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Medical testimony
MEDICAL TESTIMONY JEREMIAH F. CONNOR NEW YORK CITY
T
HE reIationship between injuries suffered through accident and disease cIaimed to have been aggravated or acceIerated by such accident has aIways been the subject of Litigation. For this reason a Iawyer must be somewhat familiar with medica questions, and is aIways interested in the manner in which the doctor or surgeon presents his testimony from the witness stand. In past years cases in which damages were sought for persona1 injuries were tried before a jury. In recent years and since the enactment of the Workmen’s Compensation Laws, the great majority of cases which arise out of industria1 accidents are tried before a referee or other judicia1 or semi-judicia1 officer. Jurors have IittIe knowIedge of medica questions, but in the administration of the Workmen’s Compensation Law, where medica testimony is given daiIy, an entireIy different situation is presented. The referee or the judge who continuaIIy handIes such cases becomes famiIiar with the reIationship between accidenta injuries and diseases. This makes it important for the doctor or the surgeon who acts as a witness to be sure of his subject, and to have sound grounds for any opinion which may be expressed by him. I am making a few observations as a resuIt of my experience covering the past seventeen years. We have two cIasses of physicians who give testimony and representatives of both cIasses appear very frequentIy. One is the genera1 practicing physician, and the other is the physician or surgeon who speciaIizes in some branch of medicine or surgery. The Iatter is commonly referred to as an expert witness, but it is wrong to say that the genera1 practicing physician is not aIso an expert. The difference between the two Iies in the fact that the speciaIist has had a much wider experience in his particuIar branch of medicine, has a more compIete knowIedge of the question invoIved, and for these reasons his testimony is
entitIed to greater weight. In the fina anaIysis the weight of the testimony is the onIy rea1 distinction between the testimony of the expert and that of any genera1 practicing physician. It sometimes happens that the same witness presents himseIf as a speciaIist or expert on so many branches of medicine that the weight of his evidence is weakened. The physician or the surgeon who has had actua1 treatment of the particuIar case is of course at a great advantage, and many times his testimony wil1 outweight the opinion of an expe;t who never saw the case and bases his opinion upon assumed facts in the form of a hypothetica question. The surgeon who performs an operation ‘has a great advantage because he has the actua1 knowIedge of what he has seen with his eyes and feIt with his hands. The same is true of a person who performs an autopsy, aIthough cases are presented in which it seems apparent that the autopsy was not compIete enough for a diagnosis. RecentIy a prominent surgeon performed a hernia operation, which was foIIowed in a few days by sudden death. The autopsy reveaIed congestion of the viscera, which was given as the cause of death, whereas the surgeon beIieved that the man died from a puImonary emboIism foIIowing the operation, and aIso beIieved that the autopsy did not go far enough to revea1 this fact. The weight to be given to the testimony of a physician in any given case depends on many considerations. The history, both before and after the accident,. and the persona1 knowIedge of the physIcIan, are of utmost importance. In a recent case a man was found on the street in a dazed condition, apparentIy suffering from some form of epiIeptic seizure. Nine months Iater he died of a tumor of the brain. The point invoIved was whether he feI1 and received a head injury which either caused or aggravated an existipg tumor. The case turned upon two factors, the first of
204
NEW SERIES VOL. XXVI, No.
