How Medical Experts Interact With the Law
The practice of law originated with the orators and notaries of ancient Greece and Rome, while the earliest written evidence of medical professionals plying their trade can be found in archaeological records from ancient Egypt. But when did the twain meet?
The testimony of expert witnesses, so-called opinion evidence, was first deemed admissible in common law disputes in 1782, when the British legal reformer Lord Mansfield wrote that a civil engineer “alone” could judge a “matter of science” — namely, whether an artificial embankment was causing Wells Harbour to fill with silt.
A 2017 paper in Academic Forensic Pathology notes that as medical science matured, it became more accepted as evidence. By the 1800s, U.S. courts allowed that expert medical opinion was admissible in legal cases, especially when considering certain homicide cases, and today, the contribution of medical science to law is so commonplace that no police procedural or courtroom drama is complete without recurring characters from the medical world.
Medicine and law are entwined in ways that don’t require a judge and jury, too. One medical-expert-witness directory and training company, for instance, lists 182 categories in which medical specialists may be called on to provide advice to lawyers or clients, draft legal reports, prepare attorneys for depositions or trials, offer professional opinions on a defendant or plaintiff’s mental state, help determine compliance issues, provide independent medical examinations (IMEs), and more.
To get a sense of the ways physicians work in the world of law, we spoke with some alumni who shared their experiences with the crossover.
Paul Appelbaum, MD ’76
The Dollard Professor of Psychiatry, Medicine, and Law at Columbia University
Interaction with law: Forensic psychiatrist
Time spent: 10 – 15 hours per week
How long: More than 40 years
Typically I evaluate litigants to determine whether they meet the legal standards that apply to their case, or provide opinions when there’s a question of whether the medical standards of care were adhered to in the treatment of malpractice plaintiffs.
My first week in medical school, I had to pick a behavioral science elective. I had been interested in legal issues as a debater in high school and college, so I picked a course in law and psychiatry. By the end of the first class I thought working in this area was something I would love to do as a career.
Doctors and lawyers approach questions in different ways and from different perspectives. Legal thinking tends to begin by looking for precedent, then tries to fit the facts at hand into that preexisting model. Medicine begins by asking what facts we’re dealing with and how can we best respond to them.
The ground rules are very different, too. When a patient comes into your office, they have a reasonable expectation that you’ll try to help them. When a litigant walks into your office, they need to understand that you’re there to establish the truth of the situation, and your conclusion might not be helpful to them at all.
It’s unusual to be able to fill every hour of the day doing this sort of work. Legal work tends to come in clumps, so it’s not easy to combine that with full-time clinical practice because of the ebb and flow of the demands being made, including the necessity to schedule depositions and drop everything to talk to a lawyer when an issue arises. Academic positions offer more flexibility in accommodating these needs.
Janine Young, MD ’96
Division Chief of Academic General Pediatrics and Professor of Pediatrics at University of California San Diego (UCSD)
Interaction with law: Physician and advocate for immigrant health
Time spent: 1 day per week
How long: 9 years
In Colorado in 2017 I brought a group of physicians and lawyers together to advocate collaboratively for asylum seekers because rhetoric about immigration started ramping up more around then. I co-founded a human rights clinic there; now, I’m doing the same thing with a multi-disciplinary group of colleagues at UCSD. We will offer pro bono medical and mental health forensic exams for asylum seekers, many of whom don’t know they can qualify for legal status based on a history of abuse, systematic discrimination, or fear of persecution. Along with medical student leads and in collaboration with a local non-profit, we will perform forensic exams and write affidavits supporting asylum claims.
The key is building partnerships with immigration lawyers. It’s frustrating that we can handle so few cases due to a lack of immigration lawyers nationally, and physicians often aren’t aware that they can partner with these lawyers to do exams and write affidavits. It’s even more frustrating as a physician to see patients who you know could qualify for legal status and insurance if they had access to an immigration lawyer and medical forensic examination that could bolster their asylum claim — or to see mixed-status families who are afraid to get medical help because they’re worried about being picked up by U.S. Immigration and Customs Enforcement or can’t make a living wage.
Not having legal status significantly impedes health. I’ve had undocumented children die because they couldn’t get the health care they need. That tends to make you want to learn about law.
