Private consultation in forensic pathology part 1. Why young pathologists should do it.

One of the more bizarre features of being a forensic pathologist is that we have traditionally been civil servants.  This has had a couple of important ramifications.  We traditionally make less money than most other specialties (though this is changing) and we tend to have chronic infrastructure and other issues.  On the other hand, it turns out that there’s a huge demand for *private* forensic pathology consultation, and that’s an amazingly underappreciated part of our work.

The economics of this are fascinating, and are why retired forensic pathologists do so well, but I’ll go into the financial stuff later.  In this first segment, I won’t delve deeply into the finances, but instead focus on why younger forensic pathologists might consider it,

1) The Good stuff:

1.1 Doing private consultations provides an important public service.

In this section, I’m concentrating primarily on criminal defense work.   As a private consultant, only a very, very small portion of what you do will be criminal prosecution, because the state will use their own Medical Examiner.   In non-criminal cases (torts), the balance between plaintiff and defense opportunities is more balanced.

There are two important aspects to this public service stuff.  The first is availability and the second is cost.

There are simply not enough forensic pathologists available to help defendants.

There is a huge problem in the US.  People being prosecuted simply don’t have access to expert help at any cost.  In my state of Tennessee, I can count the number of Tennessee forensic pathologists who do private cases on my fingers  And there are hundreds of cases that would benefit from having expert help.

Most of that help doesn’t mean going to trial or writing lengthy dissertations on the fine points of some pathologic mechanisms. Many lawyers can’t pronounce the words in an autopsy report, much less understand them,  and need someone just to tell them what the report says.  It means helping a lawyer tell his or her clearly guilty client  that the “Hail Mary” stuff he sees on TV just won’t fly in the real world.  It means telling a family that just because the clinician treating grandma is an asshole, that doesn’t mean she is incompetent.  Many such cases take less that a couple of hours of billable time, and consist of me saying “Yeah, I’m sorry.  Your client is screwed.”  Another good portion is me saying “Look it is what it is,” but also helping counsel look for mitigating features that will reduce a sentence.  I get called by counsel who are mostly concerned with simply making sure they did due diligence (and avoiding claims of ineffective counsel).

But… in a small percentage of cases, there’s a clear misapplication of the system. I’ve been surprised over the years how sensitive District Attorneys are to appearances and politics. Sometimes they will prosecute someone even when they recognize that they are likely to lose, mostly because of the optics of the case.  I suspect that’s what’s going on, for instance, in the prosecution of Daniel Penny in New York.  Mr. Penny will almost certainly be acquitted, but the politics of New York demand his prosecution.

Here’s the thing, though.  In these prosecutions, the DA  or Justice Department, or whoever, have essentially unlimited resources.  If the defendant can’t even get someone who can read the autopsy report to him, he’s screwed. Glaring holes in the prosecution theory of the case will go unnoticed.  I have had cases where the prosecution was stalled or a very mild plea bargain was made simply as a face-saving maneuver just because I got involved and wrote a report.  It’s not that I’m so high powered, it’s that the prosecution was basically counting on no defense expert at all.  I have actually been told by one client that the DA was bringing charges because of the political pressure of a powerful family.  The DA wanted an expert to write a report poking holes in the case as much as did the defense.  And, sure enough, when I wrote my report, the charges were dropped.

Unfortunately, with almost all full-time forensic pathologists being employed by the state (in the general sense of the term), there are very, very few people who have the time or inclination to do this.

Defendants often can’t afford justice.

One of the distressing things about the justice system in the United States, and I suppose likely everywhere, is that the people with the big bucks get all the advantages.  Most defendants in the criminal cases we see are not folk who won the lottery in terms of either financial resources or personal abilities.  Considering the importance of having experts involved, what are these financially-strapped people going to do?  Most states have some system for paying for experts for indigent defense, but most do not pay market rates.

But here’s the thing.  If you are doing these cases on the side when you are young, or if you are older and are simply mixing a few of these cases in your caseload, then you can do good for these people, and play an important role in keeping the justice system from getting even more lopsided than it is.  You are serving an important public need.  Doing a fair number of private cases means you can do these indigent cases at lower rates and not hurt about it.

You’ll feel good about it.  I recently took on a rather straightforward case that didn’t take a lot of hours in a case where a defendant was being hurt by having the prosecution expert stating rules of thumb as absolutes.  All I did was point out that these rules of thumb are exactly that, and that lots of exceptions exist, and provide a couple of references.  The result was “This is incredible work, Dr. Oliver. I’m still going through it. [My co-counsel] and I are considering next steps. Thank you a million times for this, already!”   This case will likely not go to trial (though I don’t know, of course).  As Medical Examiners, it makes us feel good when our work is used to take bad folk off the street.  I also makes us feel good when it’s used to help the innocent.

