EXPERT MEDICAL TESTIMONY

Transcription

1 EXPERT MEDICAL TESTIMONY BERNHARD STEINBERG, M.D. Laboratories and the Institute of Medical Research, The Toledo Hospital, Toledo 6, Ohio Very few physicians escape the witness chair some time during their careers. Some sit there quite often and usually wish they were elsewhere. By the kind of performance most of them give, it would be better for all concerned if they were anywhere but in the courtroom. There are 3 reasons for this ineptitude of the doctor as an expert witness. In most medical schools the crowded curriculum does not allow for training in this field, There are no satisfactory organized postgraduate courses. Thirdly, very few doctors consider the subject sufficiently important to devote any time for study. Yet, the expert medical witness is a part of our social-economic scene. The occupancy of that uncomfortable chair in the courtroom is an obligation of the medical profession to the patient, to industry and to our courts of law. The coroner finds himself frequently in the witness chair. It is one of the obligations of the office he holds. He is expected to enlighten the court in the art and practice of general medicine and specifically in its medicolegal aspects. The coroner is assumed to possess at least a rudimentary knowledge of legal procedure and of laws that affect him as an expert. In order that justice be meted out and the reputation of the coroner's office protected, this knowledge should be a part of his education and training. Obviously, it is impossible to be an expert in all fields of medicine. Yet, the court and attorneys, by custom and law, expect the impossible. Unfortunately, the doctor usually acquiesces. Under usual circumstances, the average physician is careful with any medical allegations he may make. Not so in the courtroom. There is something about the scene that makes the doctor throw all caution to the winds. He becomes an expert in all things. The result is a fantastic mass of evidence. Some of it is outright inaccurate and much of it without benefit of pre-existing fact. The average physician is aware that psychiatry is a specialized branch. Under usual conditions, he would refer a patient with mental disease to a psychiatrist. The law, however, allows him to testify by a peculiar interpretation that reasons as follows, "... insanity is a disease; hence, one who is skilled in detecting and treating disease is competent to give an opinion" (Fayette v. Chesterville, 77 Me. 28, 52 Am. Rep. 741,1885). The physician should not allow himself to be led into a trap created by an illogical legal mind, untutored in medicine. He should delimit the extent of the subject in which he wishes to be considered an expert. It is no disgrace for him to profess ignorance in fields other than his own. It may take courage to defend this ignorance in the face of sarcasm and browbeating. Sometimes the very attorney who forces opinions in all things medical is the one to castigate the Received for publication July 1, Dr. Steinberg is Pathologist and Director of the Institute. 1149

2 1150 STEINBERG VOL. 24 witness before the jury for being an expert in all things, and to demand that no credence be given to any of his testimony. The coroner should delimit the expert testimony wholly or in part to the field of forensic medicine. In the case of death, it is within his ken of experience to determine whether homicide, suicide, accidental or natural factors were the causes. If it is homicide, it is proper for him to testify on the manner in which death was inflicted. There are several other fields within the scope of the coroner's knowledge and experience. He should go no further. It is his prerogative to ask for experts in other branches of medicine. An expert witness must be aware of the judge, the jury and the attorney. He must reply to the attorney but speak to the jury and show no neglect of the judge, and he must not forget the stenographer. PREPARATION OF TESTIMONY The preparation for the witness chair should begin long before the trial. The expert who prepares his case when already sitting in the chair is a liability to his side and an impediment to justice. The study of a case requires teamwork of the attorney and the expert. The former should acquaint the physician with the facts and the legal aspects of the case. The expert, on the other hand, should present to the attorney a general medical picture pertinent to the case and follow it. with specific information on the subject. After the medical expert and the attorney become familiar with the general and specific issues, preparation of the subsequent phase is begun. Testimony that an expert gives in the courtroom consists of a series of questions and answers. These are submitted in 4 different forms: 1. Direct examination by the attorney on the same team with the expert. 2. Hypothetical question by the attorney on the same team. 3. Cross examination by the attorney on the opposing team. 4. Re-direct examination of the attorney on the same team. Since all information elicited from the expert is in the form of questions and answers, these should be prepared by the team carefully and before the trial. The team should work as follows. The physician should submit the questions from the medical point of view. The attorney may rephrase them to conform to legal requirements. An answer should be prepared with each question. Theanswers should be responsive. The expert should not and may not include in his replies information not present in the questions. There is one type of testimony that does not conform to this rule. It is the "omnibus" type, which is phrased usually in this fashion: "Doctor, tell the court and the jury all you know about this case." A question so worded labels the attorney. He is either incompetent, or lazy, or both. His expert is in danger of being smeared by the same brush. This "onmibus" question is an ideal one for the physician to flounder about. He may omit important facts. He may repeat himself and produce a sorry picture, which does not flatter either himself or the case that he espouses. In preparing the questions, they should be worded briefly and simply. The answers should be equally brief, simple and without technical terms. The ques-

