Risks, Responsibilities and Liabilities

Risks, Responsibilities and Liabilities 2

2.1 Basic Principles 7 2.1.1 Identity of the Victim 8 2.1.2 Manner of Death 8 2.1.3 Cause of Death 8 2.1.4 Process of Dying 9 2.1.5 Causation 10

2.1.5.1 German Theories of Causation 10 2.1.5.2 American Theories of Causation 10

2.2 Role of Expertise and Expert Witness 11 2.2.1 Definition: Expert Witness 11

2.2.2 Standards in (the American) Court 11 2.2.3 Function of Expert Witness 12 2.2.4 Probability of Expert Opinion 12

Bibliography 12

References 12

The formal tasks that forensic pathologists and neu- ropathologists are asked to perform in the courts vary from country to country according to conven- tion and statute, and will therefore not be dealt with in detail here. For details on the role of expert foren- sic witnesses in U.S. courts, the reader is referred to Leestma and Magee (1988), and for the English sys- tem to Knight (1996). In all different countries the forensic pathologist/neuropathologist is account- able primarily to legal authorities, i.e., the judiciary, lawyers, and/or public prosecutors. But they cannot avoid an additional, specifically medical/ethical re- sponsibility, which extends to questions of experi- mental neuropathology and neurology, i.e., the use of certain experimental diagnostic and therapeutic methods, and to civil and political actions such as maltreatment and torture.

To our knowledge, no legal system in the world places physicians as physicians under the threat of civil liability. Physicians, therefore, are subject to the general rules of liability, with the effect that modern laws of medical liability are a part of case law created by the courts in most countries.

Beyond this formal task, a second justification forms the basis of the forensic physician’s conception of his efforts: the prevention of unnatural death as

well as the prevention of injury as a result of maltreat- ment and torture. Unnatural deaths are preventable and therefore − of course − of eminent interest in the field of (forensic) medicine. Recognition of violence, maltreatment, and torture is an especially important task of the forensic physician (Oehmichen 1999; Hall 2000; Barnett 2001), who is duty-bound to undertake all measures necessary to prevent these forms of vio- lent injury before they result in death. Even if such a case has ended in death, measures must be taken to prevent others from becoming further victims. The appropriate civil and/or law enforcement agencies must be informed, and, in certain circumstances, the public itself. This duty must be fulfilled not only in cases of violence and maltreatment within a family or specific social group, but also in cases of malt- reatment on the part of the police, prison guards, and/or the public prosecutor’s office. Such a task is of particular importance − and entails real risks − in countries where torture is still officially tolerated.

If violence, maltreatment or torture is observed or suspected, the physician − even the forensic neuro- pathologist − is obliged to register a protest from the medical point of view.

2.1

Basic Principles

The forensic neuropathologist is asked to examine cases classified as “unnatural death.” In the United States and Germany, medically attended patients dying of natural causes can be autopsied only with permission of the next of kin. Official autopsies can be performed at the discretion of a forensic patholo- gist under the following circumstances (cf. Helpern 1977):

1. Sudden and unexpected death of persons in ap- parently good health

2. Cases involving evidence or suspicion of violent death, especially of accident, suicide or homicide 3. Deaths resulting from suspected medical mal-

practice and/or negligence

4. Deaths occurring during incarceration or while

in police or institutional custody

5. Death at the workplace or due to toxic agents 6. Cases of death involving victims of unknown

identity

7. Cases in which tissue loss due to decay and ani- mal activity is so extensive that the victim‘s iden- tity is unknown and neither the cause nor type of death can be established without autopsy

Many countries allow forensic autopsies if there is re- ason to believe that violence or poisoning has played a role in the death, or if there is evidence or suspicion of a criminal event. In most countries however aut- opsies are not allowed even in cases of violent death known to be purely accidental.

In autopsies of such cases the forensic patholo- gist, neuropathologist, toxicologist, molecular bio- logist or physicist must address the following issues depending on the nature of the case:

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Identity of the victim

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Manner of death (natural or unnatural death)

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Cause of death

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Process of dying (reconstruction of the process)

▬

Causality linking an event with death

The forensic neuropathologist can be asked to give an opinion on at least some of these issues. The indi- vidual points can be commented on as follows.

2.1.1

Identity of the Victim

The forensic neuropathologist is not often asked to establish identity, a task usually left to the expertise of the medical examiner or forensic pathologist. The forensic neuropathologist can however be asked to determine whether a mix-up has occurred in surgi- cal or biopsy material from a neurological or neu- rosurgical clinic or from an institute of pathology.

