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Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
Ordinarily, the selection of the plaintiff's expert is made well in advance of trial. Ideally, he or she has had an opportunity to review all pertinent medical facts, and has been able to discuss them at length with counsel. The witness, if he or she is not experienced at testifying, should be told to not be embarrassed about this preparation, and that if the subject of lengthy pretrial discussions with counsel is raised by the opponent during cross-examination, to not hesitate to admit to such discussions.
If a physician is testifying for us as an expert for the first time, we provide him or her with a copy of the following instructions.
THE DOCTOR AS AN EXPERT WITNESS
We hope that some of the following suggestions may be of assistance to you in testifying as an expert witness and clarify any questions you might have.
A. REQUIREMENT OF "MEDICAL PROBABILITY"
1. The law requires that a medical expert give an opinion based only upon "reasonable medical certainty" or "reasonable medical probability." It is important to note that the legal definition of these phrases is different than the medical definition.
2. In law the two phrases are identical in meaning. The legal definition of the two phrases is simply that the doctor must feel that the opinion is more likely than not accurate. For example, if the doctor is asked, based upon the reasonable medical certainty, whether the injuries were the result of the accident, the doctor need only feel that the accident was "more likely than not" the cause of the injury claimed in order to answer "yes."
3. The law makes a legal distinction between "possibility" and "probability." Opinions based upon possibility are not necessarily admissible. Therefore, if the doctor uses any of the following phrases in connection with his or her opinion, such testimony may be stricken by the judge:
(1) It "might be" true.
(2) It "is possible."
(3) It "might have" that effect.
(4) It "could have" that effect.
4. While there must be more than a bare possibility, the law does recognize that a degree of uncertainty is present in almost every medical opinion. Our court has said: "It is consistent for a doctor to admit an element of speculation and still be convinced that an accident is more likely than not the cause of the injury." Also, "circumstantial evidence" is usable.
B. TESTIMONY REGARDING HISTORY OF PATIENT
1. The law allows a doctor who sees a patient for the purpose of examining or treating the patient to tell the jury what history the patient gave and to relate any subjective complaints or findings of the patient.
C. EXPLAINING MEDICAL TERMS
1. It is important that the medical expert explain the use of medical terminology, like "loss of lordosis" or "scoliosis," as these things are foreign to the knowledge of the jury.
D. PROOF OF MEDICAL NEGLIGENCE
1. In a medical negligence case, the law requires the plaintiff to show the following things in order to recover a verdict:
(1) That there is a standard of care and skill expected of the average medical practitioner acting under the circumstances involved in the case.
(2) That the defendant physician failed to meet this established standard of care applicable.
(3) That the defendant physician's failure to meet this standard of care caused the injury to the patient.
(4) Application of the doctrine of res ipsa loquitur ("the thing speaks for itself").
E. HYPOTHETICAL QUESTIONS
1. The law requires that a physician who does not have personal knowledge regarding the patient or the occurrence must give his or her opinions by hypothetical questions. A hypothetical question is one that asks the doctor to assume certain hypothetical facts and express an opinion based upon those facts contained in the question without specifically referring to a particular patient.
2. The law requires, with regard to answering hypothetical questions, that:
(1) The witness base his or her answer on the facts contained in the hypothetical question.
CROSS-EXAMINATION OF THE MEDICAL EXPERT
A. "YES" AND "NO" QUESTIONS
1. If a question is phrased so that only a yes or no answer is expected, the witness must answer the question but has the right to explain the answer after answering. If the medical expert feels that he or she cannot answer a question yes or no, the witness has a right to respond that the question cannot be answered yes or no. If the witness feels a yes or no answer requires an explanation, the witness has the right to ask the judge whether he or she might explain.
