Table of Contents

Speech-Language Pathologists as Expert Witnesses

• Preface xi12
• Intended Readers xv16
• CHAPTER 01. xviii19
• • SLPs as Expert Witnesses in Litigation 120
  • • Brief History of Expert Witnesses: How Did We Get Here? 221
    • • What Are Expert Witnesses? 221
      • Rules of Evidence 322
      • • Rule 26. Duty to Disclose and Provisions Governing Discovery 322
        • Rule 702. Testimony by Expert Witnesses 423
        • Rule 27. Depositions to Perpetuate Testimony 524
        • Rule 706. Court-Appointed Expert Witnesses 625
    • What Do Expert Witnesses Do? 625
    • • How Does the Process Begin? 625
      • What Happens After an SLP Agrees to Serve as an Expert Witness? 1029
      • What Is Reasonable Compensation for Serving as an Expert Witness? 1130
      • • Is Preliminary Communication Billable? 1332
        • What Does a Sample Fees Schedule Look Like? 1433
    • Who Can Serve as an Expert Witness? 1433
    • • Why SLPs? 1534
      • What Makes an SLP an Expert? 1736
      • • SLPs and the Certificate of Clinical Competence 1736
        • SLPs and Licensure 2039
        • SLPs and the ASHA Code of Ethics 2039
        • SLPs and Interprofessional Practice 2140
        • SLPs and Cultural-Linguistic Competence 2241
    • Why Are Some SLPs Unwilling to Serve as Expert Witnesses? 2948
    • • When Is It Appropriate for SLPs to Serve as Expert Witnesses? 3049
      • What, if Anything, Should SLPs Communicate With Their Employers? 3453
      • Should SLPs Serving as Expert Witnesses Communicate With Their Liability Insurance Agents About Their Coverage? 3554
    • Case-Based Learning and One More Case 3655
    • Reflective Questions 4059
• CHAPTER 02. 4665
• • SLPs as Expert and Fact Witnesses in Special Education and Disability Disputes 4766
  • • What Is Due Process? 4867
    • A Brief History of Special Education Laws and Cases: How Did We Get Here? 4968
    • • Brown versus Board of Education (1954) 4968
      • The Elementary and Secondary Education Act (ESEA) of 1965 5170
      • • Early Special Education Court Cases 5170
      • The Rehabilitation Act of 1973 5170
      • The Family Education Rights and Privacy Act of 1974 5271
      • • What Precautions Should SLPs Serving as Expert Witnesses Take in Handling Legally Protected Documents? 5372
      • The Education of All Handicapped Children (1975) 5473
      • The Americans With Disabilities Act (ADA, 1990) 5574
    • How Has Special Education Litigation Affected Special Education Due Process? 5675
    • • The Case of Amy Rowley (1982) 5675
      • The Case of Endrew F (2016) 5776
      • Fry versus Napoleon Community Schools (2017) 5877
      • How Do These Cases Impact SLPs Serving as Expert Witnesses? 5877
      • • Where Is the Division Between Expert and Fact Witnesses? 6180
        • What Is the Relevance of Custody Cases to Special Education Disputes? 6180
    • What Are IDEA’s Procedural Safeguards? 6382
    • • IDEA Procedural Safeguard: The Written Complaint 6887
      • • What’s the Difference Between a Consultant and an Expert Witness? 6988
        • Should SLPs Recommend Other SLPs to Serve as Expert Witnesses? 7089
      • IDEA Procedural Safeguard: Due Process Complaints/Hearings 7190
      • • What Is Expected of the Expert Witness During DP Complaints/Hearings? 7291
      • IDEA Procedural Safeguard: Mediation 7493
      • Section 504 Procedural Safeguards: Dispute Resolution 7695
      • How Do States Differ in Their Regulation of Special Education and Dispute Resolution Processes? 7695
      • Do State Variations Include Compensation of Expert Witnesses? 7796
    • Reflective Questions 7998
• CHAPTER 03. 84103
• • SLPs as Expert and Fact Witnesses in Medical Disputes 85104
  • • A Brief History of Health Care in the United States: How Did We Get Here? 86105
    • • The Tuskegee Syphilis Study and the Belmont Report 86105
    • Contemporary Sources of Medical Litigation 87106
    • • SLPs and Disability Claims 92111
      • • How and Why Are SLPs Involved in Disability Claims? 95114
        • Who Determines Eligibility for Disability? 96115
      • The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Subsequent Rules 97116
      • • HIPAA Nondiscrimination Rule (2016) 99118
      • SLPs and Health Literacy 101120
      • Competence to Stand Trial and Decision-Making Capacity 102121
      • • What Is Communication Competence? 104123
        • What Is Decision-Making Capacity? 105124
        • Why Should SLPs Be Involved in Assessing Communication Competence and Decision-Making Capacity? 107126
      • Can Litigation Result From Poor or Misunderstood Communication? 110129
      • • What Are SLP Roles in Cases of Child Abuse and Neglect? 113132
        • What About Elder Abuse and Neglect? 114133
      • SLPs as Defendants (and Plaintiffs) in Health Care Disputes 116135
      • • How Should SLPs Involved in Dysphagia and Feeding Disputes Handle Their Responsibilities to Avoid or Mitigate Malpractice Claims? 119138
      • SLP Roles and Responsibilities With Patients at End-of-Life 122141
      • • What Are Advance Directives, Living Wills, and Powers of Attorney? 123142
    • SLP Roles When Patients Engaged in Litigation Cannot Communicate for Themselves 124143
    • Reflective Questions 127146
• CHAPTER 04. 136155
• • Communicating as an Expert Witness 137156
  • • For Whom and as Whom Is the Witness Communicating? 138157
    • • Communicating on Behalf of an Individual With a Communication Difference or Disability 138157
      • Communicating on Behalf of the Speech-Language Pathology Profession 140159
      • • Is Nonverbal Communication a Factor When Testifying? 142161
      • Communicating on One’s Own Behalf as a Witness 144163
      • • How Does an SLP Assure Qualifications as an Expert Witness? 146165
      • Communicating the Opinion 151170
    • Interprofessional Communication 153172
    • • Back to School 156175
    • Written Communication 158177
    • Reflective Questions 162181
• CHAPTER 05. 164183
• • Expert and Fact Witnesses’ Ethical Considerations and Risk Management 165184
  • • What Are the Professional and Ethical Duties of an SLP Serving as an Expert or Fact Witness? 166185
    • • Professional Standards 166185
      • • Can Retired SLPs Serve as Expert Witnesses? 167186
      • Ethical Standards 167186
      • • How Do We Avoid Conflicts of Interest in Cases of Conflict? 168187
      • Ethical Requirements 170189
      • • Duty 170189
        • Justice 171190
        • Fidelity 171190
        • Beneficence 172191
      • Mandated Reporting 174193
      • • What Is the Difference Between Mandated Reporting, Ethical Reporting, and Whistleblowing? 175194
        • What Ethical Responsibilities Are Associated With Reporting? 176195
    • What Should SLPs Do to Minimize Risks Associated With Conflicts? 178197
    • • Maintain High Ethical Standards 179198
      • Maintain Currency of Knowledge 180199
      • Maintain Documentation 180199
      • Avoid Conflicts of Interest: Relationships With Clients and Families 182201
    • Where Does Research on Expert Witnesses/Witnessing Belong in Speech-Language Pathology? 184203
    • Reflective Questions 186205
• Appendix A: Sample Consulting Agreement 191210
• Appendix B: Sample Fees Schedule 195214
• Appendix C: Sample Invoice 197216
• Index 201220
• About the Authors 213232