Wednesday, May 4, 2016

Crying Need for Reform of Medical Expert Witness, 1908

“Reform of the Medical Expert Witness” from the Editorial page of The Medical Brief: A Monthly Journal of Practical Medicine, May, 1908

There is a crying need for the reform of the medical expert witness. As constituted at the present time, he furnishes good material for the use of invective on the part of the newspaper editorial writer and is a veritable target for the “funny picture” man of the daily papers. There is a firm conviction (based upon repeated observations) in the mind of the average juror that one can get any kind of medical expert testimony that is needed if one has “the price.” And the more money there is to buy this testimony, the more experts can be produced. Under the American system, in a given case, each side is allowed to introduce as many experts as is “necessary” to “enlighten” the jury on technical medical matters. The average juror is correct in his belief that with money there is no cause so hopeless, no proposition so ridiculous and no crime so heinous but that you can procure a medical witness to swear that there is no cause for action, that the proposition is logical and that there has been no crime committed.

Does this state of affairs mean that the worship of Mammon is so all-powerful that the medical profession as a whole is ready and willing at times to prostitute itself for mere filthy lucre and swear away its honor for sordid wealth? Or does it mean that medicine in all branches is so empirical and so obscure that there can be an honest difference of opinion on any and all medical subjects?

The ignoble status of the medical expert witness can be explained in no other way, according to authorities on jurisprudence of this country. Harken to the words of Wharton in his work on “Evidence,” Section 454: “When expert testimony was first introduced, it was regarded with great respect. An expert was viewed as the representative of a science on which he was a professor, giving impartially its conclusions. Two conditions have combined to produce a change in this relation. In the first place, it has been discovered that no expert, no matter how learned and incorrupt, speaks for his science as a whole. Few specialties are so small as not to be torn by factions, and often the smaller the specialty the bitterer and more inflaming and distorting are the animosities by which these factions are possessed. Particularly in this the case in matters psychological, in which there is no hypothesis so monstrous that an expert can not be found to sweat to it on the stand, and defend it with vehemence. ‘Nihil tam absurdo,’ which being literally translated means that there is nothing so absurd that the philosophers will not say it. In the second place, the retaining of experts by a fee proportionate to the importance of their testimony is now as customary as is the retaining of lawyers.

No court would take as testimony the sworn statement of the law given by counsel retained by a particular side, for the reason as the most high-minded men are so swayed by an employment of this kind as to lose the power of impartial judgment; and so intense is this conviction that in every civilized community the retention of presents by a judge from suitors visits him not only with disqualification, but with disgrace. Hence it is, that, apart from the partisan character of their opinions, their utterances, now that they have as a class become the retained agents of the parties, have lost all judicial authority and are entitled only to the weight which sound and consistent criticism will award to the testimony itself. In making this criticism a large allowance must be made for the bias necessarily belonging to men retained to advocate a cause, who speak not as to fact, but as to opinion, and who are selected, on all moot questions, either from their prior advocacy of them or from their readiness to adopt the opinion to be proved. In this sense we may adopt the strong language of Lord Kenyon, that skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.”

Such is the status of the medical witness, in the mind’s eye of the bar, bench and public. What are we going to do about it? Shall we point out the immorality of telling lies on the witness stand to members of a learned profession? Shall we advise members of an honorable body to cultivate the faculty of truth-telling and to disdain the fleeting pleasures that go with the possession of wealth? Are not these principles of conduct instilled in every one of us at the knees of our parents? Are they not further expounded from the pulpits of all creeds? Are they not further emphasized as we sit at the feet of our teachers in our medical schools? We must answer, yes, to all these queries. At our medical schools, the student is told to be honest and upright in his dealings with his patients and with his professional brethren. He is instructed in the so-called “ethics” of the profession, drilled in the niceties of conduct in consultation work with his fellow practitioners. But how much is he told of the dangers that beset his path when he is called upon to appear before the bar of justice as a medical witness, ordinary or expert? We venture to say that he is told little or nothing about this. Moreover, he has unfortunately possibly heard of this professor or that professor having acted as an expert in cases from time to time and knows the partisan character of the testimony given by his teacher. Naturally, like master, like man, he follows in his teacher’s wake when called upon later in life to act as an expert.

We would, therefore, offer as a suggestion for the relief of this condition that our medical colleges establish more complete courses on legal medicine; that such chairs be given to men of competence in medicine, not to lawyers, as is commonly done. Let the subject be hammered into the heads of the students. Let them learn from one of their honorable professors that a physician’s views and opinions when given in the white glare of the court room should not differ so immeasurably as when given in the mild light of the sick room. Another step in the right direction would be the formation of medico-legal societies in large cities where lawyers and doctors could meet and exchange views with the end in view of bring order out of this present-day chaos. In this way, members of the bar may learn from personal contact with physicians something of legal medicine and, at the same time, members of the medical profession may learn something of interest to them from the standpoint of medico-legal jurisprudence from their legal brethren. At present, the average lawyer views a doctor who is called to court as a target for his sarcasm and irony, while the doctor in turn looks upon the lawyer as one who has a little knowledge of perhaps the one single medical fact at issue in the case, and consequently hardly deserving of ordinary courtesy when presuming to cross-examine him (the learning doctor) upon the general broad propositions of medicine.

The partisan character of the medical witness’ employment necessarily is a heavy burden to bear and high-minded indeed is the man, no matter what his calling may be, who can stand out against it and give opinions contrary to the good of the cause upon which he has embarked and to protect whose interest he thinks he has been compensated. Nevertheless, it is possible for the medical man even to bear this burden and come out honorably if he only will bear in mind that he should give counsel and medical opinion to the jury just as he  would were he consulted on these self-same points in the privacy of his consultation chamber. In no other way can this begrimed and besmirched repute of the medical expert witness be cleaned and purified. The limitations of the United States Constitution in respect to the calling of witnesses for an accused person practically forbid the employment of commission of experts alone in settling moot points in medicine as applied to causes at law. Therefore, the slogan of the medical profession should be, self-purification and better medical education.

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