[PDF] - La Law and and (H (Hearin ring Di Dis ) O ) Order: Expe PDF Document

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La Law and and (H (Hearin ring Di Dis‐) O ) Order: Expe Experiences riences in in Fo Fore rensic Audiology Audiology

Robert W. Sweetow, Ph.D. Professor Emeritus University of California, San Francisco

Is this something you want to do?

Interesting
Challenging
Financially rewarding
Time‐consuming
Can be nerve‐wracking

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Forensic

Legal proceedings
Medical‐legal testing

Types of cases

Criminal versus Civil Law
Criminal law = broken city, state or national law

resulting in criminal prosecution

Civil law = violates a duty to your neighbor resulting in

a “Tort case”.

Defendant had a duty to the plaintiff
Defendant neglected that duty
An injury or loss occurred caused by the defendant’s negligence
Malpractice, personal injury, product liability, class action

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Some cases can be criminal and civil

And here’s some that might go criminal or civil or ………….?

Terms and credentials

Fact witness versus expert witness
Fact (material) witness = typically for criminal trials
Expert witness = typically for civil trials
Expert witness is allowed to express opinions and

conclusions, unlike fact witnesses, who can only present the facts as they saw them.

Fact witness can also be a potential expert as in the case
f a treating audiologist.
Expert witness criteria, i.e. credentials
Expertise in some field important for the case
Lack of unique information about the case
The ability to state an opinion
Legal consultant

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Expert Roles

Treatment
Examining
Consulting
Testifying

Qualifications for Expert

A current, valid license is essential if you are an

examiner, but not essential for an expert witness.

Specialties should be appropriate to the subject

matter

Demonstrate evidence of continuing medical

education

Age and experience can be a factor
Personal/Professional history

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Expert Witness Responsibilities

Review case information and testify to its content fairly,

honestly and in a balanced manner.

May be called upon for an opinion based on the facts of the

case.

May be asked to personally evaluate patient
Be prepared to distinguish between actual negligence

and an unfortunate outcome.

Review the standards of practice (standard of care)

prevailing at the time of the alleged occurrence

Be prepared to discuss important alternate methods and

views

Responsibilities‐Continued

Be prepared to state the basis of your testimony:
Personal experience
Specific clinical references (document them, unless you don’t

want them brought up)

Evidence-based guidelines
Accepted opinion in the field
Scientific evidence is admissible only if based on general

acceptance

Compensation should be reasonable and commensurate

with time and effort

Unethical to link compensation to outcome of case

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Expert witness

Never participate in the case where you can

directly profit from a victory by either side

Be equally available to plaintiff or defendants
Be prepared to document percentage of time

serving as an expert witness and amount of compensation received and every single conversation you have with the attorney……or not!

Guidelines

Ethically and legally obligated to tell the truth
Courtroom transcripts and depositions are public

records and subject to review

Failure to provide truthful testimony can expose expert

witness to:

Criminal prosecution
Civil suits for negligence
Revocation or suspension of professional license

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Forensics malpractice

Negligible possibility
But if you work for a hospital, university, etc., your

malpractice may not cover unless your work is done for the emplyer’s benefit

Situations you will be in

Depositions
Trial
Direct examination
Cross examination
Re-direct and re-cross
You will be challenged on your past (written

and oral) statements (tinnitus and whiplash)

You will be challenged on your court room

demeanor

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Two roles for depositions

Discovery (to find out what the expert will say at

trial)

Perpetuate the expert’s testimony for use in court,

in the event you are unavailable during the trial

Direct examination

Obligation is only to answer the questions that are

asked

Even if additional information might be helpful to

the attorney, it is best to not answer questions that have not been asked

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What experts should do

Resist the temptation to think of the attorney as

“your” attorney

Expert may play background roll, helping the

attorney prepare the case, rather than testifying in court

Cross‐examination

Opposing attorney may attack your….
Qualifications
Knowledge
Experience
Reasoning
Judgment
Impartiality
Consistency
Knowledge of all the facts

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Cross examination

Never exaggerate or understate your qualifications
Do not say “there are no authoritative references”;

because this can cast doubt on both the field and the expert

Instead say “there is extensive literature in the

field, but there are areas of both consensus and controversy”

Things not to do

Step outside expertise
Lie
Talk too much
Speculate (unless asked by client attorney)
Try to impress
Deny previous statements (tinnitus example)
Put too much in writing (e.g. e‐mails)

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"Are you a medical doctor?"

