Healthcare and the law: a view from the bar

When a patient's care becomes the subject of medical-legal litigation, those from healthcare involved in the case may not understand the decisions of the lawyers and the final judgment of the judge. An appreciation of how legal professionals review healthcare decisions requires an understanding of the process that courts follow in analyzing medical cases and arriving at their own legal judgments. The concept of "medical evidence" can also be problematic. Since lawyers and judges are not medically trained, how lawyers present their evidence and how judges or juries review and understand that evidence can have an enormous impact on the outcome of litigation. This article outlines the types of evidence. When a medical event is reviewed in isolation in a non-medical setting - such as a courtroom - there are obvious problems with omission of the larger contextual background. In this paper, an actual legal case is reviewed, serving as an example of how such problems may be handled. There are factors other than those pertaining to the immediate medical case that have a role in shaping the medical judgment, including other ongoing events, changing medical standards and a reliance on outside resources.

Legal consequences for torture in children cases: the Gomez Paquiyauri Brothers vs Peru case

The Gomez Paquiyauri Brothers case, before the Inter-American Court of Human Rights, was the first international case concerning the protection of children in the context of armed conflict where an international court stated the law concerning the duties of States towards children even in the context of war, and provided for reparations. As such it represents a landmark decision. The case arose from the illegal detention, torture and extrajudicial execution of two minors, Emilio and Rafael Gomez Paquiyauri, at the hands of Peruvian Police in 1991, under the Fujimori Administration at a time when the internal war in Peru was at its peak. Unlike most cases coming to the jurisdiction of the Inter-American Court, the case had been subject to domestic criminal investigations that had led to the convictions of two low ranking policemen. Yet a more subtle pattern of impunity lied at the root of the case. Torture had been denied by the State, and the prosecutions of low ranking policemen had intended to cover up the responsibility of those who ordered a policy of torture and executions (including the existence of secret codes for the torture and elimination of suspects of "terrorism") during the years of the internal armed conflict in Peru. The joint work of legal and medical expertise in the litigation of the case permitted the establishment of the facts and the law, obtaining an award of 740,500 dollars for the victims and a number of measures of reparation including guarantees of non-repetition and satisfaction, such as the naming of a school after the victims.

[Legal aspects of the health care institution liability for nosocomial infections]

In this paper, the basic concepts concerning the liability of health care institution for nosocomial infections are presented. The principles of ex contracto and ex delicto liabilities, as well as the concept of so-called anonymous guilt are discussed. The range of duties for both the health care institution and the employed medical personnel is indicated, the duties and the consequences of their non-fulfillment are systematized, and the obligatory jurisdiction concerning the functioning of prima facie evidence is considered. The author aimed at explaining the principles governing the civil liability of health care institutions and their employees.

Child soldiers as zones of violence in The Democratic Republic of Congo: three cases of medico-legal evidence of torture

This article sets medico legal light on torture of three former child soldiers by comparing torture methods, consequences of torture and medical observations. It is focused on these child soldiers as representatives of the many abuses of children as soldiers in armed groups. The three persons were child soldiers during 12 years in The Democratic Republic of Congo (DRC) as members of three different armed groups. They were exposed to armed conflict events, experienced torture, and participated in atrocities, sexual abuse and traditional rituals during their role in armed conflict. They were psychologically distressed with unhealthy physical and mental states. The principles for working with child soldiers are described. The model addresses basic items: The confluence of the dimensions of the items will determine the specifics of medico legal evidence of torture in child soldiers, taking into consideration inputs that are required at the macro, community and individual levels. A primary goal is to prevent violence from occurring in child soldiers. Thus, much more deliberate effort is made to address the underlying causes of recruitment of children in armed groups in DRC and to invest more resources in conflict resolution before there is an outbreak of violence. Peace education tends to be introduced too late and does little to alleviate the use of children in armed conflict in DRC.

Assessing Fourth Amendment challenges to DNA extraction statutes after Samson v. California

DNA plays an indispensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes that courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.

