WORKING WITH MEDICAL EXPERTS. important to learn how they evaluate evidence and realize their methodology is

Transcription

1 WORKING WITH MEDICAL EXPERTS. Working with medical experts can be a daunting task for trial lawyers. It is important to learn how they evaluate evidence and realize their methodology is different than the legal methodology. This presentation focuses on dealing with medical experts on direct and cross examination. In the bulk of my trial career most of my cases involved medicine, including doing direct and cross examination of expert witnesses in medical malpractice cases. The quality of witnesses in that type of work was amazing and I had the opportunity to work with and against doctors with national reputations along with a great deal of testimonial experience. Hopefully this article will provide some helpful insights and shorten the learning curve in dealing with these experts. As a disclaimer, I was hesitant to agree to do this presentation, given I did no child protective work in practice and am not assigned to this trailing docket. As a consequence, while I am hopeful this translates into the child protective world, I make no guarantees. I. GETTING THE OPINION ADMITTED. A foundation must be laid that the expert is qualified. This is usually established by completion of medical school, residency and a license to practice in

2 a state. Doctors who practice for a certain number of years become board eligible to take an examination which, if passed, will establish them as board certified. Many doctors are not board certified and even a failure of the examination does not prevent them from practicing if properly licensed. Further, the failure to achieve board certification does not disqualify them from offering expert opinions and arguably only goes to weight given to their opinions. B. Basis for the opinion. Under Maine Rule of Evidence 703, an expert may rely on inadmissible evidence as a basis for their opinion if it is of the type reasonably relied on by experts in their field. In medical cases, expert witnesses are frequently asked to consider x-rays, CT scans and the results of other diagnostic testing as the basis for their opinion. Many times it can be problematic to be able to introduce the foundational data, to get this material actually admitted. Even if the results of these tests have not been admitted, the medical expert can testify that he has reviewed those and that they form a part of the basis for their opinion. See, e.g., State v. Flint H., 544 A.2d 739 (Me. 1988). Under Henricksen v. Cameron, 622 A.2d 1135 (Me. 1993), however, the actual results of these tests would be inadmissible. Once this material is inquired into on cross-examination it becomes admissible. However, not discussing it in direct examination makes it look as if you are hiding something. Because of this it is better to have the expert

3 discuss all the underlying bases for their opinions in direct examination. Since it is strategically difficult for defense counsel to object to the data on direct examination and then attempt to use it on cross-examination, this is a worthwhile risk If medical studies or textbooks support your expert s opinion, using them in direct is very effective. It is important for the medical witness to be able to articulate what is the significance of a peer reviewed study and why it is valuable. This is also an important opportunity to establish medical textbooks and articles as being authoritative. Even if there is objection to using the actual text of the article with your medical expert on direct examination under Maine Rule of Evidence 803(18), your witness can establish that the text or article is authoritative. It may then be used on cross-examination of their expert. This avoids the problem in which the defense medical expert is unwilling to concede that the textbook is authoritative. D. Level of certainty. The level of certainty with which an expert medical witness needs to express an opinion is an area that is often confused. Doctors ordinarily do not think in terms of probabilities but in terms of medical certainty. In many circumstances it is simply unsafe and may well rise to the level of malpractice for doctors to use a decision-making model which is based on probability. Take for example, the

4 patient who has been lifting weights for the first time in many years, thinks he has strained a chest muscle and presents to the emergency room with acute onset of chest pain associated with exertion. It would likely be a breach of the standard of care for the emergency room doctor to simply conclude, based on history, this is probably a muscle strain and not investigate the more serious possibility that this could be a heart attack in progress. Only once the doctor is convinced to a reasonable medical certainty that the patient is not having a heart attack does he or she act on the more probable diagnosis of a pulled muscle. To work effectively with medical experts it is crucial that they understand that their opinions in a legal case are not based on the same level of certainty as they are in their medical practice. The doctor needs to understand that the opinion does not need to be based on absolute or medical certainty. See Kay v. Hanover Ins., 677 A.2d 566 (Me. 1996) ( the level of certainty of a qualified medical expert goes to weight not admissibility ). questions based on medical certainty are objectionable. This is often a strategy used to make the medical expert witness believe that his or her opinion needs to be based upon a higher standard of proof than the law requires.