“No”
"What gives you the authority to comment on this

patient's condition?"

“Part of my job is to teach the medical doctors what

they need to know about hearing and auditory function.”

“Are you being paid for your testimony in support of the plaintiff or defendant?”

A simple “yes” would imply bias;
Better answer would be “I am paid for my time and

expertise regardless of my opinions, the outcome of the case, or whether I am called to the witness stand

r not. My job is simply to educate”

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Attorney behavior

Attorney’s obligation is to his or her own client, not

to the expert

Should not withhold evidence from expert
Writing declarations
Coercing

Ethical Dilemnas

Is the client a plaintiff or a patient
Exaggerating on TFI or crying out for CBT
Who is responding, wife or patient?
Attorney is withholding evidence

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Understand the rules of the subject

For example, Courts consider the onset of symptoms as the triggering event

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Eggshell Rule

Despite the fact that the degree of injury is unusual, if

the defendant is legally responsible for the accident then the defendant is liable for the result. Under the “eggshell plaintiff” rule, the defendant must still compensate the victim for the full extent of the injury

Daubert v. Merrill Dow Pharmaceuticals

Evidence must be reliable and trustworthy

(supported by scientific methods and procedures)

Evidence must be relevant (and subjected to peer

review)

Evidence must have a known potential rate of error
Evidence should be generally accepted by the

scientific community

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Six criteria for tinnitus (VA)

Complaint must be unsolicited
Must accompany a compensable level of hearing

loss *

Treatment history of one or more attempts to

alleviate

Evidence to support personality change or sleep

disorders

No contributory history of substance abuse
Supported by statements from family or significant
ther

How to get into the Forensics universe

Peer reviewed publications
Invited lectures word of the mouth references

suggesting competence, integrity, communication skills, and cooperation

Past cases should include being a witness for both

sides (plaintiff and defendant)

Expert lists on closed websites

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Some of my most interesting personal cases (not in any special order)

Junkyard sting
Yosemite fracture
Repo man
BART and unlawful discharge
Movie class action
Large earmold and external otitis
Airbag deployment (>160 dB peak level)
Medication overdose (quinidine)
Pt. MW #1:
10

10 20 30 40 50 60 70 80 90 100 110 120 125 250 500 1000 2000 4000 8000 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

750 1500 3000 6000

Speech R L SRT (dB) 15 15 Discrim (%) 84 88 Discrim (dBSL) 40 35

>

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Pt. MW #2
10

10 20 30 40 50 60 70 80 90 100 110 120 125 250 500 1000 2000 4000 8000 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

750 1500 3000 6000

Speech R L SRT (dB) 35 40 Discrim (%) 80 88 Discrim (dBSL) 40 35

> > > > >

Wrong meds; quinidine for atrial fibrillation vs. quinine

Pt. MW #4
10

10 20 30 40 50 60 70 80 90 100 110 120 125 250 500 1000 2000 4000 8000 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

750 1500 3000 6000

Speech R L SRT (dB) 20 20 Discrim (%) 96 96 Discrim (dBSL) 40 40 X

> > > > >

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More of my most interesting personal cases (not in any special order)

Hell’s Angel and FBI
Reflex decay and tinnitus (Hunter [1999] reported on

2 cases with 10 sec exposure at 130 dB SPL)

Lying plaintiff (psychiatrist, pilot) and attorney
iPod intensity limit
Cable car noise (non‐physiological effects; e.g.

performance, sleep interference, annoyance)

Double noise notch

Early cordless phones

140 dB SPL ring @ 750 Hz in the earpiece
Acoustic trauma may improve over 4‐6 months

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Pt. SH, documented cordless phone case in literature
10

10 20 30 40 50 60 70 80 90 100 110 120 1 2 5 2 5 5 7 5 1 1 5 2 3 4 6 8 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

Speech Ear SRT WRS MCL R 10 100% 50dB Reflex Thresholds Contra- lateral Ipsi- lateral 1K 2K 1K Stimulus Ear R 90 90 95 L 90 85 95 Tympanometry Right Left A A

< < < < <

Still more interesting personal cases (not in any special order) ‐ continued

Frying pan explosion
UPS driver
Vegetable peeler killing
University hospital malpractice
Nurse’s call button
Unilateral localization and employment rights

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Still more interesting personal cases (not in any special order) ‐ continued

Frying pan explosion
UPS driver
Vegetable peeler killing
University hospital malpractice
Nurse’s call button
Unilateral localization and employment rights
“The officer and I walked across the street towards 570 E. Taylor.