Unfortunately, not only are most full-time Medical Examiners overworked, but many jurisdictions will not allow their people to take private cases. That limitation means that even fewer people are available to do this important work.  If you can, you should. And doing a mixed case load will make that financially viable.

With torts, sometimes it’s the plaintiffs who need the help.

I’ll write a quick note about torts here.  As I mentioned above, most of your private criminal work will be for the defense.  With torts, you will get a fair number of plaintiffs as well as defense opportunities.  The same principles apply with respect to justice, though.  For some reason, in the past few years, I’ve been engaged to do a fair number of deaths in custody.   In some cases I’ve been engaged by plaintiffs.  In some by defense.  In both, it is clear that the issues of justice are important.   I have seen prisoners who have been beaten to death and tortured.  I have also seen cases where police officers have been persecuted even though they did the best they could to save the life of a subject — yet had their lives ruined.  I’ve also done a fair number of wrongful nursing home deaths, where I’ve seen horrible maltreatment and I’ve also seen nurses and institutions who did their absolute best for very, very sick people and have had horrible accusations wrongly made against them.   With criminal defense, you get to see the side of the story you don’t normally see as a Medical Examiner.  With torts, you get to see both sides of some very fascinating stories as well.   When you do these plaintiff cases in torts, it’s sometimes the plaintiff rather than the defendant who is the David fighting the Goliath.

1.2 Doing private consults gives you freedom to walk away.

Many of us have worked at places that were not optimal places to be at.  But for us as Medical Examiners, there are not as many options as we may like.  There’s a weird paradox in finding work as a Medical Examiner.  It’s absolutely true that there’s a huge shortage of Medical Examiners, and that we can almost always find work.  But it’s also true that at any given time, there’s only a few places with viable openings.  So, if a ME decides to change jobs, there may only be four or five decent options, and those may not be in places that he or she wants to work at.  I remember thinking about changing jobs some years ago.  I considered it over a period of a few months.  Every couple of weeks I’d look at job advertisements.  Every time I looked, there were three or four places that met my salary requirements, but none were in places I wanted to live.  It took me awhile to land in a place that both paid fairly well *and* was in a location acceptable to my wife and me.

But what happens if you are in a place and you just can’t stand it?  Maybe you want to move, but this month or next month isn’t a month where an office has an opening where you want to live.  Doing private cases means that you can survive for awhile without having to land somewhere right away.

In fact, I know a couple of folk who have quit working at an ME office altogether.  Even though they are young, they are working “full time” doing a combination of locum tenens and private consultation and are doing fine.  That’s not the path I would choose as a young pathologist — there are good things about working in a “real” office — but it’s certainly financially viable.

The bottom line, though, is that it means you are not trapped.  In order to do this, however, you need to develop your work skills and your ability to attract  clients while you are still working.

1.3 Doing private consultations allows you  the luxury of doing self-education and being paid for it.

Over the past few years, people have complimented me on my command of the literature and my ability to find articles and studies addressing topics.  The reason that I can do this is largely because people pay me hundreds of dollars an hour to do it.  The attitude of private consultation clients about their cases and that of the government about their cases are directly in opposition.  Since you are a loss center for the state, the state does not want to pay you for anything other than the bare minimum when it comes to medical education.  I can just see a Chief go to their county commission and say “Hey, I want to fund each of my pathologists to have one day a week to do nothing but read interesting literature that hits their fancy.”  That won’t fly. Mostly the county commission will just complain about why it takes so long to get reports out and why can’t you flog your pathologists into do more cases for less money.

That’s in contrast to doing private cases where I have repeated this conversation a hundred times:

“So what do you think?”

“Well I’ve gone over the autopsy and medical records and I kinda thing this…  But, you know, I’m not really completely up on the literature on this.  I’d like to spend a few hours hitting Google Scholar and PubMed and making sure that I’m up to date…”

“Do what you need to do, doc.”

For almost every private case I do, now, I do a new literature search and read more and more relevant studies.  My average private practice report has 20-30 references, except in cut and dried cases.  It also means that I’ve become much better at *finding* pertinent literature, learning how to use search engines and libraries, etc.

Early on, when people asked me why I did private consults, this was the reason I gave.  Where else will people pay you a bunch of bucks per hour to read the medical literature?