I
Connor-MedicaI
which was the history subsequent to the accident indicating that he returned to work within a day or two, and made no compIaint and had no symptoms for severa months thereafter. The other was the knowIedge of the operating surgeon who found no injury to the tumor or surrounding tissues. The experience of the witness in simiIar cases adds much strength to his testimony; aIso his knowIedge of simiIar cases reported in medicat Iiterature. The importance of knowing the subject, and of research through the Iiterature cannot be overestimated, especialIy where the point invoIved is the connection between an accident and some unusua1 disease. UnIess the doctor knows his subject his testimony may uItimateIy prove worthIess. This is especiaIIy true in cases of occupationa1 diseases such as Iead poisoning. Most compensation Iaws in their origina form had no appIication to diseases which resuIted from Iong exposure to some poisonous substanck. Since the law has been extended occupationa diseases have been given much more study by physicians and surgeons, and to carry weight, the doctor who testifies in reIation to Iead poisoning or any other form of occupationa disease must keep abreast of the Iiterature on the subject. A recent case invoIving heat prostration and aIcohoIism is an apt iIIustration of the futiIity of giving evidence without fuI1 knowledge of the subject. A man coIIapsed at the end of a hard day’s work, with the temperature and humidity very high and made &II higher by the nature of his occupation. He died within an hour, and upon an autopsy the cause of death was given as heat prostration. Later there was a chemica1 anaIysis which reported 2 pIus aIcoho1 in the brain. The doctor who performed the autopsy was caIIed as a witness and testified emphaticaIIy that death was due to aIcohoIism. This doctor probabIy did not know that I pIus aIcoho1 is onIy a trace; that 2 pIus may come from a few gIasses of beer, Ieaves no condition which can be noticed by others, and means IittIe, if anything, in connection with sudden death. More exaggerated cases which physicians intending
are those in to be heIpfu1
Testimony
American hurnaI
0f
surgery 205
appear as witnesses and testify that death was contributed to by an accident, when in some cases they do not know the cause of death, and in others they are unabIe to describe the accident in question. It hardIy seems possibIe that such cases wouId arise, but the writer has met both cIasses in his own experience. Experts usuaIIy testify upon hypothetica1 questions. The weight of such expert testimony depends of course on the facts set forth in the question, and upon the abiIity of the expert to give convincing evidence. The attorney who frames the hypothetica question must be fair with the doctor, and must incIude a11 materia1 facts, and nothing else, otherwise the attorney, instead of his witness, wiI1 be responsibIe for the faiIure to convince the person caIIed upon to decide the issue. At the same time the doctor who answers a hypothetica question must stick to the facts. He may draw on his own experience, and may take into consideration Iiterature on the subject, but, as frequentIy happens, he must not assume facts which are not stated in the question. In the fina anaIysis, a doctor who gives evidence in a IegaI proceeding must stand or faI1 by his abiIity to convince the judge or referee that his concIusion in the case is correct. Lengthy discussions, coupIed with the use of technica medica terms, detract instead of adding weight to medica testimony. The doctor who is most successfu1 as a witness is the one who can reduce his concIusions to simpIe Ianguage and who can expIain to the judge or referee in such Ianguage the reason why there is, or is not, any connection between the accident and the disease from which the patient is suffering or which has caused his death. An iIIustration of what I have in mind is cases of sudden death from coronary thrombosis or coronary emboIism. The fundamenta1 cause of such deaths is a disease of the artery, but what appeaIs to the trier of facts is the termina1 condition which may be described as mechanica1. The artery may be compared to a smaI1 rubber tube, and the passage becomes
206
American
Journal
of Surgery
Connor-Medical
