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Abstract
This paper presents a systematic approach to analysis in medicolegal
evaluations in light of recent challenges within the type of reasoning
that medical experts use. I identify a form of reasoning that is
used within a specific argumentation structure as being the most
appropriate to the goals of medicolegal evaluations. This approach
to analysis addresses the legal systems need for well-supported
opinions applied to specific cases. It achieves the core task of
medicolegal decision-making: to classify an individual as one of two
legal categories, "disabled" or "not disabled, or "sane" or "insane".
2.
Describe important sources of uncertainty in medicolegal
evaluation
3.
4.
Discuss the limitations of statistical analysis in medicolegal
evaluation
Introduction
I often find it hard to understand how evaluators come to the
conclusions they reach in their medicolegal reports. For example, in a
disability assessment, an evaluator might describe milder symptoms,
ambiguous test results, and little evidence of impairment in a given
worker's daily life. Later, however, he or she might conclude that the
worker is too impaired to perform any job duties.
What is missing in such cases is a description of the evaluator's
reasoning linking medical evidence to conclusion. Without such
description, it is difficult to defend the conclusions of the report. Recently,
there has been considerable scrutiny of these methods, including
the reasoning forensic experts use to reach conclusions. In General
Electric Co. v. Joiner (1997), the Supreme Court concluded that expert
methodology and conclusions are not distinct, and that an expert's
conclusion should be excluded in the event that valid reasoning does not
support it. In a discussion of "not guilty by reason of insanity" evaluations,
Beckham et al. (1989) noted concerns about the lack of standardized
methods and procedures for making decisions. Levitt (2008) raised
similar concerns about variance of expert opinions in "competency to
stand trial" evaluations.
The goal of this article is to define a systematic approach to analysis in
medicolegal evaluations so evaluators can provide a rational foundation
to defend conclusions. For the purpose of this article, a medicolegal
evaluation will be defined as an assessment by a medical or psychological
professional addressing a question relevant to a criminal or civil legal
issue. The medicolegal evaluation may include a review of records, the
examination of a party involved in the legal matter, the performance
of medical or psychological tests, or communication with others that
have knowledge of the case. The medicolegal evaluator may be formally
recognized by a court as an "expert witness" or play a more informal role
such as an independent examiner or "peer reviewer.
Although in this paper I will focus on disability evaluations, which is
my area of expertise, the same analysis can be applied to other medicolegal
Copyright The Forensic Examiner, 2015
Burden of Proof
Conclusive defeat of an argument, however, is usually not possible in the
uncertain, complex and controversial forensic issues faced in medicolegal
evaluations. The burden of proof is an argumentation technique used
to resolve issues when conclusive proof is impractical (Meany & Schuster,
2002). The burden of proof refers to the obligation of a party in dispute to
establish, through evidence, a required degree of belief concerning a fact
Acknowledging these concerns, courts have tended to reject prosecution This author's analysis suggests that it is not realistic to definitively prove
arguments based primarily on probabilistic or statistical analyses of a
that the conclusion of a medicolegal evaluation has attained some explicit
defendant's guilt (Murphy, 2003).
legal standard of proof. This is partly because the standard of proof itself is
poorly defined, and partly because uncertainty is inherent in information
In this author's view, a more satisfactory approach would be to use
within "social sciences," like in medicine and law. It is, however, realistic
reasoning and argument, the currency of medicolegal analysis, to assess
to expect that the evaluator has tested this conclusion by argument and
and express the level of certainty of conclusions. By examining the
shown it to be the best supported among relevant alternatives. In the
quality of reasons supporting a conclusion (versus the quality of reasons
special case in which the evaluator must choose between two exhaustive
supporting other competing conclusions), one would be able to assess, to
and mutually exclusive legal categories (such as "sane" versus "insane"),
Copyright The Forensic Examiner, 2015
the choice of one category over another is equivalent to stating that this
conclusion is "more likely than not.
Owing to the uncertainty involved in medicolegal evaluations, there will
not be only one definitive "correct" conclusion. Different evaluators may
reasonably present different arguments and reach different conclusions for
the same case. Scientifically rigorous proof is not feasible in medicolegal
evaluations. Ultimately it is up to the judgment of the decision-maker
involved in the case to decide which arguments and conclusions are most
convincing (Ben-Haim, 2001).
Assertion #2: One should accept the psychiatrist's opinion that the
employee's psychiatric condition prevents her from working.
Generalization: the psychiatrist is a medical expert, and an expert's
opinion is usually reliable.
Qualification: the reliability of an expert's opinion depends upon
many factors, including relevant experience and potential
bias (Walton, 2008).
Qualification: major depressive disorder may also occur in mild
forms (American Psychiatric Association, 2000).
Assertion #4: Treatment by a psychiatrist, with prescription of psychotropic
medication, implies that an individual is suffering from a severe
and disabling depression.
Generalization: treatment with antidepressant medication, as
opposed to counseling alone, is reserved for more
severe depressions.
Qualification: there is considerable variation in accepted
treatments for depression; the nature of treatment depends
on a number of factors (American Journal of Psychiatry,
2010).
The evaluator decided these arguments were sufficient in a psychiatric
claim to establish a prima facie case for impairment. The treating
psychiatrist had diagnosed the worker with a potentially severe psychiatric
condition according to established diagnostic criteria, opined that the
worker was unable to perform her job duties because of her condition, and
initiated treatment compatible with a more severe condition. The reviewer
concluded that this case on its face supported the worker's claim, and that
it would prevail unless successfully challenged.
Copyright The Forensic Examiner, 2015
Counter-assertion #1: One should not accept the worker's testimony at face
value in this case.
Justification: when an individual benefits in some ways from
adopting a sick role, she may be motivated to exaggerate
symptoms and minimize abilities.
This argument attempts to undercut the argument in Assertion #1
by claiming that the circumstances of this case reflect an
exception to the generalization offered.
Response #1: The worker has a good performance record with her employer,
and it would not be in her interest to jeopardize her job by taking
an unnecessary medical leave.
This argument attempts to defend the original assertion by
claiming that in this case the worker does not have a
credible motivation to misrepresent her ability to work.
Discussion
I have presented this systematic approach to analysis in light of recent
challenges to the reasoning used in medicolegal evaluations. Although
analysis in medicolegal evaluations is based on medical knowledge, it
serves a legal purpose, and so must address the goals of the legal system,
including: rational proof, conservatism, and specificity. This analysis must
also address the significant uncertainty arising from the effects of human
behavior under non-ideal conditions.
I have concluded that a form of logic called defeasible reasoning,
operating within a structure of dialectical argumentation, best meets
the needs of the medicolegal evaluation. This approach uses rational
inference to apply well-supported medical generalizations to address the
particular circumstances of the case. It is not realistic to expect that the
conclusion of a medicolegal evaluation attain some explicit legal standard
of proof. Using the method described in this article, the evaluator can,
however, choose the best-supported argument based on the strength
and completeness of its evidence and reasoning. This ordinal ranking of
arguments allows the evaluator to achieve the core task of medicolegal
decision-making: to classify an individual into one of two mutually
exclusive legal categories, such as "disabled" or "not disabled," or "sane" or
"insane".
Use of a systematic approach to analysis in medicolegal evaluations
with attention to the reasoning involved could improve the quality and
reliability of these evaluations and facilitate their understanding and
acceptance by courts and other requesting bodies.
Acknowledgements
The author would like to thank Barbara J. Schroeder MS, RN for her input and discussion of the issues presented in this article.
Copyright The Forensic Examiner, 2015
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