Exploring Brain Injury Forensics: The CRED Approach

Welcome to the first ever Brain Injury Forensics Podcast! Join Dr. Batson and Dr. Goldenberg,  as they delve into the complexities of brain injury cases. This episode offers insights into the CRED approach—Critical Review, Expertise, and Due Diligence. Get ready for in-depth case analyses, academic rigor, and a nuanced exploration of the world of brain injury forensics.  Thank you for tuning in to the Brain Injury Forensics Podcast, where expertise meets education in the pursuit of unraveling forensic mysteries.

Learn more at https://braininjuryresearchsolutions.com/ or email us directly at info@braininjuryresearchsolutions.com

The information provided on the Brain Injury Research Solutions podcast is for
general informational and educational purposes only and is not medical, legal, or
other professional advice. You should not rely on the information provided in the
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Transcript

Introducer
00:02
Welcome to the Brain Injury Forensics Podcast presented by Brain Injury Research Solutions, a forensic services and contract research organization. Join doctors Richard Batson and Joshua Goldenberg as they interview nationally and internationally renowned experts and dive into the latest developments in brain injury forensics, applied medical research, state-of-the-art forensic methodologies, gold standard advanced neuroimaging and numerous brain injury related medical topics.

Dr. Goldenberg Co-host
00:37
This is just a reminder before we start that while we are doctors and have advanced training in forensic medical science and forensic epidemiology, and we will be discussing topics that involve medicine and the law, the information in this podcast is not medical, legal or other professional advice, and this podcast is provided for informational and educational purposes only. You should not rely on anything you hear as a substitute for medical care by a physician or other qualified medical professional or legal advice from a licensed attorney. Always consult with your physician or other qualified medical professional for medical advice and an attorney for legal advice.

Hello, Dr Batson, and welcome to our first installment of the Brain Injury Forensics Podcast. How are you doing, sir?

Dr. Batson Co-host
01:28
I'm doing pretty well today, Dr Goldenberg.

Dr. Goldenberg Co-host
01:31
Yeah, this is a pretty exciting time. I mean, you and I have talked about doing something like this for at least a couple years. You and I have been working together in brain injury forensics for, I want to say, five years, which sounds kind of crazy to me, but I think it might be true. But yeah, it's kind of fun to actually sit down and start recording something together.

Dr. Batson Co-host
01:53
Definitely Looking forward to it.

Dr. Goldenberg Co-host
01:54
Sweet. So I think for our audience, we should probably explain who the heck we are to begin with and what our interest in brain injury forensics are, what the interests are and how we got here, maybe, and then what we're hoping to do with this podcast, what are your dreams and expectations for it too. So why don't you start us off, kind of tell us a little bit about yourself and what you're hoping that we can make, besides just taking over the world one brain injury case at a time? So, if you like to get out of this podcast, what do we want to produce here?

Dr. Batson Co-host
02:29
I think, part of the goal here. First of all, let me start with my background. I am a doctor that comes out of a background in integrative medicine and was involved in similar to you in evidence synthesis and trying to improve standards of care in complementary and alternative medicine. In around 2017, I became more heavily involved in the brain injury medicine setting, at which point a year later I went back to do dissertation work in an area of brain injury referred to as post-traumatic hypotutrism, an area within endocrinology and neuroendocrinology where the pituitary gland is damaged and individuals develop select hormonal deficiencies. And since then I've moved into a PhD program in forensic medicine, epidemiology, another master's in trauma science and so forth.

So my clinical trajectory has been predominantly and now exclusively in the area of brain injury medicine, with a focus on continued research in neuroendocrinology. What got me into forensics or in later medical legal work was from my clinical work, and so I started seeing patients heavily in 2017 with brain injuries. And of course, a good percentage of those patients that have had brain injuries have litigation involved and a lot of them are in fact motor vehicle collisions or falls, premises liability cases, and it became a necessity to navigate the medical legal world within my forensic work, and so that's part of my journey is transitioning from purely clinical to incorporating a forensic or medical legal branch of my practice. I then met you, I believe in 2017 or 2018.

Dr. Goldenberg Co-host
04:28
Yeah, sounds about right.

Dr. Batson Co-host
04:29
We started working together and eventually developed a brain injury research company called Brain Injury Research Solutions, which works on developing white papers and high quality evidence synthesis research related specifically to brain injury and ally topics, and it's sort of taken off since then. So that's a little bit of my background. I'll throw it back to you, Dr. Goldenberg. You can share with the audience how you got involved with this work.

Dr. Goldenberg Co-host
04:59
I will, and it's been a crazy journey. But before I do so, I think your story about being a clinician and having a couple patients come to you that are involved with litigation and then transitioning is pretty common. I hear that a lot with forensics experts. But what was it about those early cases? Was it just random that they came to you and what was it that you were like oh man, this is what I want to focus on. Forensics is where it's at versus just straight up clinical Well, a couple things, I think.