graduaIIy narrowed by disease. In the fina state the passage becomes so narrow that a bIood cIot forms spontaneousIy. This is a thrombosis which shuts off the suppIy of bIood entireIy, and is the termina1 or mechanica cause of the sudden death. The same thing happens with emboIism except that in addition to the bIood cIot there is some foreign particIe which heIps in its formation. In most cases of sudden death from such coronary diseases, some connection is aIIeged between the empIoyment and the death, usuaIIy a strain or the stress of heavy work. It is a matter of common knowledge that people die when they are at rest from coronary thrombosis or coronary embohsm, and when the terminal and the mechanica cause is expIained, it then becomes easier for the medica witness to expIain how some aIIeged accident contributed to the fina process, or convince the judge or referee that it had no reIationship thereto. In the administration of workmen’s compensation Iaws, attempts are made to connect aImost every form of disease with industria1 accidents. In connection with medica testimony in such cases, I think it important to emphasize again the fact that referees and judges who hear this cIass of cases become quite famiIiar with certain recognized standards of what we term “causa1 relationship” between disease and accident. A doctor who goes beyond the accepted standard in such cases wiI1 have a hard time convincing anyone of his opinion. It is generaIIy accepted that a severe trauma to the chest or any accident resuIting in infection wiI1 activate a dormant tubercuIosis. The opposite opinion on causa1 reIationship appears to be true when the disease is aIready active and Iater responds to treatment. An entirely different opinion prevaiIs in reIation to It is generaIIy accepted that pneumonia. this disease strikes the we11 and the sick in Iike manner, and death or recovery depends on the viruIence of the type and the peculiar Iung resistance or lack thereof in the particular individua1. There appears to be an eIement of foreordination and
Testimony
OCTOBER, ,934
predestination in cases of pneumonia and when a doctor asserts connection between ordinary trauma and ordinary pneumonia, he borrows considerabIe troubIe. Another cIass of cases weII-known in the compensation fieId is where death or disability is due to cancer. Certain cases, such as bone sarcoma at the site of a severe injury and skin cancer with continuity of symptoms from even a sIight injury, are recognized as connected with trauma. In many other cIasses, such as cancer of an interna organ, it is diffrcuIt to convince of causa1 reIationship except where there is direct damage to the cancer itself. These observations are made not as medica facts but rather as a Iay opinion resuIting from medica testimony in a muItitude of cases. They iIIustrate the difficulty confronting the medica witness when he is met with a lay opinion aIready formed. Extreme cases connected with rare diseases aIso arise on occasions. MyeIogenous Ieucemia may be taken as an exampIe, and the mere ipse dixit of a doctor does not go far in estabIishing connection between, for exampIe, a simple fracture and this bIood disease. Extreme cases also appear in ordinary diseases. In a recent hernia case the man had a hernia for a year before he had an automobiIe accident in which he received an injury to the Ieg. A doctor who saw him five months after the accident couId not convince the referee by his mere say so that this Iong existing hernia was aggravated by the accident in question. MedicaI witnesses often make a mistake by not admitting the possibiIities on both sides of the question where reIationship between trauma and disease is invoIved. Such admissions do not detract from their opinion in the particular case. in medica cases, as in Iaw cases, it frequentIy happens that “each case is a Iaw unto itseIf.” As a fina word, and even repeating what has aIready been indicated, the object of the testimony and the thing for the witness always to keep in mind, is to convince the man who must decide the case.
T
HE reIationship between injuries suffered through accident and disease cIaimed to have been aggravated or acceIerated by such accident has aIways been the subject of Litigation. For this reason a Iawyer must be somewhat familiar with medica questions, and is aIways interested in the manner in which the doctor or surgeon presents his testimony from the witness stand. In past years cases in which damages were sought for persona1 injuries were tried before a jury. In recent years and since the enactment of the Workmen’s Compensation Laws, the great majority of cases which arise out of industria1 accidents are tried before a referee or other judicia1 or semi-judicia1 officer. Jurors have IittIe knowIedge of medica questions, but in the administration of the Workmen’s Compensation Law, where medica testimony is given daiIy, an entireIy different situation is presented. The referee or the judge who continuaIIy handIes such cases becomes famiIiar with the reIationship between accidenta injuries and diseases. This makes it important for the doctor or the surgeon who acts as a witness to be sure of his subject, and to have sound grounds for any opinion which may be expressed by him. I am making a few observations as a resuIt of my experience covering the past seventeen years. We have two cIasses of physicians who give testimony and representatives of both cIasses appear very frequentIy. One is the genera1 practicing physician, and the other is the physician or surgeon who speciaIizes in some branch of medicine or surgery. The Iatter is commonly referred to as an expert witness, but it is wrong to say that the genera1 practicing physician is not aIso an expert. The difference between the two Iies in the fact that the speciaIist has had a much wider experience in his particuIar branch of medicine, has a more compIete knowIedge of the question invoIved, and for these reasons his testimony is