I was almost across the street when I heard yelling coming from 570 E. Taylor. I heard a female voice shouting in a foreign language and in a very angry tone.”

“I tried to turn the doorknob but it was locked.”
“Instead, I first peeked through a small crack in the blinds. I was

able to see the lower half of what appeared to be an adult…”

“In addition to the shouting coming from the right area of the

house, I could hear sounds like the clatter of silverware or kitchen utensils coming from the same area.”

“I saw a female rifling through a kitchen drawer. At this point I

removed my duty weapon and held it at the low ready position.”

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Pt. DG (nurse’s call)
10

10 20 30 40 50 60 70 80 90 100 110 120 1 2 5 2 5 5 7 5 1 1 5 2 3 4 6 8 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

Left Right L bone masked

Speech R L SRT 20 30 MCL 50 55 UCL 80 80 LDL 85 80 WRS % 84 96 64 92

> > > >

> = R bone

Measured at less than 90 dB SPL

Pt. NW localization in courtroom?
10

10 20 30 40 50 60 70 80 90 100 110 120 125 250 500 1000 2000 4000 8000 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996) Left Right L air masked L bone masked

750 1500 3000 6000

Speech Monaural Aided L R L

SRT

70 15 15

WRS

96 100 92

A A A A A

A = aided

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Pt. CP
10

10 20 30 40 50 60 70 80 90 100 110 120 1 2 5 2 5 5 7 5 1 1 5 2 3 4 6 8 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

Speech R L SRT (dB) 35 35 WRS (%) 92 96 (dBSL) 70 70

A A A A

Note: CP, a classroom instructional aide, was offered another position doing 1-to-1 tutoring for less money.

A

Initial Eval: March 1999

10

10 20 30 40 50 60 70 80 90 100 110 120 125 250 500 1000 2000 4000 8000 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

750 1500 3000 6000

10

10 20 30 40 50 60 70 80 90 100 110 120 125 250 500 1000 2000 4000 8000 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

750 1500 3000 6000

Right Left PTA 8 SRT CNE CNE

Acoustic Reflexes Crossed  Uncrossed 

Tympanometry

0.3 0.6 0.9 1.2 1.5 1.8 2.1 2.4 2.7 3 3.3 3.6 3.9

400
300
200
100

100 200 Pressure

R vol.: 1.1 L vol.: 1.0

Patient indicates difficulty hearing in right ear Normal OAEs bilaterally

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June 2001 Eval.

** CNT Acoustic reflexes – TM too flaccid to maintain; 0 pressure ** OAEs present in Right Ear indicating normal cochlear function

10

10 20 30 40 50 60 70 80 90 100 110 120 125 250 500 1000 2000 4000 8000 FREQUENCY IN HERTZ HEARING LEVEL IN dB (ANSI - 1996)

750 1500 3000 6000

Right Left PTA 53 2 SRT dB 40

Discrim. in %

NR 100 MCL CNT 45

Tympanometry

0.3 0.6 0.9 1.2 1.5 1.8 2.1 2.4 2.7 3 3.3 3.6 3.9

400
300
200
100

100 200 Pressure

Medical‐legal testing

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Testing Strategies

Start with immittance and OAEs
Tell the patient that this is one way of evaluating hearing

without participation

Prior to behavioral testing, tell the patient that test

performance on many tests is compared

Always do an SRT: you need it for cross check
Instruct the patient to raise hand according to which

ear they hear tone in, like an audiometric Weber

Tell patients you know “hearing tests are boring”, but

“you are on their side but you are going to have to tell the truth” and they could lose what is legitimately due

Indications During Evaluation

Strange behavior during interview
Inconsistent responses (10 dB or more)
Extremely slow and deliberate responder
Martin (2002) stated that patients won’t respond

with false positive

There is no research to support this observation

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Percent Hearing Impairment American Academy of Otolaryngology, 1979