5 The medical expert should also understand legal causation can include more than one cause and the act need only be a substantial contributing factor. The doctor needs to understand that the standard of proof in a case, whether it be a preponderance or clear and convincing evidence. DAUBERT: STATE V. FEDERAL Introduction In working with medical witnesses Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) may be an issue. However, do not assume Daubert is applied in Maine state cases and remember Daubert focuses on the method of reaching the opinion not the opinion itself. A. The status of Daubert in Maine state court. State v Williams, 388 A.2d 500 (Me. 1978), reflects the current status of Maine law on scientific evidence. See also Searles v. Fleetwood Homes of Pa. 878 A.2d 509,516 ( Me. 2005) ( Law Court declines to adopt Daubert application of general acceptance in a State V. Williams analysis) Williams stands for the propositions that for the scientific evidence to be admitted, the trial judge needs to believe that it is relevant, it will assist the jury in understanding the evidence and

6 has been arrived at in a generally reliable way. Daubert has never been adopted as the appropriate analysis for expert testimony in Maine state cases. The Advisory Committee to the Supreme Judicial Court on Maine Rules of Evidence in 2000 wrote: The Maine Law Court s Williams decision requires the trial court to make a threshold determination of the quality and applicability of proposed scientific or other expert testimony under the concepts of relevance and helpfuless [sic] to the fact finder. In the view of the Committee the Williams test fulfils the same function as does the Daubert/Kumho test, with the added advantages of simplicity and flexibility. The last 20 years of experience with the Williams test in Maine have produced no complaint on the part of bench or bar. See, e.g. State v. Tomah, 1999 ME 109 (July 12, 1999). Accordingly it is the recommendation of the Committee that lawyers and judges continue to apply the test described in Williams to expert testimony under Maine Rule of Evidence 702 rather than attempt to import the reasoning of Daubert or Kumho. B. Medicine and Daubert. Daubert lists a variety of factors that can be utilized in determining whether or not a given opinion has utilized adequate scientific methodology to establish reliability. However, the most important feature of Daubert is that it has emphasized that this list of factors in determining reliability are not exclusive. This is important because the specific type of analysis involved in Daubert is either unnecessary or may not be ethically possible in many areas of medicine. Major epidemiologic studies are not necessary to establish many medical principles. Courts have recognized that the ordinary process of differential diagnosis by a

7 medical doctor is a scientific method under Daubert analysis. See, e.g. Baker v. Dalkon Shield Claimant s Trust, 156 F.3d 248, 253 (1 st Cir. 1998). Differential diagnosis looks at the list of potential causes for a patient s symptoms then methodically works through a process of exclusion by history or testing to eliminate potential causes in order of risk until one is left. To be able to overcome a Daubert challenge it is important to be able to do the following: 1. Either find in generally accepted medical textbooks or in medical research a recognition of the proposed diagnosis/ causal factor. 2. Establish that your medical expert has undertaken the differential diagnostic process and methodically ruled out other causes. 3. Remember statistical analysis is not appropriate in many medical circumstances because withholding potentially beneficial treatment to patients to establish a control group may not be ethically available. III. EXAMINATION OF MEDICAL EXPERTS IN PERSONAL INJURY CASES. 1 ( This comes from another article in the hopes it might be helpful to those in general practice) A. Treating physicians. It is crucial before examining the treating physician to have met with them in person and explain to them how important their role is and to make sure that they

8 understand both the burden of proof and the level of certainty to which their opinion needs to be explained. Treating doctors are most often willing to help once you can clear up their misconceptions and prejudices about how the system works and make them understand that they do not need to be absolutely certain but simply hold their opinion in terms of probability. It is important for treating doctors to understand that the accident need only be a contributing factor to the patient s problem and not the only reason. If the patient has a pre-existing condition the treating doctor should understand that to establish legal causation they need only testify that the accident aggravated that pre-existing condition or caused it to become symptomatic. See Packard v. Whitten, 274 A.2d 169, 177 (Me. 1971) and Theriault v. Swan, 558 A.2d 369, 372 (Me. 1989). The most important issue for the treating physician is not that the accident caused the underlying condition such as degenerative disk disease or osteoarthritis but the question is did the accident make those pre-existing conditions symptomatic or worsened them? In my opinion the best way to ask this type of question to a treating medical expert is this: 1 While not applicable to the topic at hand, given that many lawyers in this program have general practices, rather

9 Q: Doctor, do you have an opinion based upon probability about whether or not the car accident that my client was involved with is a substantial contributing factor to her current physical condition? A: Yes. Although she had some evidence of degenerative disk disease prior to the accident, she had no significant symptoms and I believe that the accident caused her condition to worsen and become symptomatic. B. Overview of the medical expert on direct. Introduction 1. Establish early on the medical expert s familiarity with the diagnosis.. 2. Highlight from their curriculum vitae only things which are particularly impressive. These might include articles on point or have been published in particularly important medical journals such as the NEW ENGLAND JOURNAL OF MEDICINE. 3. Bring out any teaching credentials of significance. 4. Deal up front with the issue of whether or not the doctor any potential bias. 5. Let the doctor be a teacher to the court. Use charts and models if available. You don t need to buy these. Doctors routinely use these to explain issues to patients and are usually willing to bring them to court. than edit this from a prior paper, I elected to leave it in the hopes it might be helpful in their other types of cases.