Dr. Batson Co-host
05:31
The first was seeing that brain injury is complex and the symptoms and conditions what we would call sequelae medically that can develop even after things as simple as a concussion, are profound and life changing and require many different providers, oftentimes so a team what we would call a multidisciplinary team to address all of the different issues, and some of the medical care and treatments are covered by insurance and some are not, and so dealing with individuals that have chronic sequelae of brain injury, including sort of the classical post concussion syndrome or symptoms, costs a lot of money, and so the ones with genuine symptoms need more medical care than the average person and oftentimes don't have the money to pay for it, and their only recourse is compensation through the litigation environment. So initially it was recognizing those types of patients that needed ongoing medical care and didn't have the resources, and therefore, if they were appropriately compensated for their injuries, they would then be able to take the money from the settlement or the award in the case of a jury trial and go ahead and pay for the necessary medical care, and that could include everything from vision therapy, which can be very expensive, to neuro autology interventions, in some cases actually surgery on the inner ear. It can include ongoing counseling, neuropsychiatric interventions, cognitive rehabilitation, just to mention a few. So the first reason was to support patients and being able to actually fund their ongoing and necessary medical care. The second was that in the forensic space, when you're working on a case and you're, say, retained by a law firm to do so, you've got a lot more time than you have available in the clinical setting. So I got to jump into cases and interact in a much deeper way, more time to be able to get to the root of things, so to speak, than I would be able to do in a faster paced clinical setting.

So that was a second driver. And then I think the third driver was there's sort of a natural affinity between high quality forensics and I'll talk, we'll talk about the difference on. You know, something we call our credit approach, where we're looking at what does high quality forensic work look like versus sort of generic run of the mill, expert work, and seeing the differences between those two types of work. And I would say that the research space or the academic space closely parallels the forensic space when you're doing high quality forensic work in terms of the necessary rigor to provide that quality of work. So those parallel spaces, being a researcher myself and working on an academic track related to brain injury, at the same time doing forensic work those pathways are well married, so to speak.

Dr. Goldenberg Co-host
08:37
Yeah, I think that. So that's such a great segue because I think that's the crux of what we're trying to do is that that parallel path and the focus on careful, due diligence, research, sort of this academic quality approach to forensics, as opposed to having like, okay, we're clinicians and then 1% of the time we're going to testify, but really looking at forensics work as a subspecialty and something that really takes a lot of expertise. And so, just super briefly, I think I met you from speaking of. I was obsessed with evidence synthesis and evidence-based medicine and I think I was giving a day long course on that, or continuing education course on that, and out in Seattle, and I think that's where I met you. I think you came to the talk.

Dr. Batson Co-host
09:27
I recall.

Dr. Goldenberg Co-host
09:27
Yeah, I remember at the end you had a couple of questions and I just remember being like so impressed with the way you thought about things and I think that started it. I can't even remember the steps from there, but basically I think that started sort of this marriage between let's bring, and then I would learn more about this. Like, as you brought me in, I was learning more about the field of forensics and it was like shocking right, because I'm coming from this place of evidence-based medicine where you need to back up everything you say, you need high levels of evidence and yada, yada, yada. And then you'd look at the status quo out there and it would be kind of appalling. You would get clinicians coming up and just kind of opining and not citing anything and not giving any good rationale or not really spending any time at all.

And I think what to sort of underline what you said earlier is what really got me excited was can we bring this evidence-based approach to our forensics work and really change the world through that? And you know, in that journey you and I have met a lot of characters, including Dr Freeman, who's really sort of pioneered evidence-based forensics, and we'll probably talk more about him in the future, when now we're working under him. But I think that is really that's been my journey as well, and I think that's what really drives my excitement and passion about it too is bringing that level of rigor to an area that, at least I don't see that rigor currently applied.

Dr. Batson Co-host
10:59
Yeah, I mean, part of what you're highlighting is sort of you know and I've talked about this in some of my work which is that you know forensics, which can be either which is really just you know for the audience, if you're not familiar with that term, it's simply applying science to answer legal questions, and those legal questions could be criminal in nature or they could be civil in nature, and so when we talk about personal injuries that are not due to criminal activity, like an assault, for example, someone sustains a brain injury in a motor vehicle collision or they slip and fall because salt wasn't put down where it should have been on the premises when it was icy and slippery those are what we call civil. It would be civil litigation or personal injury cases, and that's predominantly the kind of work that we do, although we have done some a little bit of criminal as well, where assault was involved and so forth, and a murder case as well, but predominantly civil litigation. But one of one of the shocking things when I came into this environment, also from an evidence-based medicine background, was that the bar was really really really low for what an expert was in that environment and it was really just sort of what you and I refer to as the, the period prior to evidence-based medicine, which was really about what we call source credibility or authority, which is well okay. You've got these credentials and therefore what you say must be true. And with the age of questioning even science and the quality of science, most certainly you know, source credibility or authority based on credential is a thing of the past. Just because you have a credential in neurology or in, you know, brain injury rehab or in physiatry or whatever credential you may have, or you're a medical doctor, or you're a PT or whatever your credential may be that does not guarantee that you're going to engage in in high-quality forensic work or that your, your testimony, is credible.