The identity of a biopsy specimen can be established by DNA analysis of the specimen by a molecular bi- ologist. Only rarely must brain tissue be identified, following train accidents for example, or massive ex- plosions with multiple casualties (the result of indus- trial accidents or terrorist attacks). Sometimes brain tissue can provide evidence that violent injury has indeed occurred (Oehmichen et al. 1984). In all such cases DNA analysis is now the investigative method of choice.

2.1.2

Manner of Death

A strict distinction must be made between the man- ner and the cause of a death. The manner of death differentiates between natural and unnatural death, and will give further information on the mechanisms

of deaths: accident, suicide or homicide. The cause of death also defines the cause of the irreversible cardi- ac and respiratory arrest or of the respirator brain. As already mentioned, the accused and their legal coun- cil (and the civil authorities) are often only interes- ted in an autopsy when an unnatural death has been certified or is suspected. In most cases, however, an autopsy − at least in Germany − is only performed if a criminal act by a third party is suspected or known to have led to the death. Even if the manner of death is usually determined by a pathologist at autopsy, in up to 10% of cases a forensic neuropathologist has to make this determination.

A distinction must always be made between the following manners of death:

1. Accidental death. The most common cause of accidental death in affluent Western societies is traffic accidents, the fatality often caused by me- chanical brain injury; accidental deaths in the workplace are comparatively rare. Such deaths usually involve the sequelae of traumatic blunt impact, the death sometimes occurring after lengthy hospitalization and resulting from se- condary complications.

2. Suicide. Death from suicide can result from brain injury caused by mechanical violence, due to a gunshot or fall for example, intoxication/poiso- ning (parathion, heroin, arsenic), electric shock, ischemic effects, etc.

3. Homicide. A distinction is made between mur- der and manslaughter. Depending on the type of weapon and cause of death, the victim can die of primary cerebral functional failure due to a blow to the head for example, of ischemia of the brain, of poisoning by centrally active drugs, or of se- condary functional failure, such as acute blood loss, fat embolism, etc.

In some cases not even an autopsy can establish with certainty that the death was a suicide, accident, or homicide; this is especially common in drug-related deaths, or deaths associated with autoerotic manipu- lation.

2.1.3

Cause of Death

After performing an autopsy the neuropathologist, in cooperation with the pathologist, must certify the cause of death (for review see Black and Graham 2000). Among the neuropathologically relevant cau- ses of death are intracranial processes such as poiso- ning that can lead to primary functional failure of the brain. An intracranial process can also be a sec- ondary cause of fatal respiratory and cardiac arrest.

Not every intracranial process (bleeding, inflamma-

tion, tumor, etc.), of course, is itself sufficient to exp-

lain a “central” death. The extent of the changes und- oubtedly plays a major role. An irreversible cardiac arrest may be explained by brain edema with dis- turbances of brain stem function, the disturbances occurring secondary to “herniation” or brain stem hemorrhages, edema-induced generalized hypoxia or ischemia, etc. And lastly, extracranial processes can influence brain function and lead to death (cf.

also Leestma 1988). The following is to be added in detail:

1. Primary functional failure of the brain associated with intracranial processes is generally the result of the following mechanisms:

− Primary toxic effects (e.g., cyanide‘s effect on the central nervous system).

− Primary ischemic effects.

− Mass effects (intracranial hemorrhage, ede- ma, etc.).

− Primary mechanical effects causing diffuse axonal injury (DAI) and/or injury of multiple blood vessels and/or acute disturbance of the blood−brain barrier (acute edema).

2. Neurally mediated death is associated with the following events:

− Brain stem hemorrhage secondary to hernia- tion.

− Neural discharges may reach the heart via the hypothalamus and autonomic centers of the brain stem. Parasympathetic impulses may briefly stop the heart while sympathetic discharges increase heart blood volume and blood pressure, with supervening arrhyth- mia, the most serious type being ventricular fibrillation, which can lead to a fatal outcome.

The effect of environmental stress on cardiac dysfunction was reviewed by Natelson (1985).

A more recent survey is given by Cechetto (2000) who listed three regions of the fore- brain that are intimately involved in central control of the cardiovascular system. These regions are the mediators of the cardiovascu- lar consequences of stroke and stress, and li- kely play a significant role in pathologies such as sudden cardiac death. The insular cortex, the infralimbic cortex, and the amygdala are the anatomical structures that influence the cardiac function. Moreover, a sudden cate- cholamine release is obviously able to induce a sudden unexpected cardiac arrest (Pedal et al. 1999; Kernbach-Wighton et al. 2003).

