Risks, Responsibilities and Liabilities
The formal tasks that forensic pathologists and neuropathologists are asked to perform in the courts vary from country to country according to convention and statute, and will therefore not be dealt with in detail here. For details on the role of expert forensic witnesses in U.S. courts, the reader is referred to Leestma and Magee (1988), and for the English system to Knight (1996). In all different countries the forensic pathologist/neuropathologist is accountable primarily to legal authorities, i.e., the judiciary, lawyers, and/or public prosecutors. But they cannot avoid an additional, specifically medical/ethical responsibility, which extends to questions of experimental neuropathology and neurology, i.e., the use of certain experimental diagnostic and therapeutic methods, and to civil and political actions such as maltreatment and torture.
To our knowledge, no legal system in the world places physicians as physicians under the threat of civil liability. Physicians, therefore, are subject to the general rules of liability, with the effect that modern laws of medical liability are a part of case law created by the courts in most countries.
Beyond this formal task, a second justification forms the basis of the forensic physician’s conception of his efforts: the prevention of unnatural death as well as the prevention of injury as a result of maltreatment and torture. Unnatural deaths are preventable and therefore — of course — of eminent interest in the field of (forensic) medicine. Recognition of violence, maltreatment, and torture is an especially important task of the forensic physician (Oehmichen 1999; Hall 2000; Barnett 2001), who is duty-bound to undertake all measures necessary to prevent these forms of violent injury before they result in death. Even if such a case has ended in death, measures must be taken to prevent others from becoming further victims. The appropriate civil and/or law enforcement agencies must be informed, and, in certain circumstances, the public itself. This duty must be fulfilled not only in cases of violence and maltreatment within a family or specific social group, but also in cases of maltreatment on the part of the police, prison guards, and/or the public prosecutor’s office. Such a task is of particular importance — and entails real risks — in countries where torture is still officially tolerated. If violence, maltreatment or torture is observed or suspected, the physician — even the forensic neuropathologist — is obliged to register a protest from the medical point of view.
KeywordsExpert Witness Diffuse Axonal Injury Civil Liability Formal Task Medical Liability
Unable to display preview. Download preview PDF.
- Bronstein DA (1999) Law for the expert witness. CRC, Boca Raton, Fla.Google Scholar
- Dressler J (ed) (2002) Encyclopedia of crime and justice, 2nd edn. MacMillan Reference, New YorkGoogle Scholar
- Leestma JE (1988) Forensic neuropathology. Raven, New YorkGoogle Scholar
- Matson JV (1999) Effective expert witnessing. CRC, Boca Raton, Fla.Google Scholar
- Barnett PD (2001) Ethics in forensic science: professional standards for the practice of criminalistics. CRC, Boca Raton, Fla., p 1184Google Scholar
- Cechetto DF (2000) Neuropathology and cardiovascular regulation. In: Ter Horst GJ (ed) The nervous system and the heart. Human Press, Totoja, N.J., pp 159–179Google Scholar
- Dawidoff DJ (1977) Causation. In: Tedeschi CG, Eckert WG, Tedeschi LG (eds) Forensic medicine, vol III. WB Saunders, Philadelphia, Pa., pp 1660–1664Google Scholar
- Erdreich LS (1999) Using epidemiology to explain disease causation to judges and juries. In: Meyer C (ed) Expert witnessing. Explaining and understanding science. CRC, Boca Raton, Fla., pp 173–183Google Scholar
- Finkelstein C (2002) Civil and criminal divide. In: Dressler J (ed) Encyclopedia of crime and justice, vol 1. MacMillan Reference, New York, pp 160–161Google Scholar
- Hall RAS (2000) The ethical foundations of criminal justice. CRC, Boca Raton, FlaGoogle Scholar
- Helpern M (1977) The responsibility of the pathologist in workmen’s compensation claims. In: Tedeschi CG, Eckert WG, Tedeschi LG (eds) Forensic medicine, vol III. WB Saunders, Philadelphia, Pa., pp 1675–1680Google Scholar
- Kernbach-Wighton G, Sprung R, Kijewski H, Saternus K-S (2003) Höchsterregung und plötzlicher Tod. In: Saternus K-S, Kernbach-Wighton G (eds) Fixierung erregter Personen. Todesfälle in Klinik und Gewahrsam. Research in legal medicine, vol 28. Schmidt-Römhild, Lübeck, pp 55–74Google Scholar
- Knight B (1996) Forensic pathology. Arnold, LondonGoogle Scholar
- Leithoff H (1992) Ärztliches Gutachten. In: Schwerd W (ed) Rechtsmedizin. Lehrbuch für Medizin und Juristen. Deutscher Ärzte-Verlag, Cologne, pp 261–269Google Scholar
- Martens C-P (1999) The role of experts in German environmental law. CRC, Boca Raton, Fla., pp 89–97Google Scholar
- Moore MS (2002) Causation. In: Dressler J (ed) Encyclopedia of crime and justice, vol 1, 2nd edn. MacMillan Reference, New York, pp 150–160Google Scholar
- Myers JEB (2001) Medicolegal aspects of child abuse. In: Reece RM, Ludwig S (eds) Child abuse. Medical diagnosis and management. Lippin, Williams and Wilkins, Philadelphia, Pa., pp 545–562Google Scholar
- Shepherd JP (1993) Presenting expert evidence in criminal proceedings. BMJ 307:317–318Google Scholar
- Zülch K-J (1969) Medical causation. In: Walker AE, Caveness WF, Critchley M (eds) The late effects of head injury. Charles C Thomas, Springfield, Ill., pp 453–472Google Scholar