entitIed to greater weight. In the fina anaIysis the weight of the testimony is the onIy rea1 distinction between the testimony of the expert and that of any genera1 practicing physician. It sometimes happens that the same witness presents himseIf as a speciaIist or expert on so many branches of medicine that the weight of his evidence is weakened. The physician or the surgeon who has had actua1 treatment of the particuIar case is of course at a great advantage, and many times his testimony wil1 outweight the opinion of an expe;t who never saw the case and bases his opinion upon assumed facts in the form of a hypothetica question. The surgeon who performs an operation ‘has a great advantage because he has the actua1 knowIedge of what he has seen with his eyes and feIt with his hands. The same is true of a person who performs an autopsy, aIthough cases are presented in which it seems apparent that the autopsy was not compIete enough for a diagnosis. RecentIy a prominent surgeon performed a hernia operation, which was foIIowed in a few days by sudden death. The autopsy reveaIed congestion of the viscera, which was given as the cause of death, whereas the surgeon beIieved that the man died from a puImonary emboIism foIIowing the operation, and aIso beIieved that the autopsy did not go far enough to revea1 this fact. The weight to be given to the testimony of a physician in any given case depends on many considerations. The history, both before and after the accident,. and the persona1 knowIedge of the physIcIan, are of utmost importance. In a recent case a man was found on the street in a dazed condition, apparentIy suffering from some form of epiIeptic seizure. Nine months Iater he died of a tumor of the brain. The point invoIved was whether he feI1 and received a head injury which either caused or aggravated an existipg tumor. The case turned upon two factors, the first of
204
NEW SERIES VOL. XXVI, No.
I
Connor-MedicaI
which was the history subsequent to the accident indicating that he returned to work within a day or two, and made no compIaint and had no symptoms for severa months thereafter. The other was the knowIedge of the operating surgeon who found no injury to the tumor or surrounding tissues. The experience of the witness in simiIar cases adds much strength to his testimony; aIso his knowIedge of simiIar cases reported in medicat Iiterature. The importance of knowing the subject, and of research through the Iiterature cannot be overestimated, especialIy where the point invoIved is the connection between an accident and some unusua1 disease. UnIess the doctor knows his subject his testimony may uItimateIy prove worthIess. This is especiaIIy true in cases of occupationa1 diseases such as Iead poisoning. Most compensation Iaws in their origina form had no appIication to diseases which resuIted from Iong exposure to some poisonous substanck. Since the law has been extended occupationa diseases have been given much more study by physicians and surgeons, and to carry weight, the doctor who testifies in reIation to Iead poisoning or any other form of occupationa disease must keep abreast of the Iiterature on the subject. A recent case invoIving heat prostration and aIcohoIism is an apt iIIustration of the futiIity of giving evidence without fuI1 knowledge of the subject. A man coIIapsed at the end of a hard day’s work, with the temperature and humidity very high and made &II higher by the nature of his occupation. He died within an hour, and upon an autopsy the cause of death was given as heat prostration. Later there was a chemica1 anaIysis which reported 2 pIus aIcoho1 in the brain. The doctor who performed the autopsy was caIIed as a witness and testified emphaticaIIy that death was due to aIcohoIism. This doctor probabIy did not know that I pIus aIcoho1 is onIy a trace; that 2 pIus may come from a few gIasses of beer, Ieaves no condition which can be noticed by others, and means IittIe, if anything, in connection with sudden death. More exaggerated cases which physicians intending
are those in to be heIpfu1
Testimony
American hurnaI
0f
surgery 205