1.4 It makes you better at your day work.

Most importantly, doing private cases can increase the quality of your work for the state and make it more bullet-proof.   As mentioned before, when acting as a Medical Examiner, we rarely, if ever, work for the defense and, surprisingly, we really don’t get severely challenged on the stand that often.  Sure, there will be occasions when the defense will hire an expert, but in 95% of the criminal cases I’ve worked on, there was just me on the stand.  The defense lawyer who can knowledgeably challenge my testimony is rare, particularly in rural jurisdictions.  As a forensic pathologist, you get up and say whatever you like, and nobody will really challenge you in a substantive way.  Sure, defense may go after you *personally* — attack your integrity, etc. — but that’s because they don’t know enough to attack you substantively.  We’ve all read the cases of forensic pathologists who step over a line on the stand and end up getting burned when a case is reversed.  You look at the testimony and go “How the hell could he have said that?”  The reason is that for 20 years, he never was really challenged in his jurisdiction, and he ended up thinking he knew more than he did.

However, when you start doing private consults and are working for the defense, you start looking at cases more critically in general, including your own.  After getting paid to find ways to poke holes in other people’s reports, the first thing I do when I sit down to write my own is to ask myself “If I were hired to attack my conclusion, what would I attack?”  Then, I can figure out what I need to put in my report to head that off ahead of time, or, earlier in the process, what extra test or record or study I might want to do to make sure I don’t get dinged.

Doing private consulation has radically changed my report writing.  A *lot* of forensic pathologists have this minimal approach to writing reports in that they will have essentially no discussion of their inferential process.  One of my colleagues stated something to the effect that “I write as little as I can.  If someone has a question about how I came to my conclusion, they can ask me.”

I have ended up with the exact opposite conclusion.  In complex cases I try to put my inferential chain down, discuss why I rejected competing diagnoses, and what contextual data I used and why.  Like all forensic pathologists, I am sometimes wrong.  But what I’ve found is that on review of those cases where folk disagree with me, everyone agrees that I am *reasonable,* even if they think I’m wrong.  What I’ve found after doing this for some decades is that people who oppose you *in good faith* tend to get testy when your conclusion seems to be capricious or overly influenced by bias, not because there’s disagreement.  When you write your summary to include what you considered important and why, folk are less likely to consider you either capricious or overly biased.

That doesn’t apply to a lot of agenda-driven folk, of course — as Dave Fowler could likely testify to after the George Floyd case.  In today’s world, the mere fact that I’m white and/or male can lead to surprising attacks on the stand (and in email).  I have been subjected to scathing personal attack based on my race and sex in the past few years, particularly in certain blue states.  There are a couple of states I just no longer accept cases from.  But, in general, this method of report writing has decreased attacks on the stand significantly over the past decade or two.

Of course, writing this kind of report means you have to be able to describe your inferential process coherently.  That can be a challenge. But writing reports for private consultation helps tremendously in that, because that’s the *purpose* of those reports.

2) The bad stuff

There are some downsides, though, and I’m not discounting them.

2.1 Life is short.  Families are important.

The most important problem is that there’s only so much time in the day, and life is short.   It’s one thing to do the rare case that doesn’t take much time.  It’s another to get involved in complex cases that require a lot of court time.

Last year, I had a case that required that I be at trial for almost three weeks out of state.  Had I been working full time, that would not have been practical.  I could have probably negotiated a shorter stay if I had to, but the fact is that getting involved in some of these cases is a significant commitment of time and effort. If you do private cases while working full time, you have to keep an eye on that.

For me, that’s not a big problem.  I’m retired, so I can adjust my schedule as I need to. I still do a bit of locum tenens, but again, I can adjust my duty days a bit if I have to.  But if I were working my normal 60-hour week that I worked when I was working full time, it would have not been doable.

2.1.1 You need to you young person stuff when you are young.

There’s a more important issue when you are young, though.  There are things that you can, and should, do when you are young that are not practical or possible when you are older.  If you like to travel and do things that require physical ability, you need to do them while you still can.  You want to hike through the Himalayas? Great.  But don’t t wait until you are 75 to do it.  I remember going to Portugal to a NATO ASI meeting when I was in graduate school. When I got back, one of the older pathologists told me “If you like doing that, do it now.  Because if you wait until you are old, you won’t have the energy or the desire like you do now.”  He was right.   My wife and I are considering a pilgrimage to follow the travels of Paul through Asia Minor.  A big consideration is whether or not we are physically able to do it.

You can’t work on a case and write that great novel you want to write.  You can’t be at trial and play that gig with your garage band.  Your work should be part of your life.  As a Christian, I consider it my ministry.  But it can’t be *all* your life — and it probably shouldn’t be *most* of it.

2.1.2 Your kids are only kids once. You can’t go back and fix it.

This is even more true for folk who have a family and kids.  You only experience the childhood of your kids once.  After that’ it’s over.  And if you miss it because you are working, you will regret it for the rest of your life.  For women, that seems to apply to having kids as well.  I don’t pretend to speak for women, but as an observer, a common complaint I’ve heard is that a lot of them wish they’d started their families earlier.  This thing of waiting until you are 35 to have your first child doesn’t seem to be the winner it’s advertised to be.