And so I think, as our, as we were asked to review you know, hundreds of thousands of pages of records now at this point, and as well as many, many independent medical reports, it became glaringly obvious that the bar was really really low, and part of the work that we tried to do and continue to do, is to sort of raise that bar.

And I think when I, when I met you in in 2018, you know, part of my thinking was I knew about your research background and it was, it was an intuitive I don't want to say leap, because it would have been obvious to just about anybody looking looking forensics in the eye, as we were doing back then, that that there would be a space for evidence synthesis, to to really look at medical literature and to appraise the quality of literature and that to see how that could apply to specific cases in the personal injury setting. And that was sort of the, the inspiration that I had for contacting you, and I think I called you and I said hey, buddy, I think I think we got a space for you in this environment. I think there's a lot we can do together and that's been true and it's just taken off in the last five years.

Dr. Goldenberg Co-host
14:12
So it's totally taken off. It's been such a fun journey, I mean, yeah, it's been outstanding and that's a perfect segue, I think, into what what you call the credit approach, which I think is is fascinating. And you've you've put this, this white paper, together, and I want I think it was such a great way to start off the podcast, because I think it sets the foundation for what we're trying to accomplish here in this venture together over the years and what we aspire to. So, yeah, maybe let's, let's jump in and talk about that. So we've kind of talked about what the the issues are, but why don't you tell us a little bit about I guess we've talked about the inspiration for this approach. Why don't you tell us a little bit about what the, the credit approach is, and then we can sort of unpack it a little bit?

Dr. Batson Co-host
14:52
yeah, well, the credit approach is, is something that's that sort of I guess I dreamed up one day and and I want to I want to give you as much credit as even though I know I've taken lead on this paper because most of the credit approach comes out of our, our dialogue and our conversations, and so it's things that were sort of refined over a five-year period of looking at the deficits in expert testimony and trying to say, well, is there a way for us to articulate what the problems are but also to provide solutions, meaning what could be done better by expert witnesses on both sides, you know whether, whether defense retained expert or plaintiff retained expert or a treating doctor that then is called in to testify and has expert opinions, so a treater that becomes an expert in the case. So, regardless, how do we raise that bar? And so part of it became, you know how, first, first the critique and then the solution, so really looking the problems in the face and then and then articulating solutions. So where I know we haven't published this yet, but we are going to be publishing it in the near future, and so we've. We've outlined this in a in a paper called establishing expert witness credibility in personal injury litigation through the credit approach, which we're going to be presenting at a conference I believe in in March to debut that. But the basic idea is to to try to understand different sources of credibility and then to make sure that those those aspects of credibility are are all covered when someone is doing expert witness work.

And so CRED is an acronym that we developed, a CRED, and it stands for for causation methodology, research, ethics and due diligence. And then, within, within due diligence, we have another acronym that will will discuss, but it's the care approach, which is comprehensiveness, attention to detailed, requisite effort and education, referring to the need for continued education, staying contemporary in your field, which is often overlooked. So we basically articulated these principles in our paper and we've we've also looked at them with respect to the AMA ethical guidelines and the APA, american Psychological Association guidelines. And so you know, we start out with discussing causation methodology and the fact that there are formal methodologies that are in peer reviewed medical literature, particularly referring to Michael Freeman's work, or what we might call the the threefold method of causation, which we highlight as being an important structured approach to dealing with causation.

And of course, you know, for those that don't know, what causation is. It's really a separate discipline in forensics, which is you're trying to understand the relationship between an injury event, in this case like a collision or a fall, and the subsequent symptoms and conditions that a person is experiencing, and whether in fact, they're related to the event in question. And so a lot of the sparring that takes place in the forensic space relates to causation, and so, for example, you'll have a plaintiff expert that says you know, let's take, for example, you know challenges with reading after a collision that could be due to a condition called convergence insufficiency, which happens in 42% of sports concussions, for example, is it related or is it not related? And so the plaintiff expert comes in and says yes, it's absolutely related and therefore compensable as part of the damages, and then the defense experts has, no, it's not related. And most of the time, that's not done via a formal causation methodology or any type of rigorous application of medical literature.