Expertise of body injuries in criminal procedure

In the every day practice of answering questions from the area of medicine, today there is growing need for forensic medical expertise of body injuries in the criminal procedure. Furthermore, when qualifying the body injury, the expert must possess knowledge and experience not only medical, but also he/she must be aware of the legal requirements and norms from the Code of Criminal Procedure and the Criminal Code of R. Macedonia. This will enable the expert to contribute to explanation and clarification of certain facts and issues related to the body injury. In this paper, by citing Articles 255 and 256 from the Code of Criminal Procedure, it is explained how expert can be adequately selected by the court. In addition to this, by citing Article 271 from the aforementioned Code, a way of analysing body injuries is defined; and finally, defining of body injuries is explained through citing of Article 130 and 131 from the Criminal Code of R. Macedonia, which is regarding body injury and grave body injury. The aim of this paper is to outline the method of performing these forensic medical expertises, i.e. by who and when can expertise of body injuries be asked and moreover, what is the legal and ethical responsiblity of the expert during the execution of the expertise. Additionally, the steps that the expert should follow when preparing a written statement and opinion for the type of the body injury are explained. More specifically, emphasis is placed on expert's requirements after examination of injured individual; after revision of the medical documentation during expertise of body injuries in criminal subjects; and providing oral statement and opinion during the criminal procedure.

[Comparative analysis of suicides in the Bydgoszcz region in the years 1977-1991 and 1991-2006]

An increasing number of suicide cases has been observed in everyday forensic practice. The same view is discernible in the perception of the general public. Data concerning this subject from the years 1991 to 2006 have been compiled and compared to the earlier investigations from the years 1977 to 1991. The comparative analysis allowed the authors to show a relatively reliable picture of suicides in the Bydgoszcz region. Many false beliefs and myths pertaining to the subject were disproved. The authors also presented the evolution in the approach of penal legislators to the issue of suicide.

[On the criteria for the forensic medical appraisal of harm to the human health from thermal injuries]

"Rules for forensic medical determination of the severity of bodily injures" currently used in practical expertise are at some variance with the Criminal Code and the Criminal Procedure Code of the Russian Federation. Their analysis taking into account the available clinical reports and the results of our original studies of archive materials made it possible to propose and substantiate additional criteria for the assessment of harm to the human health from thermal injuries.

[Forensic medical assessment of health status dynamics in a victim of fatal traumatic subdural hematomas]

The objective of the study was to evaluate the clinical condition of a subject with fatal traumatic subdural hematomas (SH) with special reference to such factors as the patient's age, the presence of concomitant intracranial injuries (ICI), and the total volume of hematomas. The study allowed to determine the length of the period during which persons with isolated subdural hematomas or hematomas associated with subarachnoidal hemorrhages (SAH) and brain contusion (BC) are still capable of active actions. Distributions of the duration of lethal traumatic compression of the brain were revealed and analytically described in case of secondary intrastem hemorrhage (ISH) and in its absence. A method is proposed in which the presence of ISH is used as a basic characteristic for the objective estimation of the length of the integral terminal interval during which the patient is still able to act. The results of the study may find practical application for the purpose of forensic medical examination of craniocerebral injuries with SH.

[Postoperative foreign objects in the abdominal cavity]

The study was designed to elucidate the circumstances under which iatrogenic foreign objects can be mistakenly left inside the patient's body after surgical interventions and to outline measures to prevent such errors. The data obtained in forensic medical examination of two cases of urgent surgery on abdominal organs are analysed. They indicate that the main causes of leaving behind foreign bodies in a patient include improper organization of emergency medical aid, personal qualities of the surgeon, and psycho-emotional atmosphere during the operation. Comprehensive evaluation of the associated clinical symptoms and their dynamics is necessary for early identification and removal of foreign objects left in the abdominal cavity. It would help to avoid undesirable outcomes of surgery and reduce the number of legal proceedings against medical and preventive treatment facilities.

