Medical Reports for Children’s Court

Anne SmithMedical Director VFPMS

(images of children removed)

When writing medico-legal report

Ask yourselfWhat is the purpose?How should it be structured?What information must be in itWhat information might be in it?How should it be worded?What are the important “do”s and “don’t”s?

Types of medico-legal reports

Child Abuse

• (perhaps not?) Letter to colleague• Child Protection - for information• Child Protection – Court Report• Criminal justice system (for criminal court)• Victims of Crime Compensation• Expert Opinion

Information in medico-legal report

Should enable you to comment on • Cause of injury

– Accident or assault ……& neglect– Mechanism (nature of insult & forces)– Certainty / probability

• Timing of injury• Circumstances surrounding injury• Treatment required• Outcomes (potentially life-threatening?)And make Recommendations

Objectivity

An expert witness does not compromise objectivity by defending, forcefully if necessary, an opinion based on the experts specialised knowledge which is genuinely held

but may do so if the expert is, for example, unwilling to give consideration to alternative factual premises

or is unwilling, where appropriate, to acknowledge recognised differences of opinion or approach between experts in the relevant discipline.

guidelines from the Federal Court of Australia

Impartiality Stick to the factsEliminate bias

This is NOT time to go out on a limb

Focus on the TRUTH (the whole truth, and nothing but the truth…..)

History of prior criminal behaviour +/_ sentencing

In accordance with local reporting requirements / legislation in relation to notifications to statutory authorities (Child protection)

Hearsay (depends on the court)

Ask yourself: Is your evidence (legally) able to be presented?

Daubert: whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community

Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993)

Hard vs soft sciences• Eg DNA fingerprinting vs social sciences / psychology (opinion

about witness reliability, state of mind, interpreting behaviour)

Ask yourself: Is your evidence (legally) able to be presented?

Attending court without first having prepared a good medical report is like……..

http://www.worth1000.com/cache/contest/contestcache.asp?contest_id=2455&start=51&end=60&display=photoshop#entries

Ensure that the Medical Report

(a) is clearly expressed and not argumentative in tone;

(b) is centrally concerned to express an opinion, upon a clearly defined question or questions, based on the expert’s specialised knowledge;

(c) identifies with precision the factual premises upon which the opinion is based;

(d) explains the process of reasoning by which the expert reached the opinion expressed in the report;

(e) is confined to the area or areas of the experts specialised knowledge; and

(f) identifies any pre-existing relationship between the author of the report, or his or her company etc, and a party to the litigation (eg a treating medical practitioner).

guidelines from the Federal Court of Australia

Separate the following:

Facts– Those things that are known

to be true

Circumstantial evidence– Those things that might

influence opinion about the likelihood that a proposition is true

Speculation– Imagine a scenario (Probably best avoided)

Opinion– Evaluation of likelihood that a proposition is true

References – evidence base

Writing a medical report

For whom?How will it be used?Who owns it?

What qualifiers and protection is required?

Differing format for1. Criminal justice

(police report)

2 . Expert opinion3. Child Protection4. Victims of Crime

Comp

5. Family Court6. Coroners Court7. Medical Board

hearing

Smithtown Family Clinic1 Parkside WaySmithtown 3006Ph 9684 4480Fax 9684 4481

3rd February 2004

Detective Senior Constable PloddSmithtown Criminal Investigation Unit122 Smith’s RoadSmithtown 3006

Re: Mr John Smith DOB: 13th January 1970I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way SmithtownHereby state that:I am a medical practitioner registered in the state of Victoria.I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in

1988, and Fellowship of the Royal Australian College of General Practitioners conferred in 1996. I have worked in the capacity of a general practitioner in both rural and metropolitan practice since 1992.

Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004Helen Louise Parker. Writing a Police Statement

Smithtown Family Clinic1 Parkside WaySmithtown 3006Ph 9684 4480Fax 9684 4481

3rd February 2004

Detective Senior Constable PloddSmithtown Criminal Investigation Unit122 Smith’s RoadSmithtown 3006

Re: Mr John Smith DOB: 13th January 1970I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way SmithtownHereby state that:I am a medical practitioner registered in the state of Victoria.I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in

1988, and Fellowship of the Royal Australian College of General Practitioners conferred in 1996. I have worked in the capacity of a general practitioner in both rural and metropolitan practice since 1992.

Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004Helen Louise Parker. Writing a Police Statement

Smithtown Family Clinic1 Parkside WaySmithtown 3006Ph 9684 4480Fax 9684 4481

3rd February 2004

Detective Senior Constable PloddSmithtown Criminal Investigation Unit122 Smith’s RoadSmithtown 3006

Re: Mr John Smith DOB: 13th January 1970I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way SmithtownHereby state that:I am a medical practitioner registered in the state of Victoria.I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in

1988, and Fellowship of the Royal Australian College of General Practitioners conferred in 1996. I have worked in the capacity of a general practitioner in both rural and metropolitan practice since 1992.

Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004Helen Louise Parker. Writing a Police Statement

Smithtown Family Clinic1 Parkside WaySmithtown 3006Ph 9684 4480Fax 9684 4481

3rd February 2004

Detective Senior Constable PloddSmithtown Criminal Investigation Unit122 Smith’s RoadSmithtown 3006

Re: Mr John Smith DOB: 13th January 1970I, Mary Nicole Brown of the Smithtown Family Clinic, 1 Parkside Way SmithtownHereby state that:I am a medical practitioner registered in the state of Victoria.I hold the qualifications of Bachelor of Medicine and Bachelor of Surgery conferred in

1988, and Fellowship of the Royal Australian College of General Practitioners conferred in 1996. I have worked in the capacity of a general practitioner in both rural and metropolitan practice since 1992.

Reprinted from Australian Family Physician Vol. 33, No. 11, November 2004Helen Louise Parker. Writing a Police Statement

BackgroundI have received a request from Detective Plodd to detail the

injuries received by Mr Smith as a result of an alleged assault on him on Saturday 12th January 2004. In particular he has asked whether Mr Smith’s head wound could have ‘resulted from being struck with a baseball bat or could have occurred when he fell to the pavement’. I examined Mr Smith at this clinic on Tuesday 15th January 2004, 3 days after he was allegedly assaulted, and again on Monday 21st January 2004 to remove his sutures. I have been provided with a signed consent form from Mr Smith for the release of this report to police.

This report has been prepared from: • my clinical notes made at the time of the examination • a letter from the Smithtown Hospital Emergency Department.

BackgroundI have received a request from Detective Plodd to detail the

injuries received by Mr Smith as a result of an alleged assault on him on Saturday 12th January 2004. In particular he has asked whether Mr Smith’s head wound could have ‘resulted from being struck with a baseball bat or could have occurred when he fell to the pavement’. I examined Mr Smith at this clinic on Tuesday 15th January 2004, 3 days after he was allegedly assaulted, and again on Monday 21st January 2004 to remove his sutures. I have been provided with a signed consent form from Mr Smith for the release of this report to police.

This report has been prepared from: • my clinical notes made at the time of the examination • a letter from the Smithtown Hospital Emergency Department.

HistoryMr Smith told me that he had been assaulted on the previous

Saturday night (ie. 3 days before the consultation). He said he was unable to recall much of what had occurred as he had consumed a considerable amount of alcohol. He stated the following to me:

• he was in a queue outside a nightclub and was shoved from behind• he turned around and verbally abused the male standing behind him

and that male punched him in the face• he recalled being on the ground and thinks he was struck on the

head with a baseball bat• he was taken to hospital by ambulance.The letter from the hospital indicated a wound on his scalp was

sutured.Mr Smith attended here requesting review and documentation of his

injuries, and a medical certificate for work.There is no past medical history of relevance to this allegation.

Symptoms of recent injuryMr Smith complained of headaches and indicated his injuries to me.

OpinionIn summary, Mr Smith is a 34 year old man whom I examined 3

days following an incident in which he was allegedly punched to the face and possibly struck with a baseball bat. He had evidence of a black eye and a sutured wound on the back of his scalp. With respect to the findings I am of the opinion that:

1. The bruise around the eye is the result of blunt trauma:• blunt trauma may result from a blow or forceful contact with

an object• it is impossible to accurately age a bruise, however that

observed could have occurred within the time frame of the alleged incident

• it is not possible to state more precisely the cause of this bruising around the eye. It may have resulted from a punch, however other mechanisms are possible

• this injury should fully resolve leaving no permanent sequelae, however, a blow to the eye has the potential to result in permanent serious visual impairment.

Opinion2. The sutured wound had the appearance of a laceration, due to

the application of blunt trauma to the region causing the skin to split:

• it had the appearance of a relatively recent wound and could have occurred within the time frame of the incident

• it is not possible to state more precisely the exact cause of this wound, and in particular I am unable to differentiate between a fall onto the pavement versus a blow with a baseball bat as the cause. The doctor who initially treated Mr Smith and sutured his wound may be able to assist you further with this inquiry

• this wound should heal, leaving a scar that will be barely visible under the hair.

Dr Mary Nicole BrownMBBS, FRACGP

I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.