Dr. Goldenberg Co-host
19:00
Yeah, and, and so part of the part of the goal that Michael Freeman highlighted as early as 2007 or 2008 was we really need to be have a structured approach yeah, one of the the stories that I love that he tells us like well, you know, if you see someone on the ground and there's a butthole in their head, it's pretty clear what caused the death, right, like maybe there's some exceptions, but it's pretty straightforward.

You probably don't need a formal analysis there. But for a lot of other things it gets really freaking complicated, right. So you can have, like, let's say, a collision, a car accident, and maybe three, four, five months later you start reporting, like you said, problems reading, or you didn't notice it until then, etc. Then the question becomes well, my goodness, is that linked or is it not? Is it coincidental? Could it have happened from something else, could it have been triggered, could it have been exacerbated, etc. Then what happens if you have a pre-existing history in that regard? So that's when things get a little bit complicated and we need these formalized approaches to causation analysis.

Dr. Batson Co-host
20:05
I think so Just for the audience. Dr Goldenberg, if you could quickly break down the three-fold method of Michael Freeman, I think it might be helpful. You alluded to something called temporal association, which is the second criteria. But if you're able, or I can review it if you prefer.

Dr. Goldenberg Co-host
20:23
But yeah, well, let's go through it. So the temporal association is obviously important, right, Like it needs to have happened after the event. That makes sense. Then are you referring to the general causation as well?

Dr. Batson Co-host
20:36
General causation, biological and epidemiologic plausibility, which is really your area. As someone who teaches epidemiology to your students, I think you're well-qualified to talk about that.

Dr. Goldenberg Co-host
20:49
Yeah, so that's basically the idea that just because okay, so we want to understand, did a cause be right? And so one is just to see if there's this temporal relationship, of course. But then the other thing is is there a plausible biologic mechanism of how that could happen right? Is that even theoretically possible? And we sometimes call this general causation, and there's different ways to sort of go about establishing general causation, meaning I'm not saying that this is what cause a cause be in this individual. I'm just saying it is possible for a to cause be, and we have some evidence of that.

And you can tell biologic stories, you can tell mechanistic stories, but also and I think maybe this is what you're alluding to is epidemiologically. At least, a lot of courts have found that you can use epidemiologic evidence to support this association. And this is an area that this has been my baby for a really long time, which is evidence synthesis, looking at the literature, doing systematic reviews and meta-analyses and saying what is the association between A and B real and, if so, how strong is that relationship? And we can sometimes use these method. Well, our hypothesis is, we can use these approaches to help establish that general causation.

Dr. Batson Co-host
22:08
Yeah, and so briefly, what is epidemiology for the audience? How would you define epidemiology so everybody's on the same page?

Dr. Goldenberg Co-host
22:17
Yeah, so okay, I don't.

Dr. Batson Co-host
22:20
In lay terms. In lay terms.

Dr. Goldenberg Co-host
22:22
Yeah, yeah, I don't. So you'll tell me if it's Latin or Greek. But epi, so above, and demo something which means people like demography and demographics, things like that. So the way I think about it is you're at a field that's looking above the individual person, you're looking, you're trying to describe populations of people and so the research that you see.

A lot of people are kind of familiar with this phrase with the COVID pandemic, right Cause we had epidemiologists and we were weighing in with that. But in general, people that do epidemiology evidence synthesis work, we're looking at large studies across either randomized populations or observational studies and we're trying to make sense of them and look at the quality of them and see how trustworthy they are. And so people that do that and look at research studies in that way sort of engage in epidemiology. And one thing that we've been interested in is this field and I don't wanna get too far off track, but this field of forensic epidemiology, which I think I don't know if the phrase was invented by Dr. Freeman, but he sort of is the first to kind of pioneer it. And once we found out about this I don't know about you, but I kind of got all googly eyed.

I was like there's a forensic epidemiology field we need in. I think that's what kind of sold me.

Dr. Batson Co-host
23:42
Right, right, yeah, absolutely. And so you know, use the word demi to refer to demographics or population data, and so one of the things you've highlighted and so you'll sometimes see, for example, in a deposition, someone will say, well, that's just population data, that doesn't really apply to this particular case, does it? And so it's really how to segue between population data and individual data, meaning to move from general to specific causation, and the threefold method we're discussing provides that bridge right. And so actually, the first criteria to establish causation is biological and or epidemiological plausibility, and you can have either or you don't have to have both. But the population data is simply to say has there been an association between concussion and abnormal eye movements? Convergence and sufficiency in the population data. And the answer is yes, how common is it? And we can use that for more sophisticated equations where we can estimate the probability of causation in a percentage wise way. But once that population plausibility is there, you're good to go, your general causation is done, and now you move into the other two factors, the second one being temporal association, meaning did it happen before or after, right, the particular injury event? And then how soon after? And that's important in temporal association, because some conditions are known to have a delayed onset or latency, and so that's often misunderstood.

