Doctors, squeal on thyselves

Opinion

Hey there, time traveller!
This article was published 05/02/2011 (5337 days ago), so information in it may no longer be current.

CALGARY — For 20 years, Dr. Charles Smith was considered one of Canada’s leading experts in pediatric forensic pathology. In 1992, he was named head of the Ontario Pediatric Forensic Pathology Unit, based at the Hospital for Sick Children in Toronto.

Whenever there was a suspicious or unnatural death of a child, Smith was called on to examine the body, obtain medical evidence and testify to his findings in a court of law.

But Smith wasn’t the expert witness the courts believed him to be.

Smith’s deceptions caught up with him this week as the College of Physicians and Surgeons of Ontario revoked his licence to practise medicine, directed him to pay $3,650 to cover the costs of the hearing and ordered him to reappear in March for a public rebuke.

In pleading no contest to the charges of misconduct and incompetence, Smith agreed to a statement of facts, including failing to adequately investigate cases and giving “false and misleading statements to the court.” He also often exaggerated his credentials.

His lack of forensic training was compounded by habitual sloppiness, a failure to complete reports in a timely manner and an inability to keep track of key evidence. Consequently, the integrity of evidence and investigations was seriously compromised. Overall, he was found to have made serious errors in 20 investigations, the majority of which led to charges against parents or other caregivers.

As a result of his flawed investigations, lives were destroyed. Parents were wrongly found guilty of killing their children and sent to jail. The remaining children were taken away from their families. Individuals were labelled as child killers and sex offenders when, in fact, they were not.

This bizarre situation suggests there is a more systemic problem in our legal system — determining the validity of expert testimony.

Lawyers and judges can’t fully understand the vast quantities of medical evidence that come before them in trials. Therefore, they rely on the expert opinion of an independent medical examiner — a doctor who is supposed to be independent and unbiased.

But, in relying on expert opinion, there is an inherent assumption that those opinions are valid. In 2006, a B.C. Court of Appeal ruled that independent medical examinations could not be tape recorded. The ruling was made, in part, because of the court’s presumption that professionals have the qualifications to practise and their opinions are, therefore, valid.

A second potential problem is that legal cases are decided on a case-by-case basis, so judges and lawyers may not see the same expert witness in more than one trial. In that case, it is difficult to discern any kind of pattern to his/her testimony.

But we all know that lawyers and judges talk; that the names of expert witnesses get around and that, in some cases, medical doctors know how their colleagues operate. In some provinces, there are a few doctors who do most of the expert testimony in legal trials.

In the present case, there were constant complaints about Smith’s sloppiness. Surely, such concerns made their way into professional conversations around the water cooler.

In such cases, the issue is whether one professional is willing to question the competence of a colleague.

It is up to the provincial college to regulate physicians and, just this week, the Saskatchewan College of Physicians and Surgeons publicly stated that doctors are “utterly failing” to protect the public by not reporting colleagues who are failing to provide an acceptable level of care.

But physicians there — and elsewhere — will likely remain unwilling to expose their incompetent peers, thereby perpetuating the myth that all doctors are equally qualified.

A final issue is paying doctors large sums of money for their expert opinions. In some cases, such sums could easily convince some doctors to slant their testimony to favour the legal team paying the bills.

In Smith’s case, he believed himself to be an advocate for the dead children and his testimony obviously reflected that bias.

His case should shed light on some of the systemic issues that allow bad doctors to become “expert” witnesses.