for adjudicators, not for medical witnesses.
Last, but not least, is the complete lack of any expert reasoning process engaged by the experts. Let me explain. A neuropsychologist, for example, testifies first as to the nature of the trauma, the location of the injuries to the brain, and the resultant types of impairments such as memory and executive functioning. Eventually, the expert leaps to support or to deny 24/7 supervision. My question is just how, precisely, does the expert leap to this opinion? If it was a negative opinion, is it because there were only two incidents over the five years preceding trial where the victim forgot to turn off the stove? What if there were five or seven incidents of risky behaviour? Would 10 incidents be sufficient? Maybe still not, but what about 50? Where is the expert reasoning process in all of this to underpin the expert opinion? In my view, the opinion is just an ordinary feeling, belief or opinion the expert happens to have. There is no expertise behind this leap but only a black box with nothing beyond the ordinary knowledge of an adjudicator.
The foregoing analysis can be similarly applied to the remaining issues listed above, and many more in injury law. Briefly, as to the verbal threshold issue 4 above, do we need a medical witness to enlighten us as to what constitutes “serious,” seriously?
In R. v. Mohan, the Supreme Court of Canada sets out the substantive requirements for admissibility of opinion evidence, namely relevance, necessity, no exclusionary rule, and properly qualified expert. In the foregoing analysis, “necessity” and “properly qualified expert” appear to be the two promising grounds to reel in the runaway billion-dollar expert train, and in the process save an untold number expert-induced miscarriages of injury justice."