Mary N Brown

Acknowledgement taken and signature witnessed by me at 3 pm,On 6th February 2004 at Smithtown

Signature P Plodd _____________________________________Name Peter Plodd______________________________________Rank/No D/S/C 31268 ________________________________

Medical Report (for Child Protection)

Letterhead +/- logoDateFor whomTitleRe

– Name– Date of birth– Identifier– (NOT ADDRESS)

Who you are– full name, – qualifications – professional address– current position/title– experience in the field

When and where you had contact with the childWho else was thereWho provided consent and what consent was for

All sources of information

Medical Report - ChildrenWho said what

– Verbatim** – New paragraph per person– Allegations

Headings optionalNumber paragraphs optionalContent

– Allegation 1st– Concerning features

• Delay in presentation• History changes over time• Differing histories by

individuals– Paediatric medical history

Allegations– What?– Who?– Where?– When?

History– Specific

• related to allegation• chronology

– Nonspecific • past medical and developmental concerns• child care practices• genogram

Medical Report - ChildrenExamination - general

– Demeanour, affect– Cooperation– Clothing– Measurements and

percentiles– Skin– Orifices

• Mouth, ears, eyes– Systems– Pattern recognition

Examination - specific– Injuries

• Obvious• Search

– Documentation• Site• Size• Shape• Surrounds• Colour• Contour• Contents• Edge• (pain, discharge,

movement)

Medical Report - Children

Investigations– What?– When?– Who interpreted findings?– Implication(s) of findings?– +/- sensitivity and specificity of the test (rarely)

Consultations: Quote – Who ?– What opinion ?

Medical Report - ChildrenOpinion – clear heading

Summarise allegations

Summarise examination findings

How the 2 relate to each other

What you believe is the most likely cause for the child’s condition WHY?

Other conditions to consider – Why they are or are not likely to be the cause of the child’s condition– References

Medical Report - ChildrenLimitations of your opinion

Qualifiers

Jurat

Evidence on which your opinion is based– References

Limit / permit the use or distribution of the report?

(court documents = public records)

CHECK IT for– Typing errors– Grammatical errors, sloppy language, imprecise language, misleading

language– Errors of fact– Errors of judgement– Opinion = accurate and complete

Sign itSend it (cc to all the relevant professionals)Record in child’s record when report sent to whom

Lawyer: "What happened then?" Witness: "He told me, he says, 'I have to kill you because you can identify me.'" Lawyer: "Did he kill you?" Witness: "No."

http://rinkworks.com/said/courtroom.shtml

Courtroom Quotes

Lawyer: "How far apart were the vehicles at the time of the collision?"

Lawyer: "Now, Mrs. Johnson, how was your first marriage terminated?" Witness: "By death." Lawyer: "And by whose death was it terminated?"

Lawyer: "I show you Exhibit 3 and ask you if you recognize that picture." Witness: "That's me." Lawyer: "Were you present when that picture was taken?"

OPINIONS: where do they come from?

Values Bias (+/- motivational error)

+ Knowledge + Reasoning (+/- cognitive error) -> Conclusions = Opinion (+/- judgement error)

Opinion in medico-legal reportShould address matters related to • Cause of injury

– Accident or assault ……& neglect– Mechanism (nature of insult & forces)– Certainty / probability

• Timing of injury• Circumstances surrounding injury• Evidence base for your conclusions• Confidence in diagnosis /probability /likelihood• Treatment required• Outcomes (note if potentially life-threatening)

Cause of injury

Possible phrases to use• Indicative of.. Indicates that… Has been caused by …• Suggestive of… suggests that…

– Is likely to have been caused by… – Probably has…

• Raises concern about …• Could have been caused by .. It is possible that..• Not able to determine the cause based on the appearance alone• Is unlikely to have been caused by…• Is highly unlikely to have been caused by …• Almost certainly has not been caused by…• Cannot have been caused by…

Unpopular phrases (not wrong)

• Consistent with…• In keeping with …• As she alleged….• Within the alleged time frame….

• Could have been caused by A.. or B.. or C..

• Nonspecific (both an accidental cause and assault is possible )

Time of injury

• Minutes to hours• Hours to days• Days to weeks • Weeks to months• Months to years

CAUTION: Few doctors understand statistics!

