Several years ago, I was called by a defense attorney about a case where a man was alleging emotional distress as a result of a brain injury following a fall while on a ship. The general facts are the man was standing on a hatch cover of an historic ship when he fell backwards striking the back of his head, which resulted in a coup-contrecoup injury and skull fracture. He was unconscious for many minutes, initially had a Glasgow Coma Score (GCS) of 7, and was hospitalized. While in the hospital, he had a grand mal seizure. Thereafter, he suffered difficulty organizing his thoughts and there was evidence about some problems with memory and organizational ability.
As an element of his claim for damages, the gentleman alleged emotional distress since his injury caused him to lose his high-paying executive job; he was placed in a more subordinate position in the same company. I was asked to evaluate the medical records regarding past psychiatric treatment and his course of recovery, as well as to examine him clinically in order to determine his present state of emotional distress. I was then asked to render an opinion about prognosis and need for subsequent treatment. This gentleman already had been evaluated by several neurologists, both clinically and in a forensic setting as well as having serial neuropsychological testing.
When I undertook this case, it appeared relatively straightforward. There was not much question about liability in the defense attorney’s mind and no expert before me had rendered any opinion diminishing the liability of the ship owner. All the issues appear to be focused on damages. As is my practice, I personally reviewed all of the medical records including the neurological records and collateral witness statements as well as the deposition testimony. One of the witnesses, a stranger to the plaintiff, described the plaintiff’s fall as occurring with him standing with his back to the edge of the hatch cover whereupon he fell straight backwards, striking the back of his head. Another witness, a relative of the plaintiff, also described him as falling backwards “as if he was a log,” striking the back of his head. There was no question clinically that when he fell backwards he struck the back of his head because there was a nondisplaced skull fracture there.
At this juncture, I must mention that psychiatrists, myself included, must demonstrate proficiency in neurology as well as psychiatry in order to become psychiatrists (likewise neurologists must demonstrate proficiency in psychiatry as well as neurology in order to become neurologists). This is why Board Certification is made by the American Board of Psychiatry and Neurology. My Bachelor’s Degree is in Physiology from the University of California, Berkeley, and I always have had an abiding interest in neurology and its interface with psychiatry. In this particular case, I was struck by the description of the witnesses about the characteristics of the plaintiff’s fall, i.e., ‘straight backwards like a log.’ I questioned seriously in my mind whether the plaintiff had a seizure causing his fall, for the following reason:
Humans, like cats and other mammals, have a “righting reflex,” whereby if they are falling in space their balance reflex adjusts, causing them to twist in space in order to land in a safer manner. If you are conscious, the righting reflex is intact but if you are unconscious such as during a seizure then the righting reflex is absent. It appeared to me that in the fall of this gentleman, his righting reflex was absent, suggesting to me that he was probably already having a seizure before the fall and that the seizure caused the fall, leading him to fall straight backwards, suffering a skull fracture.
I telephoned the neurologist on the case with my hypothesis and he agreed. I was probably right. The diagnosis of a grand mal seizure existing after the fall and because of it was therefore a red herring and the more likely explanation was that this man suffered a grand mal seizure before the fall, which was why he fell.
With my alternative explanation, the whole issue of causation was revisited. The plaintiff’s neurologist was then queried about this alternative hypothesis and he agreed that it was a viable hypothesis.
Within two months of my review of the records and examination of the plaintiff, the value of the case was adjusted and both the plaintiff and defendant agreed on a settlement, which reflected the alternative hypothesis about causation.
This case, as have others, taught me the importance of reading all of the records, not just the psychiatric records, since my medical training and experience is not limited to psychiatry. I believe the forensic expert should read the records personally and not rely on a summary prepared by another medical expert such as a nurse practitioner or other physician. I have been asked in the past to do that and have refused. I think it is a bad practice and diminishes the expert’s ability to apply his or her expertise and therefore enhances his/her reliability. I believe that when an expert renders an opinion, having personally read all of the relevant records, that expert’s opinion is more reliable because all of the facts have been considered. When the expert has a rich background of experience and diverse expertise his or her opinion is all the more reliable as fewer subtleties in the records will be overlooked and greater insight will have been gleaned.