− Disruption of respiratory control may induce Cheyne−Stokes breathing (alternating hyper- pnea and apnea) and respiratory arrest. Among the possible causes are intoxication (heroin), DAI associated with closed head injury, and disruptive or destructive lesions deep to the cortex as in large basal ganglia or subcortical regions. Finally, total respiratory failure can

result from downregulation of the respiratory centers secondary to brain stem trauma, brain stem herniation or neural shock.

− Neurogenic pulmonary edema and congestion are observed especially following head trau- ma and can develop extremely rapidly.

− Patients in a vegetative state often suffer sud- den unexpected death. Such deaths can be caused by neural (electric) discharges or se- condary diseases such as aspiration pneumo- nia or sepsis.

− A

vessels and thus to low blood volume, which in turn can result in inadequate blood supply to the brain and heart. This phenomenon is asso- ciated with acute spinal trauma for example.

3. Extracranial processes can lead to functional fai- lure of the brain as follows:

− Low blood volume and/or blood loss resulting in insufficient oxygen supply to the brain.

− Hypoglycemia associated with diabetes melli- tus or insulin overdose.

− Hyperthermia due to fever or excessive ambi- ent heat can lead to death via brain edema and congestion.

− Toxins. Potentiation of the mechanisms de- scribed here may occur if the brain is simulta- neously assaulted by toxins from, for examp- le, an infection.

2.1.4

Process of Dying

If the death is not sudden and readily explained by massive blood loss or brain stem destruction due, for example, to gunshot injury, reconstruction of the let- hal process can be difficult. The following questions arise and may require a forensic-neuropathological answer:

1. How long did the victim survive the traumatic event? This can often provide clues regarding the cause − and thus, the course − of the traumatic event. Estimation of the survival time (dating) is therefore of major importance for the forensic neuropathologist.

2. If the survival time is known and if the victim was treated in hospital, the question arises as to how the

“lethal” course can be explained despite the medi-

cal treatment. If, as often happens, the victim has

survived for months or years, it can be difficult to

demonstrate an unbroken causal chain connecting

the traumatic event with the death (see below) or,

conversely, to demonstrate a clear break in the cau-

sal chain. The latter eventuality can be assumed if

it can be shown, for example, that the death was

the result of serious malpractice or neglect on the

part of the attending physicians or nursing staff.

3. If the cerebral injuries are comparatively mi- nor, the same questions arise as discussed under

“Cause of Death.” What event led ultimately to death, and what is the pathophysiological expla- nation of the lethal process? Did the injury indu- ced by the external event contribute to the lethal course at all?

4. In deaths following long survival times, the ques- tion always arises as to whether death might have occurred even in the absence of the traumatic event. This question, however, anticipates the next topic, Causation.

2.1.5 Causation

The following determinations must be made right at the start (Dawidoff 1977; Leithoff 1992).

The assessment of a possible relationship between a particular event and its effect has to begin with a definition of causation. The legal definition of “cau- se” differs from the scientific definition (factual cau- se vs. actual cause), the latter encompassing a much broader spectrum not restricted by legal theories of justice and expediency. The medical definition of causation is based on “natural” correlations and is deduced from the knowledge of a physical effect of an external event on the human body and its resulting organic or functional disorders (Zülch 1969). The ju- ridical definition depends upon “artificial” correla- tions set by people through regulations and laws. In this case, the event must be the “main and essential”

cause of the effects. To define one cause as main and essential presupposes that its action must be so pro- minent that without its effects the lesion ought not to have arisen at all nor else with the same speed of development nor to the same degree. There can be a wide-ranging debate as to whether a particular event produced or contributed to a particular result.

Like all legal concepts, the term “causation” is ap- plied with an aim to guiding activity and redressing grievance by representing a consequence of factual activity in terms of a doctrine supporting the law‘s purposes. Even when there is factual and legal cause of action, the other elements of a cause of action − breach of duty and damages − must coexist for the defendant to be liable to the plaintiff. Moreover, the cause must be of the type that has been recognized within the confines of the particular legal theory that forms the basis of the plaintiff‘s complaint. Law, like other disciplines, deals with behavior in accor- dance with its own purposes and objectives, which are specifically reflected in its theory of causation.

The same state of affairs can be subject to the diffe- ring standards of proof in civil law or criminal law.