There's the assumption, and anybody listening needs to understand you need to know your medical literature, you need to understand every condition or sequelae that can evolve after brain injury, because some of them have an expected delay. And so, for example, as you recall, dr Bloomberg, we produced two papers, one on psychosis following traumatic brain injury, and we found that the average time to onset is roughly what about two years. So there's a delay, but there's a downward trajectory that occurs during that time. So they may have other neuropsychiatric problems like depression or anxiety or cognitive issues, culminating in a psychosis. But what would often happen to someone that was naive of the epidemiological population data would be to say, well, if it happened two years later, it couldn't possibly be related to the injury event. And the same thing is true in my field, which is, as a neuroendocrinology researcher, growth hormone deficiency in particular, which is an adult onset version of it, that happens after brain injury due to changes in function in the pituitary gland, which sits at the base of the brain. It can often be delayed up to a year or more, and so that's well established in the population data. So if someone tests for it at six months and they're negative and then they test positive at 12 months, it can still be related to the injury event.

So when considering temporal association, you have to have the population data, what's known about the condition in large numbers of people. Otherwise you make the erroneous assumption that it must be proximate, right after the injury event, which is not the case for a number of conditions. And the other thing is recognition of the condition as well, and sometimes individuals that are injured or they have polytrauma, other orthopedic injuries, will not recognize particular symptoms at a certain time because it's muffled by things like chronic pain or they're on certain drugs for a period of time. And then later on, three, six months later, they recognize all along. Oh guess what? I had double vision, but I never reported it to a provider and I never really noticed it because I wasn't reading. And so then they go back to read and the words are jumping around on the page or they have to use their finger to trace them.

Dr. Goldenberg Co-host
27:47
Well, and that's common too, right, because a lot of people they'll be released from work by their physician for a while and so they won't be under cognitive stressors really, and so they may not even know that they have had these sort of deficits until they go back to work or something.

Dr. Batson Co-host
28:02
Yeah, and the ACRN American Congress of Rehabilitation Medicine noted this over three decades ago in their early definition of concussion, and so we've known about this for a long time that there can be either delayed onset or delayed recognition, and it's often overlooked.

Introducer
28:31
If you'd like to learn more about our unique approach to brain injury forensics, email us directly at info@braininjuryresearchsolutions.com, or learn more on our website, www.braininjuryresearchsolutions.com. There you can sign up for webinars, explore featured papers and learn about the team. Enjoy the podcast. Don't forget to rate us and review us on Apple Podcast to help spread the word.

Dr. Goldenberg Co-host
29:17
So this is like my latest obsession is this latency issue and so, as you know, like this is going to be the entire crux of my PhD over like the next six years of my life, but like I think the value of that latency is so important, right, because that's what complicates it, that's what makes it non obvious, that's when you have competing hypotheses, that's when you really need at least you know, my argument is, we need really nuanced data about this latency to be able to make these causation arguments. Well, especially in rare sequelae, right, because now you have competing hypotheses over time. It's very, very complicated.

Just super briefly, like, for example, for seizures, if you have a seizure within a week of a concussion, within a week of a TBI, we don't even consider that epilepsy, right? That's sort of just like oh, that's sort of this like one off thing from the acute onset, from the acute assault on the brain, but afterwards we'll consider this a post traumatic epilepsy. But when does that going to come? Is that going to come a year later, two years later, etc. So, anyway, it's all very, very fascinating stuff and we'll talk more about these, these different aspects, in detail, but I don't, I want to get back to where we're going. I want to make sure we chat about the credit approach.

Dr. Batson Co-host
30:29
I think we're still stuck on the sea, on the causation and now yeah yeah, we're still, we're still stuck, stuck on the sea a little bit, a little bit. But you know, you see, is for causation, and we've alluded to research, which is number two, that's the R in credit, and we've given an introduction to epidemiology and how you apply research in the in the setting of causation analysis, and so, really, the second one we've already really covered more or less.

Dr. Goldenberg Co-host
31:00
Well, but I want to underline it a bit because I think that's what's so. I think, yes, very few people do causation. Well, they do this sort of ad hoc, from the gut, heuristic causation analysis in their head. That's what's most common, right? You get a clinician up there who is opining, right, about their what they think is going on and maybe they have some good rationale, but they're certainly not doing original research or doing a lot of digging is what we see, and I think that is important to underline because in our minds you know the idea.


This is what drives me crazy, davis, right, like if you were at a medical conference and someone got up there and just started talking about their thoughts or opinions about something, I mean, they would be laughed out of the lecture hall, right? Like it's all about presenting research, presenting citations, presenting support, etc. And the idea that this is still done in law drives me bonkers. It's like 50 years behind the times in evidence based medicine. We used to do this in medicine all the time. We would just have this authority figure, like you said, authoritative medicine, but evidence based medicine has been this revolution, and so that's what I think you know, we're trying to bring about here. So I really want to make sure that we underline how important we think the research aspect of the credit approach is, because I really think that is a complete shift from the way it's been approached to date.