B. ATTACK ON QUALIFICATIONS
1. Defense attorneys will sometimes attack the medical expert's qualifications to offer an opinion or to treat a particular type of medical problem. Questions suggesting that a specialist in the field would be in better position to treat the patient or give an opinion on the matter are not uncommon. The law, however, does not make a distinction as to the qualifications of an expert physician based upon medical specialties. Experience and training carry great weight as to the qualifications of a witness.
C. ATTACK THROUGH BOOKS OR ARTICLES
1. Some attorneys may use medical books or articles in an attempt to contradict the testimony of the expert physician. The approach is to ask whether the witness agrees with the statement found in some prestigious medical literature. The statement, of course, contradicts the previous testimony of the witness.
2. Remember that before this procedure can be used, the medical expert must recognize the book as authoritative in its field or a standard text in the medical field. If the medical expert does not so recognize the book or article, the cross-examining lawyer may not read from it. Only if the medical expert recognizes the book or article as authoritative in the field and "relies" upon it should he or she so admit it.
3. Even so, the medical expert has the privilege of disagreeing with the opinions of the most eminent specialists, particularly where the witness is referring to a specific patient about whom the witness has a great deal of information, and the book or article is speaking in generalities.
D. ATTACK BASED ON PERSONAL INTEREST IN CASE
1. On some occasions the doctor may be attacked for being personally interested in a patient who has been a patient of many years standing. The best rule is to answer the question fully and frankly since sincere, frank testimony registers with the jury.
2. On some occasions the doctor may be questioned as to an interest in the case if the patient's bill has not been paid; the implication being that the doctor is assisting the patient to get a recovery in order to see that the bill gets paid. Even though the question is insulting, the doctor should answer forthright and calmly.
3. The doctor may be asked about his or her fee for testifying in court with the implication that the doctor is a "paid witness." A reasonable answer is that you intend to bill based upon the amount of time involved in testifying as an expert in the case. No jury is going to consider that improper unless the amount is excessive.
E. FLATTERY TECHNIQUE
1. Many lawyers attempt to mitigate the effect of the injuries by what is called the "flattery technique." Such questions as "Doctor, you obtained a marvelous result with regard to your treatment" and the like are used. Keep in mind that the purpose of such questioning is to mitigate the extent of injuries. Also remember that at times a good functional result is obtained but yet serious injuries or disability remain.
F. "IT IS TOO EARLY TO TELL" TECHNIQUE
1. Another common technique on cross-examination is to suggest that opinions regarding the future are speculative because it is too early to tell. Suggestions that there will be improvements are likewise made. The questions are always framed in terms of 100% certainty. For example, "Doctor, are you 100% certain that this patient will not make some improvement?" "Isn't it possible, doctor, that there will be improvement?"
2. Obviously, no one can predict the future with 100% accuracy, but the law does not require such a test. The test is whether it is "more likely than not" in the doctor's opinion that these conditions will continue to exist. On the other hand, if the question can be answered with 100% certainty, be sure to give that answer.
G. ATTACKING THE DOCTOR'S OPINION GENERALLY
1. The main attack on cross-examination will be the defense attorney's attempt to quarrel with the diagnosis and treatment. There are various ways of doing that. Some of the most familiar are:
(1) The doctor based the diagnosis on purely subjective complaints.
(2) The doctor didn't have the complete and accurate case history.
(3) The doctor didn't know that this plaintiff once had a prior injury.
(4) The plaintiff could be feigning or malingering and the doctor did not give any tests to rule out malingering.
2. The defense attorney's approach also may be that the symptoms are due to causes other than medical negligence or that some disease syndrome is giving rise to the various effects.
H. ATTACKING THE HYPOTHETICAL ANSWER
1. If the hypothetical answer has been given, several well-known cross- examination techniques will probably be used.
(1) Two Schools of Thought. The suggestion is made that there is no real uniform view on the particular matter but that there are, in fact, two substantial schools of thought in medicine on the subject. If this is true, there is no true standard of care and there can be no liability under such circumstances. A similar question asked is "Isn't there a 'respectable' minority" who would follow the actions that the defendant physician followed in this case?"