If you have a chance of going to watch your kid play Tee Ball or play “Tree number 2” in the school play, and you miss it to do private case work, you may regret it.  The Apostle Paul noted that you must love your spouse as your love yourself.  King David wrote that children are a gift from the Lord.  God says that we should work diligently and honestly, and take enjoyment from our toil and fruits of our work, but it’s not all there is.

The same thing is true of marriage.  You need to spend time and effort with your spouse.  You need to build a life together, not just as roomies. As Jesus said:

“Have you not read that he who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’? So they are no longer two but one flesh.”

When you disrespect your spouse, and failing to devote time and attention is disrespect, you are disrespecting yourself.  If your work is appropriately integrated into your life, then it all comes together, with each part strengthening the other.  As Solomon wrote:

Two are better than one, because they have a good reward for their toil. For if they fall, one will lift up his fellow. But woe to him who is alone when he falls and has not another to lift him up! Again, if two lie together, they keep warm, but how can one keep warm alone? And though a man might prevail against one who is alone, two will withstand him—a threefold cord is not quickly broken.

Solomon, in Ecclesiastes, also writes about the futility of focusing too much on work.  You should do it to the degree it is fulfilling, and enough to provide what you need,  but it shouldn’t be all there is:

 I became sad about all the work I had done.  People can work hard using all their wisdom and knowledge and skill. But they will die and other people will get the things they worked for. They did not do the work, but they will get everything. That makes me very sad. It is also not fair and is senseless.

What do people really have after all their work and struggling in this life?  Throughout their life, they have pain, frustrations, and hard work. Even at night, a person’s mind does not rest. This is also senseless.

There is no one who has tried to enjoy life more than I have. And this is what I learned: The best thing people can do is eat, drink, and enjoy the work they must do. I also saw that this comes from God. If people do good and please God, he will give them wisdom, knowledge, and joy. But those who sin will get only the work of gathering and carrying things. God takes from the bad person and gives to the good person. But all this work is useless. It is like trying to catch the wind.

(Ecclesiastes 2: 20-26, “Easy to Read” version)

There’s an old saying that “Nobody ever laid on their death bed and said ‘I wish I’d spent more time at work.’ ”   That’s certainly true for my life.  My biggest regrets are those times I didn’t spend with my family and friends because I chose to spend time working on some project or another.   Don’t be me.

That doesn’t mean that you can’t do private work.  Obviously I think folk should.  But don’t forget that we are people first.

2.2 Outside work is a signed resignation letter to your office.

The second big downside is that you are opening yourself up to attacks by doing this.  I always tell people who ask me that they should consider doing private practice while employed as a signed resignation letter on the desk of your boss.  Most places that allow private work have strict rules about the separation of private from public efforts.  This includes not being able to use state resources for private work.  Unfortunately, that kind of wall cannot be as perfect as the rule-makers pretend.  There will inevitably come a time when you need to take a phone call during business hours or use the copy machine for a couple of papers, or run out to get something notarized, or have a meeting with a client during business hours.  Most offices that allow private practice have some minimal level of mixture that they consider too trivial to worry about. Running off for fifteen minutes once or twice a month to get an affidavit notarized is no big deal. Using the copy machine for a couple of pages is OK. Whatever.  Every office is different.

I have worked at places that were pretty accepting, and places that were not.  You need to figure out what is and is not OK at any particular office.  And you can’t push it.  The fact is that most offices are overworked, and if your private practice work means that you are causing your compatriots there to suck up your slack, you will eventually pay a price for it.  On the other hand, if *most* of the folk at your office also do private work, people are often amenable to covering for each other.  Paul notes in his letter to the Galatians that we should carry each other’s burdens.  But we shouldn’t use that to exploit each other.

But here’s the thing.  This leniency is plastic. It changes over time, and with the whim of the administration. More important, if you end up in the public eye and somebody decides to take you down, then this is the way to do it.  If you look through the stories of Medical Examiners who have been forced to retire, a *lot* of them have been attacked for their private work.  If some local DA goes on a vendetta or some newspaper decides to go on the warpath or a new administrator decides she doesn’t like you any more, they will *find* something to accuse you of.  If that happens, you really don’t have a defense.  You will just have to move on.

The good news is that this is an old story, and it probably won’t affect your ability to get a new job.  We all know what’s going on here, and unless you really did engage in egregious misuse, you shouldn’t have a problem finding a job at a place you want to be.  Places where this would be a problem for hiring are not places you want to work at.  The bad news is that it means you will have to move. If you have kids in school and a spouse who is working, that can be disruptive.

For me, doing private consultation been a big plus, and has been a lifesaver in retirement.  But it’s a personal decision and what’s best for you may be different.  It was very important that I started while I was working full time.  In later posts, I’ll write a little about some practical aspects.