In March, a superior court judge in New Hampshire barred the state’s chief medical examiner from testifying that the death of an 8-month-old boy was a homicide.
As reported by The Telegraph in Nashua, Izik Davis died when the narcotic fentanyl was absorbed through his skin from an adhesive patch prescribed to his mother for back pain.
Kristine Davis said the patch accidentally transferred itself from her body to her son’s. Prosecutors said she put the patch on Izik deliberately.
Dr. Thomas Andrew – the chief medical examiner – certified Izik’s death a homicide. He further certified that the fatal injury occurred when a fentanyl patch was intentionally placed on Izik’s body.
The judge said Dr. Andrew’s opinions “exceed the scope of his expertise” because his knowledge of the adhesive properties of fentanyl patches is no better than anybody else’s. If allowed, the doctor’s “speculative and hypothetical” opinion would carry the weight of expert testimony.
“The jury will be as competent as Dr. Andrew to determine whether Izik’s death was the result of an accident or of the defendant’s purposeful placement of the patch,” the judge said.
One of my colleagues, a medical examiner who holds doctorates in both jurisprudence and medicine, thinks that “since there was no claim or attempt to demonstrate (Dr. Andrew’s) expertise regarding the adhesive properties of a fentanyl patch, the opinion was probably properly excluded.”
Dr. Andrew and other colleagues disagree. I have mixed feelings about the judge’s ruling in this case and about the reasoning behind it.
I can remember when a medical examiner’s opinions were almost never questioned. Battles between prosecution and defense experts were almost unknown. Courts and the public automatically assumed we knew what we were talking about. That’s not true anymore. People have become aware of too many examples of disputed testimony by medical experts, and flawed and unproven science conducted by forensic laboratories.
I think a big problem is that medical examiners are neither fish nor fowl – neither purely physicians nor purely scientists.
Trained as physicians, we think and reason like physicians. Scans and test results and their interpretations are a very important part of our practice, but so are histories, circumstances, experience and common sense.
Another problem is that we can’t and don’t conduct random, double-blinded experiments to study most of the questions faced by a medical examiner. Nobody is going to affix fentanyl patches to a bunch of parents to test whether any of them accidentally transfer to their kids during normal activities.
I know what I think the likelihood is, but there’s nothing truly “scientific” about my conclusion. I don’t question that a juror’s opinion on this subject is just as valid as mine.
But should I never testify to an “unscientific” opinion? When I decide a question based on factors beyond experimental science – which would be most of the time – should I check the undetermined box on the death certificate?
Science alone can’t answer some of the questions. That doesn’t mean medical examiners can’t arrive at valid answers.
email@example.com Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003-12. She now lives in Florida and Maryland.