Different types of causation can be cited depen- ding on the type of legal proceeding, the theories

underlying German legal practice differing from those of other countries. The expert has to avoid

“putative” causes of diseases and injuries. Like the general public, judges and juries learn of the purpor- ted facts surrounding a case from broadcast and pu- blished news sources, the internet, etc. Such sources also report the results of scientific studies and may highlight public concerns regarding environmental exposure to toxic material from hazardous waste si- tes, chemical spills, or from electromagnetic fields created by power lines, or reported high cancer rates in specific places (Erdreich 1999). In German law the statement of different degrees of likelihood of causal relation may be “certain” (indubitable), “likely” or

“possible” (see below, p. 12).

The American as well as the German legal system makes a clear distinction between civil and crimi- nal malfeasance by providing separate legal procee- dings and distinct legal responses to the two types of wrongdoing (Finkelstein 2002). In practice, the distinction looks something like this: in civil law, a private party brings a civil action against another party to seek compensation for an unintentional harm caused unlawfully by another party, whereas in criminal law the State brings a criminal action against a person for a deliberate offense against the community. Civil actions are pursued in civil courts and are governed by rules of civil procedure and con- stitutional provisions relating to civil cases. Criminal actions are tried in criminal courts and are governed by rules of criminal procedure and by a larger num- ber of constitutional provisions. Civil actions seek civil remedies (pecuniary damages or injunctions), whereas criminal actions seek distinctive criminal punishments (imprisonment or the death penalty).

2.1.5.1

German Theories of Causation

Theory of necessary condition in criminal law: ne- cessary conditions are those conditions (e.g., a blow) without which a given event (e.g., death or injury) cannot have happened (conditio sine qua non). The standard of evidence demands certainty or “proba- bility bordering on certainty” that the death or inju- ry, for example, was the result of the purported act.

Theory of adequate cause in tort law: only that condition which it is reasonable to assume was in it- self sufficient to cause a given event is regarded as causal. A person cannot be held liable for an entirely unusual, unpredictable course of events.

2.1.5.2

American Theories of Causation (Moore 2002)

The criminal law contains several thousand prohi-

bitions and requirements embodied in statutes that

either prohibit citizens from causing certain results

or require them to cause certain results. Causation enters into both the prohibitions and the require- ments and is thus central to criminal liability.

The so-called proximate cause, acting as it may have in combination with many other causes, is in essence something without which the event would not have happened (Palsgraf v. Long Island R.R.

248 N.Y. 339−356. 162 NE 99−105, 1928). Proximate cause refers to nearness in the order of responsible causation. Thus, the law establishes a point of cau- sal proximity to the event in question that reflects legal concepts of responsibility, retribution, and de- terrence. Proximate cause favors plaintiffs because it leaves ample room for acts to be causally linked to injury. In establishing proximate cause, the issue of negligence or wrongdoing is decided first, the ques- tion of responsible cause is then addressed as a per- ceptibly separate issue. In qualifying causation, the term “proximate cause” is used alternatively with the term “direct cause.”

In essence, tort law has but one injunction: do not act so as to cause harm to another. Such an injunc- tion places greater weight on causation while at the same time leaving open a broader range of questions regarding causality than does criminal law, such as

“Do not intentionally hit another [person].”

2.2

Role of Expertise and Expert Witness

2.2.1

Definition: Expert Witness

Matson (1999) defines the expert witness as follows:

the evidence given by the medical expert should be objective, the independent product of expertise un- influenced by the exigencies of the litigation.

This definition is accepted in both the Anglo- American tradition and in Germany. The task of the expert witness in Germany is described in detail by Martens (1999), who also briefly describes the dif- ferences of definition between Germany and other countries. On the other hand, however, there are distinct differences in the expert witness‘ tasks in court.

2.2.2

Standards in (the American) Court

A basic tenet of American legal practice is its insis- tence that information is sought from the most reli- able sources at trial. American law however has also long recognized that many human undertakings in- volve complex disciplines which the lay person can

scarcely hope to understand without guidance from experts. Courts require that such expert witnesses have sufficient expertise in the field in question that their opinion will help the fact finder to arrive at a decision. While courts may rule that a member of a given profession (such as medicine or pharmacolo- gy) should serve as an expert witness, they do not always require a specialist from a particular field, however much such expertise may be desired.