Single event probabilitiesEg Prozac has a 30-50% chance of sexual dysfunctionMany doctors do NOT understand risk for their patientSolution to improve understanding of relative risk : Reference

class or only use frequency statement

Conditional probabilities • Sensitivity• Specificity• Positive predictive value

Relative risksBMJ  2003;327:741-744 (27 September), doi:10.1136/bmj.327.7417.741 Education and debate: Simple tools for understanding risks: from innumeracy to insight Gerd Gigerenzer, director1, Adrian Edwards, reader2

Statistics in Court

Appropriately reference current knowledge and explain consensus

Must understand Baysian probability

Always apply statistics appropriately

An Intuitive Explanation of Bayes' Theorem Eliezer S. Yudkowsky http://yudkowsky.net/rational/bayes

Sally Clark case

• Sir Roy Meadow -2 children in 1 family dying of SIDS = 1 in 73,000,000– Probability of 1 in…X probability of 1 in…

• Assumed independence • Other medical causes of multiple deaths not considered• Ignored conditional probability /probability of multiple

homicides not considered• He was possession of manuscript about research on 2

or more deaths in one family (probability much less than 1 in 73 million)

BEWARE• Prosecutor’s fallacy• Defense Attorney’s fallacy• Conditional probability

fallacy / confusion of the inverse

• Base rate fallacy

GET IT RIGHT OR DON’T GO THERE……

Prosecutors fallacy

A piece of evidence that would implicate a random person in the population = probability that it implicates the defendant.

Eg DNA evidence (and Meadow’s law) 1 in 3 million chance that a random person has this particular DNA profile is (wrongly) attributed / equated to a 1 in 3 million chance that this person is innocent

Defense attorney’s fallacy

1 in a million chance of a match.Test 10 million, ->10 matches. The defendant is merely one of the 10.Thus my client has 90% chance of innocence!

• Eg OJ Simpsons blood at crime scene matched 1 in 400 other LA citizens. In a LA football stadium a number of other “matches” possible

Conditional probability

• P(I|E) = P(E|I ) x P(I) / P(E)• P (I |E) = probability of innocence given the

evidence• = P (E|I) probability of false positive • TIMES • Probability of Innocence independent of test

result• Divided by Probability that evidence would be

observed regardless of innocence

Base rate fallacyPrior probability = base rate probability

CIA example: Vietnam war• US pilot identifies strafing aircraft as Cambodian• Under experimental conditions (50% Cambodian 50% Vietnamese) pilot correct

80% erred 20%• BUT field conditions : 85% of aircraft are Vietnamese, only 15% are Cambodian• Thus 68 of 85 Vietnamese aircraft (80%) correctly identified, and 17 incorrectly

identified as Cambodian• And 12 of 15 Cambodian aircraft correctly identified ( 3 incorrectly identified as

Vietnamese• 17 incorrectly identified as Cambodian (actually Vietnamese) + 12 correctly

identified as Cambodian = 29 • Therefore probability he is correct is actually 12 / 29 = 41%

www.cia.gov/library/center-for-the-study of intelligence/csi-publications/book

Examples of Cognitive BiasPeople apply a high evidential standard ("Must I believe this?")

to unpalatable ideas & a low standard ("Can I believe this?") to preferred ideas

Excessive drive for consistency is another potential source of bias because it may prevent people from neutrally evaluating new, surprising information

People can only focus on one thought at a time, so find it difficult to test alternative hypotheses in parallel.

People can overlook challenges to their existing beliefs

Hidden assumptions assume shared values and beliefs, therefore AVOID these words

DisclosureAssumes the statements are factual

“He disclosed that she hurt him”

VictimAssumes something bad happened to this person

“The victim wept after the alleged assault”

OffenceAssumes crime has been committed

“She said that the perpetrator raped her”

Assumptions and ‘medical truisms’

• If you hear hoof-beats think of horses not zebras– Common things occur commonly (and conversely…)

• Occham’s razor

• The rule of parsimony (all symptoms are due to one complaint)• If a test result surprises you, repeat the test before taking action• If a test result is unlikely to change the management of a patient, don’t do the test.• Rare manifestations of common diseases > common manifestations of rare diseases• 1st priority in DDX = diseases you cannot afford to miss

• Values and bias – eg, People are inherently ‘good’ sometimes poverty makes people do bad things…

How useful are these things when evaluating a particular child’s situation?

Dos and don’ts for doctors

Do be quiet and listenDo diligently record verbatim commentsDo explore all possible scenariosDo seek detail about injury mechanismDo demonstrate your reasoning

Don’t close your mind to any possibility Don’t hide anythingDon’t ever suggest to caregivers /others a possible

explanation for an injury (Don’t speculate)

TipsDon’t say or write ANYTHING that you would not

defend under cross-examination in court.

Don’t hesitate to seek advice (early)

Don’t allow yourself to be bullied or influenced to provide a biased opinion in a report

Always question your own judgement and review the evidence on which your opinion is based

If in doubt, perhaps more particularly when you are in NO doubt…have a colleague review & edit report

VFPMS