Dr. Batson Co-host
32:20
Well, you know, I think, what you're referring to and I know you and I do a lot of informal logic and we've actually brought on a PhD in philosophy recently to our research company to look at logical fallacies inside the inside of medical reports and so forth.

But you know, selective use of evidence is really one of the one of the fallacies is what we call in the research community, cherry picking, which is and it's and it's pretty much the status quo by doctors and a lot of these doctors that do forensic testimony.

They don't even have a research background, they're not involved, they're not publishing, they're not involved in in any type of academic work, they have no trained, real training in forensics, and they end up coming in and they just they, they thumb around the medical literature on a weeknight or weekend and then they they find a piece of medical literature that supports their viewpoint and they omit very, very important literature.

And so when we talk about sort of evidence, when we talk about research, we're talking about high quality evidence synthesis, and part of that is being comprehensive. And so when we're, when we're doing our work, our white papers or our white papers move to publication, we're using methods like systematic review, meta analysis and umbrella review, which ensures that we're comprehensive, but we're also rigorously looking at the quality of the medical literature and so we're not engaging in cherry picking or selective use of evidence. So I think when we talk about research, that's what really what we're talking about, and so maybe you can, maybe you can speak a little bit more about evidence based medicine and evidence synthesis and the type of methodologies that we're going to use to meet that second criteria of research in the credit approach, to make sure that we're as comprehensive as possible.

Dr. Goldenberg Co-host
34:08
I will briefly, and then I just got this brainstorm. We should have a separate episode for each letter in credit. I think that would be really, really cool to kind of focus on those different things.

Dr. Batson Co-host
34:17
Yeah, I think today's a good overview. I mean, I think we get people started on it and we'll come back to it and we'll deal with each one of the pillars, and that's a great, great idea.

Dr. Goldenberg Co-host
34:24
Yeah. So super briefly, super briefly though, to your point cherry picking is an issue that you know was in medicine for very, very, very long time, both consciously and subconsciously, I think too right. And one of the main weapons that evidence based medicine had to bring good medicine to the fore was the systematic review approaches. And the basic idea of that is just to be extraordinarily comprehensive and systematic in your search so that you can't cherry pick. And essentially what you're doing is you're casting this extremely wide net, going through thousands, if not tens of thousands, of different citations. You know, our search strategy for the seizure papers, for example, is like over 20,000 citations over five different databases.


Like this is a very this is not a weekend thumbing. Like you're saying, this is a very, very comprehensive search and through that huge hay pile we're trying to find the needles in the rough right. Like we're trying to find those needles in the haystack and say, okay, these are the studies that are relevant to our question, all of them, not just the ones that meet our preconceived notions and then we're going to summarize them, either qualitatively or quantitatively, such as in a meta analysis, when we present our findings. So that's sort of the basic idea and we'll talk about the nuances of that, I think, in future episodes. But let's, should we go to the E.

Dr. Batson Co-host
35:44
I think we can go to the E, which is which is the third pillar, which is ethics. And you know what we do in our paper with this is we refer there's not a whole lot within other fields, apart from psychiatry and psychology, in terms of formal forensic training and fellowships and that type of thing, most other medical specialties. In fact I don't know of any other medical specialties that have formal forensic training. You don't see it.

Dr. Goldenberg Co-host
36:12
I think that's part of the problem.

Dr. Batson Co-host
36:14
Yeah, and especially in brain injury medicine. You don't see it in neurology and you've got a lot of neurologists that come up and place themselves out as experts and they really don't have the requisite training, in my opinion, to even be testifying. There's so many cardinal violations, ethical violations as well as causation theory violations and just an overall lack of rigor and laxative as a whole approach. So you know, you don't, you don't see that in any other disciplines. So the AMA excuse me, the APA, american Psychological Association because psychologists, especially neuropsychologists, are involved in forensic work there's actually a set of guidelines from the American Psychological Association and there's also AMA or American Medical Association, code of Ethics, medical Guidelines 9.7.1 for medical testimony, whether it's a treating doctor, whether it's a retained expert that's testifying in a particular case.

Those guidelines are there to make reference to and to ensure that you know the various experts are actually abiding by and following the guidelines. And so we're not going to be able to go through all those guidelines, but the bottom line is that would be a separate talk we can do, where we review those guidelines and talk about some of the pitfalls that we see in the forensic arena when experts are not living up to the demands of those guidelines. So I think that that's the bottom line.