For each ear
Find PTA for 500, 1000, 2000, and 3000 Hz
Subtract 25 dB from above PTA
Multiply remainder by 1.5 to get percentage hearing

impairment

Binaural
Multiply better ear percentage by 5
Add percentage of the poorer ear
Divide the total by 6 to get binaural percentage of hearing

impairment

Know or be able to present age corrected norms

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125 250 500 1000 2000 4000 800016000 10 20 30 40 50 60 70 80 90 100

20 yrs 40 yrs 60 yrs 80 yrs Frequency (Hz) Hearing Level in dB (ANSI, 1996) Age corrected normative data Data may not always agree, so site source

NIHL = repeated exposure resulting in metabolic

changes

Acoustic trauma = single exposure resulting in direct

mechanical trauma

Impact = collision of objects (<140 dB peak pressure)
Impulse = sudden release of energy from explosion

i.e. gunfire (>140 dB peak pressure)

Daily exposure not causing TTS will not cause PTS
Why the noise notch: resonance and lack of acoustic

reflex attenuation

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Non‐0ccupational

.22 caliber < 140 dB peak pressure
Shotguns, pistols, and rifles up to 170 dB
Even lefties had more hearing loss in left ear
More Americans shoot guns (40 million) than work

in noisy jobs (10 million)

Dobie…with exception of firecrackers (150) , only

non‐occupational noise exposure causing permanent loss is motorcycling (110)

Non‐0ccupational music

NIHL in only 1 of 42 rock musicians tested
Walkman = 110 – 120 dB A
Concert = 91 – 114 dB SPL at 11 to 60 feet from

center stage

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Disability …..

Depends on factors other than just hearing loss
Occupation
Education
Determined administratively or in legal or quasi‐legal

setting

Job requirements

i.e. FAA requires 1st class pilot’s hearing to be equal to
r better than 40 dB @500, 35dB @1 and 2KHz
Some allow HPDs, others don’t
Employment can be denied if disabled person would

pose “a direct threat” to the safety of others or self.

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Determining employment eligibility

Whose responsibility?
HINT
ABR
OAE

Varied Terminology

Pseudohypacusis (preferred)
Non-organic
Malinger
Simulated hearing loss
Psychogenic
Functional
Feigned

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Pseudohypacusis

Comes from two Greek words
Pseudo mean false or fake
Hypacusis mean less than normal

Definitions

Non-organic: Indicates that there is no objective

physiological basis for the hearing loss

Functional: May confuse medical professional as

functional losses in other fields indicates the loss of function of an organ, etc.

Exaggerated overlay: Used to describe non-organic

hearing loss coincident with substantiated hearing loss.

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Sociocusis = damaging effects of non‐ occupational

noise (i.e. hunting)

Nosoacusis = disease or injury , other than pure

aging

Underlying Etiology Issue

Conscious
Translates into “dollars of compensation”
Unconscious
In need of psychiatrist or psychologist

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Red Flags

Referral by attorney
Determination of service connection for

vets

Employees participating in hearing

conservation programs

What is your responsibility with a pseudohypacusis patient?

What is your end goal for the patient?
What has your audiology training “imprinted” upon

you?

What is the written policy of your facility?
What does your facility demand?
What does your referral source demand?

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Why Does It Happen?

Motivation is highly dependent on the patient

population

REWARDS
For adults, monetary compensation is the leading factor,

followed by emotion need for an excuse to justify lack of personal success

For children, attention and lower academic expectations

may be obtained through hearing loss

History of Increases In Prevalence

A 35-40% increase in the prevalence of

pseudohypacusis after World War II when the government changed the lump-sum payment method for service connected to a monthly payment.

Increase in the prevalence of pseudohypacusis after Viet

Nam

Other factors included the use of cruder hearing tests

and lack of sufficient counseling.

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History of Increases In Prevalence

Occupational Safety and Health Act of 1970
Employees participating in hearing conservation

programs are more likely to fake a hearing loss as compensation is available to them

Don’t Jump to Conclusions

An uncooperative patient may:
Have poor motivation for the evaluation
Be physically/emotionally incapable
Be trying to conceal true hearing loss
Require re-instruction
Have neurologic involvement
Really be faking
Give the patient an out

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