10 6. It is useful to present the direct examination in fundamental ideas, i.e. the goal of the emergency room doctor is to protect the patient from immediate ham Medical expert witness are nearly always very well credentialed and well spoken. Cross-examining them must be done with great care or they can do a good deal more damage on cross-examination than they have on direct. Because of this cross-examination of medical experts should ordinarily be short, to the point, and establish propositions that the doctor is not likely to disagree with either because they come from authoritative medical textbooks or can be gleaned from the medical record and reports. To prepare and perform an effective cross-examination of a medical witness I believe that the following things are helpful: First decide if cross examination is going to help. Adopt the doctor s creed of First do no harm. If you do not have medical evidence which contradicts the experts testimony, arguing with a doctor who has devoted his professional career to protecting children that there really was no abuse or failure to thrive is a waste of time and is counterproductive. This is especially true if there is some chance the witness may concede this

11 issues are not due to your client s actions or that your client may be able to alleviate jeopardy in a time frame which would preclude parental termination Establishing that a text is authoritative does not mean that it is the one and only source for any particular subject. The fact that a textbook is one of many reliable authorities is enough to be able to use it as a learned treatise pursuant to Maine Rule of Evidence 803(18). If the doctor will not agree much with you about your client s case, get them to agree with general propositions set out in these textbooks and then argue that your client meets those general propositions. When doing examination of doctors, if you believe you have established something important it is generally a good idea to more on to another subject without belaboring the point. Doctors are very effective witnesses and if you make it clear to them that they have made a mistake, they will fix it. Other miscellaneous tips: use objective signs of injury to increase the patient/client credibility Doctors like police officers usually write everything important down this includes pertinent negatives. Some diagnoses are made only with history and without objective signs.

12 Doctors do not prescribe medication or treatment with significant side effects or risk without believing the patient. Avoid time delay. When a witness needs time to answer a question, they may pretend they cannot find the document. If you are working with bate stamped or numbered documents,bring the witness to the document before you ask the question so that this tactic will not work. DIRECT EXAMINATION TEMPLATE 1. Please state your name. 2. Please give us a thumbnail sketch of your educational background and training that led you to become a doctor. 3. Do you focus your practice in any particular area? 4. Are you board certified? If so, please explain what board certification requires. 5. Are you currently licensed to practice medicine in the State of Maine? 6. Identify and offer the doctor s curriculum vitae. (past recollection recorded.) 7. Please identify any published works or professionally significant accomplishments. ( use leading questions to allow the doctor to respond without looking egotistical.) 8. When did you become acquainted with this patient? 9. At that office visit did you take a history from the patient?

13 10. What did that history reveal? (child or 803(3) ) 11. Did you do any physical examination on the patient? If so, what did it reveal? 12. Could you explain the difference between an objective and a subjective sign or finding 13.Was the history taken from this patient consistent with the objective physical examination? 14. Did you perform any diagnostic tests? If so, are these routinely relied upon render a diagnosis? What were the results? (Henricksen) 15. Did you consult with any other physician? 16. Have you any other medical records regarding your diagnosis and treatment of this patient? If so, please identify what they were. (Henricksen). See also Rule 703, Maine Rules of Evidence. 17. As the result of the physical examination, the history examination you did the diagnostic evaluation and consultations, did you reach an opinion as to the diagnosis in this case? (yes or no allows the proper objection to be made to either a lack of foundation or lack of qualification, to render such an opinion). 18. What was that opinion? Please explain to the judge what failure to thrive means, and why you believe it was an appropriate diagnosis in this case. 19. Was there any other additional information that you feel was necessary to confirm this diagnosis? 20. What was the treatment that you prescribed for this patient? 21. Do you have an opinion about what substantially contributed to this diagnosis/failure to thrive? 22. What were those factors in your opinion 23. Did you consider patient a reliable historian?

