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Emerald Group Publishing Limited
Copyright © 2012, Emerald Group Publishing Limited
Facing the facts
Article Type: Editorial part 2 From: International Journal of Prisoner Health, Volume 8, Issue 3/4
The practice of clinical medicine is an art, however minimized in our era of science and technology. The term “practice” implies repeated performance. The term “clinical” implies objectivity at the bedside. In the clinical practice of medicine, the physician is expected to be trained, experienced, and objective. The excellent physician is at once dispassionate and nonjudgmental, whilst maintaining empathy with patients. One of the principle precepts of modern medicine is primum non nocere (first, do no harm), in the Hippocratic tradition that has served as a guide to physicians for more than two millennia. In medical ethics, this is referred to as non-maleficence.
The art of modern medicine, of course, is founded on basic scientific research, clinical research, population-based studies, and technologic innovation where each inform us on prevention, diagnosis, and treatment. The art is the custom tailoring of science to the individual patient, for the patient’s benefit. The ethic here is beneficence.
Artists of any sort, develop their skills through training (self or didactic) and repetition to fine-tune their skills. In the healing professions, the precepts of non-maleficence and beneficence are joined by expectations for autonomy and veracity. Clinicians are also expected to practice within the laws of their jurisdiction.
Testimony during legal proceedings is used to assist coroners, judges and juries in their task of enforcing laws, whether this is local, national, or international. Courts rely on witnesses to assist in the determination of facts as a basis for judgment on causation, responsibility, and remedy. In this issue of IJPH, Nat Wright, Charlotte Tompkins and Zanib Mohammed discuss the negative effects of physician examination and cross-examination in coroners’ inquests following in-custody deaths in the UK (Wright et al., 2012). The authors discuss the stress caused by physicians’ unfamiliarity with legal proceedings. The authors recommend training and redirection of lawyer questioning through the coroner.
As we are not trained in the legal process during our professional education, physicians are typically reluctant to testify in legal proceedings. Physicians typically do not understand the legal basis for the inquiry and testimony. In addition, as physicians are selected and trained in medical autonomy, they may feel challenged and defensive, reacting with resistance to a perceived attack. Defensiveness, as an emotional reaction, is quite different from the logical defense of an individual clinical decision.
The role of a fact witness is to answer questions on the who, what, where, and why regarding the care of individual patients. In contrast to the role of a fact witness, expert witnesses are retained by the court or one of the parties in litigation to form expert opinions that might address causation or the standard of care in prisons. Expert witnesses may also be asked to form an opinion as to whether the care provided conformed to a law, from a medical standpoint.
Aside from lack of training, physicians are not typically experienced in providing sworn testimony. They do not have experience in responding to questions that are naïve, or sometimes confrontational. During litigation, some lawyers work to rattle a witness, with the thought that this will uncover vulnerabilities or inconsistencies. No wonder the witnesses are stressed. Within a legal proceeding, health professionals are outside their normal venue. Questions at inquests or trials must be asked and answered. These inquiries do not threaten medical autonomy. They are retrospective and simply call for transparency.
It would not be prudent to “professionalise” the provision of sworn testimony for fact witnesses. Nevertheless, physicians and other health professionals can develop comfort with judicial procedures just as they do with new medical procedures. Short training programs can provide the methodology and legal basis, just as training in the science and technology that underlies new diagnostic and treatment modalities. Training in the practice of giving sworn testimony can be enhanced with simple case studies and simulated proceedings. With training and practice, health professionals can provide needed input to legitimate judicial proceedings without any more anxiety than when practicing their art.
Providing sworn testimony can be stressful. In my experience, that stress can be reduced by careful preparation. Answers should be concise, without straying from the question at hand, and based on facts. Speculation should be avoided, as should “blaming the victim.” While an expert witness should expect questions that test credibility (background and experience) and reliability (consistency of testimony in the instant case and across prior testimony), fact witnesses are not expected to “prove themselves” in this manner. Fact witnesses are not expected to form or defend conclusions or opinions.
Since a fact witness is not expected to form opinions on the standard of care, responding to inquiry into in-custody deaths need not be negative. To the contrary, participation in judicial inquiry helps physicians and other health professionals broaden their contributions to society.
The author is Co-Editor of the IJPH. He has provided sworn testimony on approximately 60 occasions, in depositions and/or at trial as an expert witness on in-custody medical care and mortalities
Robert B. Greifinger