3 OCT EXPERT MEDICAL TESTIMONY 1151 tions and answers should progress the case and unfold the developments like a plot in a story. The hypothetical question should be the culmination of the testimony. It should summarize the issue and present the views of the attorney. The premise of the hypothetical question must include the facts in the case and the interpretation of the team. The medical aspects should conform to the beliefs of the expert. The conclusion of the hypothetical question should summarize the purpose and the view of the case. The answers of the expert should follow this pattern: "Yes, I have an opinion. My opinion is so." The answer must be brief and to the point. Let no jury mistake the meaning of this answer. The fewer the words used, the more dramatic is the effect. A few, well-chosen sentences imprint themselves on the minds of the jury. A verbose recitation destroys the value of the hypothetical question. Let no attorney lead his expert into the false path of verbosity. The expert has the privilege to explain his answers. Either party may ask for reasons for his opinion. By leave of the court, he may give an explanation (State v. Potts, 20 Nev. 333, 22 Pac. 241, 1889). He should have little occasion to explain answers to questions propounded by his side. The expert should be aware of the legal connotations to his opinion. When he renders an opinion, he subjects himself to examination in all phases of the subject. The expert may base his answers on personal knowledge of the issue, on the testimony of others and on the facts testified by experts. In the cross examination, the witness may find it necessary to explain his answers. No expert is required to give a categorical answer of "yes" or "no" to a question that he says cannot be answered categorically (Quinn v. O'Keefe (sup) 9 App. Div. 68, 41 N. Y. (sup) 116, 75 N. Y. St. Rep. 573,1896). An expert may base his testimony on knowledge derived from books, authorities and previous experience (Thompson v. Amons, 160 Ga. 586, 129 S.E. 539, 1922 and Wright v. Berry Iron & Steel Co. 213 Mo. App. 599, 250 S.W. 492, 1923). The next phase of preparation consists of composing questions to be asked the opposing expert on cross examination. Answers should be provided. This will guide the cross examiner in evaluating the answers given by the witness of the other team. The extent of cross examination should depend upon the character of the opposing witness. The following classification of experts will help in determining the extent of cross examination to which they may be subjected. The experts are (la) informed or (lb) ignorant, (2a) keen or (2b) slow-witted, and (3a) honest or (3b) unreliable. Any combination including types lb and 3b are witnesses who may bring confusion to the issue. Any combination in which type 3b is found is best not cross examined. The answers may be glib, unreliable, frequently fantastic and difficult to contradict. Issues may be established and reaffirmed by questions asked of the team's own witness. Experts that include types la, 2a and 3a may be questioned to good advantage. Justice is best served by well-informed, keen and honest expert witnesses on both sides. Choice of expert witness by virtue of imposing personality, political or civic honors may win a case but may not serve justice.

4 1152 STEINBERG VOL. 24 EXAMINATION OF THE WITNESS In preparing questions and answers, attention should be paid to qualifying the medical witness as an expert. As a matter of fact, there are no recognized standards for qualification. The available judicial opinion reflecting the situation is that in the case of Arbruster v. Levitt Realty & Investment Co., 341 Mo. 364, 107 S.W. 2nd 74, (1937), which reads in part: "... witness possessing peculiar knowledge, wisdom, skill, or information regarding the subject matter under consideration, acquired by study, investigation, observation, practice, or experience...." Common sense requirements for an expert medical witness, supported as a rule by the court, are as follows: 1. Possession of the degree of Doctor of Medicine, 2. Practice in any field of clinical or laboratory medicine for a number of years, 3. Certification by the State to practice medicine, 4. Certification by specialty boards, 5. Membership in recognized medical associations and institutions. A medical witness who desires to qualify as an expert and to promote the ends of justice should possess the following qualifications: 1. Knowledge of the specific field, 2. Ability to translate technical phraseology into understandable words for the jury and court, 3. Familiarity with judicial procedures, 4. Avoidance of bias, 5. Adherence to the truth, 6. Avoidance of pet theories. When the attorney qualifies his expert, the training and experience relative to specific issues brought before the court should be stressed. In the case of a coroner, relevant questions concern the number of years of experience, the number of autopsies attended and specific fields of training. All qualifying data should be carefully and thoroughly discussed with the expert prior to his appearance in court. It is well for the expert witness to know the attorney on his own team, and if possible the attorney on the opposing team. Since the witness imparts to the court information in response to questions, the attorney who asks them can win or lose the case. Expert testimony is only as valuable as the attorney makes it. Poor preparation, unsuitable and ambiguous questions, or bad use of the witness, nullify the value of the best expert. The medical witness may be guided in evaluating his man on the team by the following impressions he has gained of the attorneys: Are they mentally alert; are they verbose (talk but never listen); do they have a Jehovah complex (know everything and will not spend time in preparing); and do they have step-ahead minds (do not listen, but prepare a plea to the jury when conferring with the expert)? From the point of view of the expert witness, every attorney is: biased; expects positive answers to questionable situations; unreasonable; ignorant of

5 OCT EXPERT MEDICAL TESTIMONY 1153 the medical subject but thinks he knows it; frames questions impossible to answer. SUMMARY Expert medical testimony represents teamwork of the attorney and the physician. There is no substitute for knowledge of the subject, preparation of the material and familiarity with judicial procedures. Testimony is relayed by questions and answers. They should be brief, informative, free of technical terminology and progress the case. The proper employment of the "question-answer" procedure offers the best opportunities of presenting the issues to the court and the jury. Classifications of medical experts and attorneys are submitted for guidance.