Dr. Goldenberg Co-host
37:42
Yeah, I think it's very important and, to your point, you know, there are very few specialties that even have these established and one of the to your, to your extreme credit. I think you were like we need a, we need an ethicist on board. And so we're, we're talking to philosophers of ethics to kind of say, okay, look, we need to understand how to do this and how to do this properly. And I think part of it is you know, it's this weird. I want to get your take on this.

You know, I think being a forensic expert is kind of this weird middle ground where you're retained by a party in an adversarial relationship, like on purpose, like that's the way the system is set up, but yet you're still quasi-scientific and you're supposed to be viewed as impartial and the experts are supposed to be impartial, yet there's this subconscious thing of, well, we want them to like us and we want to please the folks we work with, and then I think, in really ethical violations, you have people that just do the wrong thing for the wrong reasons.

But it's just an issue that's really, really important. I love that we're trying to dive into this a little bit more and understand what are the ethics involved? How do you set guardrails so that you're working on such a high level of ethical rigor that you're giving the court what it needs to make decisions without undue influence, consciously or otherwise? I love it. I think you're right. There are some already good starting points with the AMA and the APA. I hope that over the years we will just expand upon that even further, especially with the inclusion of ethicists on our team, etc.

Dr. Batson  Co-host
39:23
I think there's a lot in those guidelines. I think the first premise is to say there's no such thing as 100 percent freedom from bias or impartiality. What have you done as an expert to mitigate that? Part of it is transparency. Part of it is putting things out there upfront, looking at guidelines, creating checklists where you go through and you try to minimize bias, then getting to a sufficient point where you can say, okay, we've been transparent, we've mitigated bias sufficiently that it's not going to undermine the reliability or the credibility of the opinions. So there's a threshold at which the opinions are no longer credible. When one is failed to do that, it's being able to really analyze and understand at what point there's a sufficient amount of bias to really undermine credibility. What we refer to here is is it going to be helpful to the jury or to the judge, the trier of fact, or is it going to be misleading? So we need to understand really where's the threshold at which bias or partiality is going to be actually mislead, the trier of fact, and that's what we're trying to determine. That's why those guidelines are published. Yet I will tell you, dr Goldenberg, in all of my work with many, many counselors, attorneys very few, if any, apply these guidelines when they're cross-examining experts or under direct examination. I keep them in my reports and so forth and highly recommend that that's done.

But experts aren't being held accountable.

Until the experts are held accountable to something like the credit approach, you're just going to see the status quo continue, to the detriment of individuals with legitimate personal injury claims. Now, does that mean there's not individuals that are exaggerating or malingering? Of course, and you've got to identify such individuals to make sure there's an undue burden on paying parties and so forth. But for individuals that have legitimate claims that are being undermined because of ethical violations, it just shouldn't, it's just wrong.

When you think about the selective use of evidence, it's rather shocking that you see medical doctors or other well-trained healthcare providers that are required to follow evidence-based medicine. They very well understand that there's no doctor practicing alive that doesn't understand what a systematic review is or a meta-analysis and that doesn't understand the hierarchy of evidence. Yet when they go to their forensic work, because they have a diplomatic immunity, they feel like it's okay for me to grab an article from 1993 that supports my position and ignore the other 15 articles that were published since then that refute my position. And that's just highly unethical and it needs to be called out for what it is.

Dr. Goldenberg Co-host
42:28
That's such a good point is that. You're right. Obviously not everybody, but in our experience a lot of people. They have their evidence-based hat on during the day and then it's like they leave the clinic and they leave their white coat and they leave their evidence-based hat as well. You're right, it doesn't compute To your point as well. There are all sorts of built-in guardrails etc. For conflicts of interest in research that we think can easily be applied Again, and we'll talk more about this in the future. But just keep an eye on the clock here. How about we finish off the cred with the D? Let's tell us a little bit about the D and then we'll call it a day.

Dr. Batson Co-host
43:07
I'll come straight to the D, but I want to make one last remark about the Hippocratic Oath that a physician or doctor takes at the end of their training. That's an oath that's part of one's being, meaning that oath extends beyond their day job, from nine to five or whatever hours they work. These types of violations are, in my opinion and I've argued this a violation of the Hippocratic Oath to first do no harm. You can't just wear the Hippocratic Oath to the office and then take it off like a necktie when you're doing your forensic work and then suddenly damage the rest of a person's life because they don't get the necessary compensation in the case of a legitimate injury, because you decided to be irresponsible and not follow high standards in research and evidence-based medicine and so forth. I want to highlight that before moving on to the final pillar of the credit approach, which is due diligence, and that really is part of what we. A theme that's been running throughout our entire discussion today is due diligence, and we're not talking here about. We're talking about due diligence in the classical sense, not legal, financial or commercial per se, which have their own definitions, but in our paper we define due diligence by four criteria that we call the CARE criteria, so C-A-R-E and that's comprehensiveness, attention to detail, requisite effort and education, and I think we probably want to save this for a broader discussion another time when we go over that particular pillar. But some of those are quite self-explanatory.

