Tuesday, April 16, 2013

Transparency and Ethics

At my last job, I was asked to fill out a 22 page financial disclosure form. I have filled them out before. It is an onerous task that takes several hours and involves quite a bit of paperwork, and it was due before April 15, making it more likely that any errors would be the result of one's paperwork being with a tax accountant rather than intentional perjury. Yes, it is signed under penalty of perjury. In doing this annual exercise, which in most places is relegated to people with actual financial decision making capacity (elected officials and top City managers) but now has been expanded recently to include lowly City employees such as myself I wondered: is this really adding to transparency and improving ethics or is it just a pointless exercise to create the appearance of ethics?

I favor the latter. First of all, the form doesn't actually list financial amounts but allows you to check a box with a ballpark, and it would be easy to obscure actual large contributions to an elected official by spreading them out over multiple entities or better yet, doing it the legal and completely undisclosable way: contributing to their election campaign via groups now proliferating since the Supreme Court Citizen's United Decision. Contributions to groups that keep an elected official in power and allow him or her to continue collecting a large salary and control large government contracts are legal and not included on Form 700. Interesting.

But what about the lowly forensic pathologist? If a forensic pathologist actually had a financial interest in the determination of someone's death, for example if their rich uncle died and they were inclined to sign the death certificate as, say an accident, in order to collect on a large accidental death policy. Technically, a large inheritance would be disclosable on Form 700 but nowhere do you have to identify that you signed the death certificate. It would require some digging on the part of the press or public and it would most definitely be picked up by the insurance company. Insurance companies have their own review process for releasing any awards. A pathologist inheriting on a policy where he signed the death certificate would most run into trouble collecting.

Finally, what are the real ethical decisions that challenge forensic pathologists on a daily basis? Are these financial decisions or something much more complex, that cannot be uncovered by any financial disclosure form? Things like: do I tell the grieving family that their infant died from being smothered on the blanket they got as a gift from their great aunt or do I just tell them it's SIDS? Do I tell the DA what the public defender told me when they met with me about their trial strategy or do I keep that to myself? What should I do if the DA demands me I tell her? Or threatens me? What do I do if I am told by my boss or his boss not to testify in a politically-charged, high-profile case?

These are not theoretical questions. These are actual ethical questions that have confronted forensic pathologists I know. So while commissions and government bodies have us filling out financial paperwork we forensic pathologists actually got together and wrote on this subject. You can find it in the NAME Position Paper on Medical Examiner Independence and it is available on line, published in the peer-reviewed journal, Academic Forensic Pathology. A companion paper, published in the same journal, documents several high-profile cases that were a challenge to pathologists' ethics and that prompted the response. In surveying members of the National Association of Medical Examiners, our survey uncovered that nearly a quarter (24%) of those surveyed reported that they are considered prosecution witnesses within their jurisdiction with the expectation that they not cooperate with defense counsel and 42% of the respondents reported that they were expected to divulge details of their conversations with the defense with the prosecution. Approximately a quarter of pathologists (22%) had pressure applied by elected officials or appointees to change cause and manner of death and 11% experienced pressure to change their testimony or withdraw as an expert in a specific case. While pathologists working in Coroner systems were more likely to have the cause of death on the death certificate changed from what was on the autopsy report (43% versus 14% for Medical Examiners), Medical Examiners were more likely to restrict forensic pathologists from private consultation than Coroners (64% versus 0%). The position paper outlines real ways that government can improve on this situation, for example by recommending that forensic pathologists be independent of law enforcement and be available for consultation for both prosecuting and defense attorneys. It also recommends that given the scarcity of forensic pathologists in the United States, they should be free to review, offer opinions on and testify on cases from outside their own jurisdiction.

This paper goes part way in addressing ethical concerns, but it doesn't address issues of respect and professional regard. Most recently a colleague of mine from Oklahoma has been forced to come back under Federal subpoena to testify in a case he did many years ago and the Federal attorneys will not compensate him for his time or work as an expert, insisting that since he did the autopsy years ago under contract he must take vacation time from his current job and miss work in order to do his "civic duty" to testify. If forensic pathologists are not compensated for their work and are treated by the courts in such a way, it is no wonder we are having problems attracting professionals to our ranks.

If those of us that work within the justice system as experts are stymied by breaches of ethics and frustrated by lack of regard and compensation, then what does it say about the quality of the justice system in our country? Comments welcome below.