by Mike Metz
Over the years, I have never failed to pay malpractice premiums. I have used a national company for their protection for many decades. Probably due a little to luck, I have never been involved any legal action that required me to defend my professional actions. But I have been hired to participate in legal actions involving a number of audiologists—on both sides of several legal issues, involving both testing and devices.
After listening to Ian Windmill take about the future of audiology, there was a referral to Tom Thunder’s 20Q posting from January 2015. (Thunder, T., Course # 25279, 20Q: Forensic Audiology – Putting on Your Investigator’s Hat, accessed on 4-16-16 at Audiologyonline.com.) I decided to be positive in a posting for a change and add some comments to the topic of forensic practices. Even though most audiologists will not ever get into a courtroom, the elements of patient management in a legal matter might be worth considering.
Thunder’s 20Q posting is a good start to using your skills in the legal arena. However, as with many issues, the devil is in the details—what you know, and don’t know, and what you do prior to seeing any patient bound for the legal arena is critical. While much of what is done with a patient who has a legal issue is bound to the examination, most audiologists performing “standard” testing will find themselves at great disadvantage without preparation and adjustments.
I have attached an outline of some procedures and methods I have learned and used. While others may be able to add lots of comments to such an outline, it is a starting point should you wish to hang around with attorneys.
- Legal cases are not “normal” cases and they are not obvious. If the solution were “obvious”, it would not constitute a legal matter. If it looks “obvious” to you, you need to do more work.
- Criminal and Civil cases are different. You should know how and why.
- Workers’ Compensation cases vary by state (they are the most common cases and allow for little variation). Get to know the regulations.
Cases, like Gaul, are “divisa in tres partes”, each of which deserves in-depth consideration
- Up-front preparations
- Read ALL, and I mean ALL, documents associated with the case, not just some. If an attorney objects, ask why and be careful.
- Calibration—best to do your own. And, just before testing.
- Complete all of your forms (Don’t use a “standard” history form—develop a special legal Hx form. This is likely the most important thing you will do in the case.)
- Make sure your office looks efficient and functions smoothly.
- The Evaluation
- Do NOT use your standard procedures—think about the order of test presentation, and
- Let the test data determine a logical (to others) sequence.
- Be careful of “predetermined” decisions, sic; order of tests, what the attorney would like you to conclude, other test results, etc.
- Adhere to the accepted testing standards of the profession and be prepared to reference those standards.
- The report, deposition or other action
- Don’t write a report unless it is really thorough and complete—it’s the easiest and first thing someone will criticize. Reports are discoverable.
- Justify data and conclusions with references that just about anyone can easily find (sic: Google search).
- Don’t say anything to one attorney that you wouldn’t say to all attorneys.
Some General Advice
- Thunder is correct in that most cases never reach the courtroom. Rejoice in this fact and always try to avoid courtrooms.
- If you ever participated in organized debates, you will recall that debate is not always about the “truth”. Legal cases especially are about the best arguments.
- In court or in deposition, even the friendliest and best-looking attorneys will try their best to make you look ignorant and wrong. That’s their job.
- The opposing side:
- Won’t like or respect you,
- Won’t need you when they say they will,
- Will always ask the “wrong” questions,
- Will lead you in the wrong direction, and
- Want you to keep talking.
- Smart experts believe in written contracts for payment. Some attorneys will ask you to take a lien. DON’T! Determine fees for everything, take a retainer if possible, and get it in writing (State Bar associations will help you get paid if you have proof.)
Start with Thunder’s suggestions, especially about thinking through all aspects. Go to Amazon, search “expert testimony textbooks”, and buy some books. Attend a lecture or two. And, if you are called on to evaluate and testify in some manner, hold up your profession and don’t’ make other audiologists look bad.
Dr. Metz has been a practicing audiologist for over 45 years, having taught in several university settings and, in partnership with Bob Sandlin, providing continuing education for audiology and dispensing in California for over 3 decades. Mike owned and operated a private practice in Southern California for over 30 years. He has been professionally active in such areas as electric response testing, hearing conservation, hearing aid dispensing, and legal/ethical issues. He continues to practice in a limited manner in Irvine, California.