Education, I think I would highlight amongst these here, referring to continued education, which is you know, your education. The fact that you went to medical school and did you know a neurology fellowship 30 years ago and your board certified and you have that credential, doesn't mean that you have contemporary education adequate to credibly testify now in 2023. And so the continued education is essential and in fact it's actually reflected, interestingly enough, in the AMA guidelines, where testimony is really required to be up to date. And so the guidelines read that you know one should testify only in areas where you have appropriate training and recent substantive experience and knowledge. And so recency is used in the AMA guidelines to let the expert know you know, and if you're not up to date and you're not staying up on the medical literature and going to CMEs and all of that for continued ed, you might not want to come into this arena because you're just gonna confuse people if you're not up to date. So I think education or continued education, contemporary education, is critical.

Dr. Goldenberg Co-host
46:08
So I would highlight that one Don't know if there's anything else you want to bring up today, dr Goldenberg, in that, within the area of due diligence, yeah, just a corollary, which is that you know, if you're a brilliant genius neurosurgeon, I don't want anyone else doing brain surgery on me, right, like that's your bag.

And even if you've taken all the continuation of classes and you know the research like the back of your hand, that's awesome. But I really posit that. You know, being in the forensics arena is a separate subspecialty and it's not just about the education, about being a brilliant neurosurgeon and the evidence behind it, but also what does it look like to establish causation in a legal sense, right? That's very different than, you know, making a presumptive diagnosis or thinking about a patient in the eight minute visit, right Like it's just a different skill set and I think it's time that that shifts. And so you know, I'm sure I assume we agree on this one but that part of that care approach, part of that continuing education, I think needs to be around. You know, the forensic space too, 100%, I mean.

Dr. Batson Co-host
47:13
I think one of the funny things that I've seen is when we have, you know we'll have a mild traumatic brain injury cases which are concussions and you know we're talking about. We'll talk about the difference between complicated and uncomplicated mild traumatic brain injury at a later date, but here we're talking about simple concussions which have no structural abnormalities on day of injury or an imaging, meaning a clean bill of health from a structural standpoint, at least gross, anatomical. I mean we know now that there can be micro anatomical change, but nothing that a neurosurgeon would intervene on or see. And yet they bring a neurosurgeon in to testify on one of these simple concussion cases and the only reason I can see that that's suitable is because they've got a big credential and it's the wow effect of you know it's like bringing in a nuclear physicist or something and the culture thinks, oh, this heroic medicine doctor and we need them absolutely.

And I have friends who are neurosurgeons and so forth must know more than someone else who is, you know, on the ground dealing with chronic concussion care. And it's the absolute opposite, which is, I mean, that neurosurgeon never deals with neuro rehab, with chronic care, doesn't hear the story of patients, doesn't assess them, doesn't really know the medical literature as well as they should on chronic sequelae after concussion, and so they're the least appropriate to be testifying in that environment. Yet they brought them in for what we call credential appeal and in my opinion and I've expressed this it's highly, highly unethical. So it's a mismatch between what they're doing clinically and what their knowledge base is and what's actually required and, of course, in most cases have no formal forensic training or anything to do with understanding how to apply causation theory or epidemiology to answer answer legal questions. So that's sort of an example, I think, of the importance of continued education in forensics specifically that you highlighted as well.

Dr. Goldenberg Co-host
49:16
Outstanding. I think this is a great introduction to what we're trying to do at large, but also specifically, with this podcast as well. And so, dear listener, we'll be going through these concepts in more detail, we'll be interviewing experts in all sorts of area around this these concepts as well, moving forward and, of course, if you have any questions, please reach out to us with your specific questions and we can go from there. Info at brain injury research solutionscom that's info at brain injury research solutionscom, and you can post a specific question and we can address it on the podcast. And, of course, if you want to learn more, check out our website at www.braininjuryresearchsolutions.com. Dr Batson, should we leave it there for today?

Dr. Batson Co-host
50:01
Let's leave it there. It was a pleasure seeing you today, dr Goldenberg, and I hope this has been helpful for all the listeners.

 Dr. Goldenberg Co-host
50:10
All right, Take care everyone. See you next time.

Dr. Batson Co-host
50:10
Take care.
 
Introducer
50:16 
Thank you for listening to the Brain Injury Forensics podcast with Dr.'s Batson and Goldenberg, brought to you by Brain Injury Research Solutions. If you'd like to learn more about our unique approach to brain injury forensics, email us directly at info@braininjuryresearchsolutions.com, or learn more on our website, www.braininjuryresearchsolutions.com. There you can sign up for webinars, explore featured papers and learn about the team. Enjoy the podcast. Don't forget to rate us and review us on Apple Podcast to help spread the word.