Expertise in bodily injuries in criminal procedure

In the day-to-day practice of answering questions from the area of medicine today, there is a growing need for forensic medical expertise in bodily injuries in criminal procedure. Furthermore, when qualifying a bodily injury, the expert must possess knowledge and experience not only medical, but s/he must also be aware of the legal requirements and norms of the Code of Criminal Procedure and the Criminal Code of R. Macedonia. This will enable the expert to contribute to the explanation and clarification of certain facts and issues relating to the bodily injury. In this paper, by citing Articles 255 and 256 of the Code of Criminal Procedure, it is explained how an expert can be appropriately selected by the court. In addition to this, by citing Article 271 of the afore-mentioned Code, a way of analysing bodily injuries is defined; and finally, the definition of bodily injuries is explained through citing Articles 130 and 131 of the Criminal Code of R. Macedonia, relating to bodily injury and grave bodily injury. The aim of this paper is to outline the method of performing this forensic medical expertise, i.e. by whom and when can expertise in bodily injuries be sought and, moreover, what is the legal and ethical responsibility of the expert during the execution of the expertise. Additionally, the steps that the expert should follow when preparing a written statement and opinion on the type of the bodily injury are explained. More specifically, emphasis is placed on the expert's requirements after examination of the injured individual; after revision of the medical documentation during expert assessment of bodily injuries in the case of criminal subjects; and providing oral statements and opinions during the criminal procedure.

[Criteria of estimation of state forensic-medical expert activity administration]

Criteria of estimation of state forensic medical activity administration were systematized and their content was considered. New integral index of administration efficiency - index of technological efficiency - was developed and proved.

[Injuries of the vertebral column--differentiating between natural illnesses manifested at work and illnesses caused by work accidents. Opinionating problems in cases associated with recognizing an event as a work accident in the analysis of materials of the Chair and Department of Forensic Medicine, Medical University of Silesia]

In opinionating practice of the Department of Forensic Medicine, Medical University of Silesia, a substantial problem is posed by cases associated with qualifying an event as a work accident or a "natural" illness manifested at work, when the consequence is spinal injury, especially of the overwork (surcharge; overstrain) character. Between 1998-2007, among all 284 medicolegal opinions concerning work accidents and their consequences, 76 opinions (27%) referred to vertebral column injuries or radicular pain syndromes. This has prompted the authors to investigate the problems of spinal injuries analyzed in the context of recognizing an event as a work accident. The paper constitutes a preliminary report and material for more extensive deliberations, demonstrating problems faced by experts passing opinions in cases of this type. In addition, the authors present their observations addressing legal regulations in force and common opinionating practices.

[Scope and interpretation of laboratory tests in HBV/HCV infections--interpretation for medico-legal certification aspects]

Determination of medical effects of HBV/HCV infections, assessment of detriment to health and/or evaluation of effectiveness of therapy and prognosis are essential in medico-legal certification and are of a high value in civil, compensative cases. The author presents the scope of diagnostic laboratory tests, imaging examinations and determinations of HBV/HCV infection markers that are necessary for a possibly complete and objective assessment of future health consequences. The scope of the above tests and examinations and the interpretation of their results combined with clinical assessment and disease course evaluation allow for determining the degree of infection activity, intensification of the infectious-necrotic processes in the liver as well as hepatic competence and possible liver function impairment. Based on approximately 400 reviewed and evaluated cases, the author emphasizes divergences between standards imposed by contemporary diagnostic management practices and organs of hepatological supervision, recommendations of university-affiliated centers in chronic liver pathologies, and the "real-life" diagnostic practices in hospital wards and specialist outpatient clinics. The limitations (usually financial in character) that affect diagnostic management often cause severe difficulties in medico-legal opinionating.

[Thromboembolic complications in orthopedic surgery--medico-legal assessment in evaluation of correctness of medical treatment in selected cases]

Thromboembolic events continue to account for a high percentage of complications after orthopedic surgery. Of significance in prevention of these diseases is appropriate pharmacotherapeutic prophylaxis, both pre and postoperative, as well as orthopedic and trauma surgeons being aware of the risk of such complications and of possibilities of avoiding or minimizing thromboembolic events. The authors present some cases that were certified in Chair of Forensic Medicine, Silesian Medical University in Katowice, in which thromboembolic complications did develop after conservative or surgical orthopedic treatment, emphasizing possible difficulties in unequivocal assessment of the cause-effect relationship between the employed treatment and the thromboembolic event in the aspect of medico-legal certification.