(2) Matter of Judgment. The approach here is to suggest that medicine is not an exact science and there is much judgment involved in treatment; that the defendant doctor's actions were simply a matter of judgment on his or her part. The suggestion is that it falls in the gray area of judgment where there are no true standards as to what ought to be done.
(3) Not What the Witness Would Have Done. Another attempt is to show that the witness is simply saying that he or she personally would not have done what this defendant doctor would have done. Again this is an attempt to show that there are no real standards involved, but that simply the doctor personally disagrees. The test is whether the standards of medicine in that area are contrary to the actions of the defendant doctor, not what the personal approach of the witness might have been.
(4) Attacking Assumptions Made. Here the approach is to show that the witness has answered the question based solely upon the facts assumed in the question. Therefore, if any of the facts are incorrect, the doctor's whole opinion must be incorrect. The cross-examiner then proceeds to attempt to show certain facts that have been assumed are not really accurate. The witness must be careful in answering this question to be sure that the specific fact referred to is a crucial fact that might change the opinion if it were different.
(5) Different Assumptions. The cross-examiner will invariably ask the witness to assume different facts than were originally contained in the hypothetical question and to express an opinion. This is permissible and the purpose is that the cross-examiner will assume all of the facts favorable to his or her case and ask the doctor to express an opinion. The doctor should be prepared to express opinions based upon facts favorable to the plaintiff and to express opinions based upon facts favorable to the defendant. Particular attention must be paid to the facts that the witness is being asked to assume however.
(6) Even if Due Care Same Result. Another approach commonly used is to ask whether it is not true that even where due care and skill is being exercised do not these results sometimes occur. The purpose of this question is to show that "it was just one of those things."
1. UNDERSTAND THE QUESTION before you attempt to give an answer. You can't possibly give a truthful and accurate answer unless you understand the question. If you don't understand, ask the lawyer to repeat it. Keep a sharp lookout for questions with double meaning and questions that assume you have testified to a fact when you have not done so.
2. DO NOT LOOK AT THE LAWYER FOR HELP when you are on the stand. You are on your own. You will not get any help from the judge either. If you look at the lawyer for your side when a question is asked on cross- examination or his or her approval after answering a question, the jury is bound to notice it, and it will create a bad impression.
3. DO NOT FENCE OR ARGUE WITH THE LAWYER on the other side. The lawyer has a right to question you, and if you engage in smart talk or give evasive answers, the judge may reprimand you. Don't answer a question with a question unless the question you are asked is not clear.
4. DO NOT LOSE YOUR TEMPER no matter how hard you are pressed. Lose your temper and you may lose the case. If you lose your temper, you have played right into the hands of the other side.
5. BE COURTEOUS. Being courteous is one of the best ways to make a good impression on the court and jury. Be sure to answer, "Yes, sir" and "No, sir" and to address the judge as "Your Honor."
6. IF ASKED WHETHER you have talked to the lawyer on your side, or to an investigator, admit it freely. Remember you are not getting paid for your testimony, you are being reimbursed for the time you lose and your expenses.
7. DO NOT BE AFRAID to look the jury in the eye and tell the story. Jurors are naturally sympathetic and want to hear what you have to say. Look at them most of the time and speak to them frankly and openly as you would to a friend or neighbor.
8. GIVE A POSITIVE ANSWER when you can. If you were there and know what happened or didn't happen, don't be afraid to "swear" to it. You were "sworn" to tell the truth when you took the stand.
9. UNDER THE LAW this case must be tried without the jury being advised as to whether any party is covered by liability insurance. Therefore, do not mention insurance in any way. Do not use the words "insurance," "insurance agent," "insurance adjuster," "insurance investigator," or any similar words, and do not identify any person as an "adjuster." All of the attorneys know about this rule and they will not ask you any questions that require you to violate the law in giving your answer.
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