Expert opinion regarding mechanical brain in- jury (MBI) is generally based on postmortem mor- phology or on intravital computed tomography (CT) scans, x-rays, electroencephalographs (EEG), and magnetic resonance imaging (MRI). Cognitive defi- cits in a victim of MBI are often revealed by neuro- psychological testing where more traditional testing, such as routine neurological examination, x-rays, CT scans, and MRIs, failed to document organic impair- ment. Neuropathological evidence of impairment can be presented in court to demonstrate the mor- phological consequences of a lethal traumatic event.

If the medical evidence poses apparent difficul- ties, the pre-trial period is the proper time to clarify and define scientific matters of direct forensic in- terest (Shepherd 1993). This may prove difficult in practice, however, and the following discusses some of the issues that may arise (Roberts 1999):

▬

Before the case reaches court, undue reliance may be placed on medical evidence that is not in fact as strong as prosecutors or the defense believe (or have been led to believe by experts).

▬

Once in court, these deficiencies in the medical evidence may be exposed; for example, if a physi- cian relies too dogmatically on evidence adduced from an examination while failing to acknow- ledge other, equally likely, explanations of the findings.

▬

After the court proceedings, problems can arise, not least for the victims.

The medical expert‘s main task is to provide guidance and assistance to the court in rendering a scientifi- cally tenable decision (Weinstein 1999).

Among the surveys of the tasks of the expert wit- ness in court are those of Myers (2001) and Shevell (2001). In most cases, the candidate expert is put in the witness stand to answer questions about his edu- cational accomplishments, specialized training, and relevant experience. The judge must be convinced that the candidate possesses sufficient expertise to

If counsel requests, the expert must set out the basis for his opinion in an expert‘s written report.

This report must include:

1. Explicit identification of the purposes for which the report has been prepared

2. A statement of the expert‘s own expertise and

credentials that warrant expert status

3. A list of the materials and documents upon which the opinion is based

4. A review and chronology of the facts of the case under question

5. The expert‘s assessment and conclusions regar- ding the relevant questions at issue in the case Assessment of the expert‘s competence must inclu- de the question of whether the expert has paid due regard to all relevant facts in formulating the opini- on; whether the expert‘s understanding of pertinent clinical and scientific principles was adequate; whe- ther the expert used appropriate, reliable, and valid methods of inquiry; whether the expert offered re- asonable assumptions and conclusions based on the facts; whether the expert was reasonably objective.

The main issue is whether the expert‘s reasoning is consistent, logical, and reasonably objective.

2.2.3

Function of Expert Witness

Expert testimony fulfils four separate functions, but the expert witness can only testify with regard to areas in which he is qualified (Matson 1999):

1. Factual witness. The expert witness is asked to testify regarding what could be observed at first hand. The witness may, for example, study the documentation in the case and testify as to what portions bear directly on the issue in question.

2. Interpretation of the facts. The expert witness is asked to explain the cause-and-effect relation- ships tying the data and/or facts of the case to- gether. Correlating an apparent cause and effect link without theoretical justification is not re- commended.

3. Comments on the opposing expert‘s facts and

German courts, but is a part of the Anglo-Ameri- can legal traditions.

4. Definition of the professional standards in the

the judge or jury are provided with information on the standards to which professionals in the field of expertise are held.

Giving an opinion is the most common form of ex- pert testimony.

2.2.4

Probability of Expert Opinion

In American criminal law, expert witnesses must be reasonably confident of the opinions they give. The term lawyers use to describe the requisite degree of confidence is “reasonable certainty.” The degree of

certainty subsumed within this term lies somewhere between guesswork and absolute certainty.

Forensic neuropathologists do not need to possess any special legal knowledge. They must, however, be aware of differences in the evidentiary requirements of the various courts. An expert opinion must always explain the degree of probability with which a causal connection can be claimed to link two events and/

or a particular diagnosis made. In German criminal law, the following five degrees of probability have become established in recognition of the fact that a clear “yes” or “no” is not possible in the majority of cases:

1. “Probability bordering on certainty”: this cor- responds to a probability of 99.8%; a reasonable doubt does not exist.

2. Probable: the evidence favoring a causal connec- tion between two events is weightier than that against.

3. Undecided: the evidence for a causal connection and that against such a connection are equally plausible (50:50), i.e., the issue cannot be decided one way or the other.

4. Improbability: the evidence against a causal con- nection between two events is weightier than that for such a connection.

5. Least possibility: if a situation is theoretically possible, but the evidence clearly shows it was not the case, then it can be ruled out with a “probabi- lity bordering on certainty.”

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