[Medico-legal assessment of medical management in "chest pain" cases based on the review of cases analyzed in the Chair and Department of Forensic Medicine, Medical University of Silesia, Katowice, in the years 2000-2006]

Among all investigations aiming at assessing medical management carried out in our department between 2000 and 2006, the cases of "chest pain" constituted the largest percentage. In 70% of such cases, the employed medical procedures were found to be incorrect; what might be qualified as medical decisive errors, committed in rescue ambulances, outpatient clinics or in admission rooms. The authors present some examples of causes of such incorrect management strategies, such as neglecting proper and profound clinical examination (with medical history taking); lack or incomplete differential diagnosis; failure to observe appropriate critical attitude and prudence; focusing only on one, most common disease.

[Total permanent or major permanent inability to work in profession. Remarks about the possibility of criteria verification in medico-legal opinionating in criminal cases]

Despite the fact that some criteria of medico-legal certification in criminal proceedings have been established, there are still some areas that--parallel to changes occurring in contemporary society--have started to be controversial. This phenomenon has prompted the authors to attempt establishing new criteria for certification in total/major permanent inability to work in profession. This work is a continuation of a cycle devoted to interpretation of article 156 of the Penal Code to meet the needs of medico-legal opinionating.

[A serious group accident in Zabrze-Bielszowice Coal Mine--medico-legal evaluation of health consequences for the purpose of criminal proceedings]

On February 23/24, 2003, in Zabrze-Bielszowice coal mine, 840 m below the surface, a methane blast occurred twice. In group accidents, a total number of 35 miners were injured; the majority of them experienced extensive thermal injuries. The authors compiled a list of body injuries, including their character, severity, initial clinical assessment and types of employed medical procedures, taking into consideration also medical certification of the Social Insurance and results of medico-legal examinations of the miners. Department of Forensic Medicine in Katowice prepared comprehensive medico-legal opinions during preparatory prosecuting proceedings followed by precise, individualized opinions for the court, concerning legal qualification of the injuries, their underlying mechanisms, but also mental and physical suffering, treatment-associated hardships and prognosis for the future.

[Forensic expertise in the Defense Ministry of Russian Federation: modern status and perspectives of development]

The article presents a summary of history of creating and elaborating of military forensic medicine, it's now-day condition and perspectives of future evolution. Authors mark necessity of material and technical reequipment of SFE of DF of RF, of improvement of system of preparing of the staff, of uniting of SFE and of agencies of military justice.

[When medical records are the best witness]

This article looks at the development in the increasing use of medical records in the Danish Courts as well as outside the courts in cases of personal injury. The Danish Supreme Court puts the presence of all material above the protection of the confidential relationship between doctor and patient. It is not yet clear to what extent the use of medical records will be accepted. This development raises questions regarding legal security for patients and sets higher requirements for medical and legal personnel. Medical records give important testimony in cases regarding personal injury. It is therefore important for medical personnel to be aware of the content of the medical record, as it might be used and interpreted in the courtroom in a different manner than intended.

[Concerning the criteria of expert assessment of unfavorable outcomes in implantological stomatology]

The state of complex forensic-medical expertise in implantological stomatology was analyzed in the article. The questions of assessment of medical aid quality with the use of score system of risk degree and factors determination are considered. The authors suggest to use the score system of unfavorable outcomes with the purpose of objectification of expert conclusions.

Trivial trauma, heart disease and medico-legal interpretation of death

Forensic experts are often required to give an opinion on the cause of death and its medico-legal interpretation in cases where an individual dies after receiving non-fatal injuries and at autopsy is discovered to have had a natural disease that alone could have caused death. The significance of this varies in different countries depending on the local laws relating to death in cases of trivial trauma associated with natural disease. This paper discusses this issue from an Indian perspective with the help of an illustrative case report and highlights the importance of the forensic pathologist in such cases.