14 24. Identify medical notes and reports and offer into evidence. See 803(6) (Keep in mind that the term profession is within the meaning of business record exception. Also remember litigation is not a business within the meaning of the business record exception so the purpose intended for a forensic report may be critical to admissibility. Was it intended solely for the court or also to assist in future treatment?) CROSS EXAMINATION TEMPLATE 1. Be prepared for your witness. A. Google the doctor. B. Go to PubMed website and search the doctor for publications as well as the condition or diagnosis that is at issue in your case. C. Consider using a subpoena duces tecum for trial, identifying, asking the doctor to bring with him the following items. 1. His curriculum vitae. 2. Abstracts of any articles authored. 3. His Federal Rule 26 expert list. D. Learn the Medicine. Start with the AMA Family Medical Encyclopedia. Next look at the Merck Manual. Then review the PubMed website and textbooks like Tintinalli on Emergency Medicine or Nelson Textbook of Pediatrics or anything on Dr. Ricci s c.v. to understand your subject. The Harrison or Cecil texts on Internal Medicine are relatively understandable for lawyers. Borders and Barnes and Noble also are good free resources for medical texts. (looking, not buying!) 2. Do no harm vs. Hear me roar: choose do no harm. 3. If the choice is to go and proceed with cross-examination, what is your theory?

15 A. Do not argue medicine with a doctor, unless you have your own credible medical expert, and even then, it should be done sparingly. B. In a PC case, the doctor s motivation is to protect children,so arguing with them about their diagnosis, is much less effective than addressing causal factors which may not be due to your client or issues that can be corrected in a time frame reasonably designed to meet a child s needs 4. Pick a theory. A. There was no jeopardy. B. The jeopardy was not my client s fault. C. Even if there was jeopardy, then now is the chance for my client to reasonably accommodate and protect the child in a reasonable amount of time. 5. The Walter Smith phenomenon. If you are respectful to the doctor, the doctor will begin to associate you with your client. 6. Establish your own credibility. Pronounce the medical words correctly. Ask in the beginning, whether the doctor considers textbooks like Nelson on Pediatrics or Tintinalli on Emergency Room Medicine, can be considered among the authorities in their field. Even if they don t agree with you, they at least now know that you are aware of commonly utilized textbooks. 7. Is your doctor a writer or reader of textbooks? If they are a writer, using textbooks to cross-examine them is counter productive. If they are not, textbooks are a very effective way of reining in a doctor s willingness to expand on opinions. Simply by having them with you at the trial appropriately dotted with yellow stickies can be helpful. Think about it from your perspective. If you were being cross-examined about torts and the lawyer had the Restatement in her hand, how would you feel?

16 8. Listen on direct examination to the doctor s qualifications. Any doctor who is board certified, when asked the question, are you board eligible, will immediately respond that they are in fact board certified. The distinction is that when a witness who is supposedly board eligible, who has been out of school for greater than three to five years, the odds are likely that they have failed the board certification examination. If what happens is you simply ask the board certification question, it comes back as being board eligible and you don t pursue the line of examination about failing the test, many times doctors will be more reasonable knowing that this is hanging over their head. In the event that they are reasonable throughout the course of their examination, you don t need to bring up the fact that they may have failed it several times. 9. Cross-examine from the report. It is dangerous to ask questions, especially to expert witnesses who testify frequently, but do not specifically refer to their report. For example, the question, you didn t see any signs of abuse to the child, is much safer phrased as, isn t it true in your report you did not note physical injury to the child? 10. Pertinent Negatives. Doctors are much like police officers in evaluating evidence. Everything that is of significance is written down. This is because they are not going to remember all the details of this patient later and because their notes will be utilized by other physicians later on in the patient s care., in rendering diagnosis and treatment options. It is also important to note that doctors will document pertinent negatives. So, if there were no signs of physical abuse, the doctor will note that in their reports. 11. Don t argue with the doctor. Aggressive examination is rarely productive with medical expert witnesses. Sometimes expert witnesses are somewhat hesitant in some of their opinions and you are much better attempting to explore their

17 hesitancy rather than backing them into a corner where they will respond in a much more certain tone. 12. When in doubt to cross-examination, don t. Remember, there are no Matlock moments. 13. The cross-examination as closing. Especially with very articulate witnesses, it is better to think of a cross-examination as an opportunity to set out for the court from the records, facts that support your case. I think of this as doing a closing through cross-examination. Technically, your process is not to argue with the doctor or elicit concessions, but rather, simply to point out through the witness the facts in the report that are helpful to you 14. General propositions : try the following: Failure to thrive can occur from a variety of different factors, many of which are non environmental. Reasonable doctors can disagree about diagnosis and treatment. The problem of failure to thrive presents difficult challenges to doctors and even responsible parents. Medicine is sometimes part art and part science. 15. Mechanism of injury: is it a paraphrase or in quotes. Remember doctors focus may be on mechanism not forensics. A fall versus who pushed who. 16. Don t repeat direct. Don t repeat direct.