More doctors are needed in this area. Physicians for Human Rights and the Society of Asylum Medicine can help make connections.
Sandra Cohen, MD ’78
Occupational and Organizational Psychiatrist in Private Practice
Interaction with law: Consultant and expert witness, New York City Metropolitan Transportation Authority, NYC Health + Hospitals; occasionally other organizations
Time spent: 10 – 20 hours per month
How long: 41 years
I get called by big organizations like hospitals when hourly workers in support positions, workers who may have severe mental illnesses, are thought to be decompensating. Having a mental illness does not mean someone can’t work, but if people around them notice they are struggling, I often have to determine whether they have a psychiatric illness by DSM (Diagnostic and Statistical Manual of Mental Disorders) standards. I also see professionals, but for every doctor or nurse I see, there are fifty people changing linens and keeping the electricity running who may need my evaluation.
Most people will agree to see me and are compliant with treatment because they want to keep their jobs. It’s hard to have good mental health if you’re not allowed to work. The majority of people I see go back to work; very few are untreatable, and those who are untreatable often have severe personality disorders.
In legal work you need to have the temperament to not waffle. Some people are just not happy stating a position. You have to be comfortable dealing with complex systems with lots of structure and bureaucracy, and be willing to advocate for the patient, but also see the bigger organizational context and the regulatory limits of what you can do. For example, there are some antidepressants you can’t give pilots. So you have to go back and forth between the rights of the one and the many, and interests sometimes conflict.
On the other hand you can have an impact on society beyond the limited number of patients you’ll treat by helping to make policies that affect the workers and the people who interact with them. There’s a consistent demand for psychiatrists in this field.
Ken Ishizue, MD ’84
Interaction with law: IMEs for disability retirement applications and personal-injury cases
Time spent: 10 – 20 hours per week
How long: 6 years
If you’ve got a full plate, it can be tough to do this work because there’s a lot of homework involved, and you have to be available for depositions and trials.
It is worthwhile to pursue some training in the beginning. Also, it’s easier to get started if you sign with a company that matches physician experts with legal experts who need them; these companies will help with administrative aspects. The number of such companies has ballooned in recent years, and a lot of doctors use more than one.
Depositions and trial testimonies are contentious by nature. Opposing attorneys may try to get you into unfamiliar territory in order to devalue your opinions. Some attorneys may get into ad hominem attacks to reduce your credibility. Stick to your area of medical expertise. It is helpful to support your conclusions by citing peer-reviewed articles.
Diana Rodriguez, MD ’94
Attending Maternal and Fetal Medical Physician at Steward Health Care in Boston
Interaction with law: Internal medical consultant at Ross Feller Casey, LLP, in Philadelphia
Time spent: 50 hours per week
How long: 13 years
I’ve been with Ross Feller Casey since June 2022 but was a consultant for various legal firms for about 12 years before that. I was also hired by a hospital that had a safety event to look at their systems and advise them on what could be done differently.
Although my current work focuses on the plaintiff side, I have worked with both plaintiff and defense attorneys. There is a dearth of plaintiff experts, in part because people don’t want to be critical of the work of other physicians. Some people think I’ve gone over to the dark side but there is no dark side; every system needs to be balanced. This year marks the 25th anniversary of The Institute of Medicine’s influential book To Err Is Human, which stated unequivocally that preventable medical errors do happen and they cause harm. Being on both sides has helped me understand better how and why errors occur, which informs my advocacy work.
In the office I get to see the legal side behind the scenes and understand the limits of the law. Everyone thinks it’s easy to sue but it’s not; you have to prove liability, causation, and permanent injury. We decline more cases than we take. Sometimes unfortunate things happen that have nothing to do with medical care, but even then, reviewing the case can bring families closure.
In the legal world there is no nine-to-five. When we have a case going to trial I’m really busy making sure the attorneys understand the science. They walk into depositions or court as mini-experts in the area.
I miss my patients, but I’ve actually learned more about medicine because the legal work requires me to do such deep dives. There are so many things you can do with your medical knowledge that can still benefit people on an even greater level because they can help set policy.
Elizabeth Gehrman is a Boston-based writer.
Images: Maya Rucinski-Szwec (graphic); Frank Rogozienski (Young)