[Possibilities of medical opinionating in cases associated with "exposure to direct danger of death or serious health damage"]

In the opinion of some forensic medicine experts, assessment of potential consequences in keeping with Article 160 of the Polish Penal code, which refers to the crime of "exposure to direct danger of death or severe health damage", lies within the competence of medicolegal specialists. This view is accepted by courts and prosecution offices. However, the knowledge of physicians in the field of predicting consequences which did not occur is only somewhat better than that of lawyers. In simple cases, e.g. in trauma involving a sensitive area of the body, passing an opinion confirming a serious danger is not associated with any major problems. Similarly, no problems arise when passing an opinion on the lack of such a danger e.g. in the case of traumawithout any injuries. In complex cases, however, which include the majority of medical error cases, passing an opinion on exposure to direct danger of death or severe health damage may be not feasible.

[Unfavorable outcome of medical service: study of the problem in forensic medicine]

The main tendencies in the development and study of the problem of unfavorable outcome and expert assessment of quality of medical aid were examined. Russian and foreign forensic medicine and juristic practice were compared. A combined approach to improve of forensic medical expertise and to prevent delinquencies of medical stuff was proposed.

[Medicolegal opinions assessing the ability to undergo imprisonment vs. capacity of the Prison Health Service facilities]

Estimating the subject's ability to undergo imprisonment has become a medicolegal opinionating problem. Polish penal law indicates the presence of negative prerequisites, such as a "serious disease" and "important health-associated reasons". In these cases, the conditions of imprisonment pose a direct danger of death or detriment to health. Interruption of imprisonment or remission of the penalty of imprisonment must constitute the only possibility of avoiding such dangers. In his opinion, the expert should define the health-associated needs of the condemned and the possibilities of meeting such needs in the situation of imprisonment, also taking into consideration the capacity of the prison health service facility and its cooperation with regular health care institutions.

[Bacterial nosocomial infections in the material of the Chair of Forensic Medicine, Collegium Medicum, Medical University in Bydgoszcz in the years 2000-2006]

The ever increasing number of legal claims and lawsuits associated with nosocomial infections has become a serious problem. The present authors analyzed the medicolegal opinions regarding nosocomial bacterial infections issued by the faculty of the Bydgoszcz Department of Forensic Medicine in the years 2000-2006. Within the evaluated period, the investigators observed an increase in the number of court cases concerning hospital-acquired infections. The most frequent pathogen was Staphylococcus aureus.

Secondary trauma in the legal professions, a clinical perspective

This article describes the importance of being aware of secondary trauma in lawyers, interpreters, judges, police, forensic physicians and other professionals that work with traumatized clients. In addition, it presents a psycho-educational model developed by the author to address secondary trauma among those associated with the legal and clinical professions.

HIV forensics: pitfalls and acceptable standards in the use of phylogenetic analysis as evidence in criminal investigations of HIV transmission

BACKGROUND

Phylogenetic analysis - the study of the genetic relatedness between HIV strains - has recently been used in criminal prosecutions as evidence of responsibility for HIV transmission. In these trials, the expert opinion of virologists has been of critical importance.

PITFALLS

Phylogenetic analysis of HIV gene sequences is complex and its findings do not achieve the levels of certainty obtained with the forensic analysis of human DNA. Although two individuals may carry HIV strains that are closely related, these will not necessarily be unique to the two parties and could extend to other persons within the same transmission network.

ACCEPTABLE STANDARDS

For forensic purposes, phylogenetic analysis should be conducted under strictly controlled conditions by laboratories with relevant expertise applying rigorous methods. It is vitally important to include the right controls, which should be epidemiologically and temporally relevant to the parties under investigation. Use of inappropriate controls can exaggerate any relatedness between the virus strains of the complainant and defendant as being strikingly unique. It will be often difficult to obtain the relevant controls. If convenient but less appropriate controls are used, interpretation of the findings should be tempered accordingly.

CONCLUSIONS

Phylogenetic analysis cannot prove that HIV transmission occurred directly between two individuals. However, it can exonerate individuals by demonstrating that the defendant carries a virus strain unrelated to that of the complainant. Expert witnesses should acknowledge the limitations of the inferences that might be made and choose the correct language in both written and verbal testimony.