appear as witnesses and testify that death was contributed to by an accident, when in some cases they do not know the cause of death, and in others they are unabIe to describe the accident in question. It hardIy seems possibIe that such cases wouId arise, but the writer has met both cIasses in his own experience. Experts usuaIIy testify upon hypothetica1 questions. The weight of such expert testimony depends of course on the facts set forth in the question, and upon the abiIity of the expert to give convincing evidence. The attorney who frames the hypothetica question must be fair with the doctor, and must incIude a11 materia1 facts, and nothing else, otherwise the attorney, instead of his witness, wiI1 be responsibIe for the faiIure to convince the person caIIed upon to decide the issue. At the same time the doctor who answers a hypothetica question must stick to the facts. He may draw on his own experience, and may take into consideration Iiterature on the subject, but, as frequentIy happens, he must not assume facts which are not stated in the question. In the fina anaIysis, a doctor who gives evidence in a IegaI proceeding must stand or faI1 by his abiIity to convince the judge or referee that his concIusion in the case is correct. Lengthy discussions, coupIed with the use of technica medica terms, detract instead of adding weight to medica testimony. The doctor who is most successfu1 as a witness is the one who can reduce his concIusions to simpIe Ianguage and who can expIain to the judge or referee in such Ianguage the reason why there is, or is not, any connection between the accident and the disease from which the patient is suffering or which has caused his death. An iIIustration of what I have in mind is cases of sudden death from coronary thrombosis or coronary emboIism. The fundamenta1 cause of such deaths is a disease of the artery, but what appeaIs to the trier of facts is the termina1 condition which may be described as mechanica1. The artery may be compared to a smaI1 rubber tube, and the passage becomes
206
American
Journal
of Surgery
Connor-Medical
graduaIIy narrowed by disease. In the fina state the passage becomes so narrow that a bIood cIot forms spontaneousIy. This is a thrombosis which shuts off the suppIy of bIood entireIy, and is the termina1 or mechanica cause of the sudden death. The same thing happens with emboIism except that in addition to the bIood cIot there is some foreign particIe which heIps in its formation. In most cases of sudden death from such coronary diseases, some connection is aIIeged between the empIoyment and the death, usuaIIy a strain or the stress of heavy work. It is a matter of common knowledge that people die when they are at rest from coronary thrombosis or coronary embohsm, and when the terminal and the mechanica cause is expIained, it then becomes easier for the medica witness to expIain how some aIIeged accident contributed to the fina process, or convince the judge or referee that it had no reIationship thereto. In the administration of workmen’s compensation Iaws, attempts are made to connect aImost every form of disease with industria1 accidents. In connection with medica testimony in such cases, I think it important to emphasize again the fact that referees and judges who hear this cIass of cases become quite famiIiar with certain recognized standards of what we term “causa1 relationship” between disease and accident. A doctor who goes beyond the accepted standard in such cases wiI1 have a hard time convincing anyone of his opinion. It is generaIIy accepted that a severe trauma to the chest or any accident resuIting in infection wiI1 activate a dormant tubercuIosis. The opposite opinion on causa1 reIationship appears to be true when the disease is aIready active and Iater responds to treatment. An entirely different opinion prevaiIs in reIation to It is generaIIy accepted that pneumonia. this disease strikes the we11 and the sick in Iike manner, and death or recovery depends on the viruIence of the type and the peculiar Iung resistance or lack thereof in the particular individua1. There appears to be an eIement of foreordination and
Testimony
OCTOBER, ,934
predestination in cases of pneumonia and when a doctor asserts connection between ordinary trauma and ordinary pneumonia, he borrows considerabIe troubIe. Another cIass of cases weII-known in the compensation fieId is where death or disability is due to cancer. Certain cases, such as bone sarcoma at the site of a severe injury and skin cancer with continuity of symptoms from even a sIight injury, are recognized as connected with trauma. In many other cIasses, such as cancer of an interna organ, it is diffrcuIt to convince of causa1 reIationship except where there is direct damage to the cancer itself. These observations are made not as medica facts but rather as a Iay opinion resuIting from medica testimony in a muItitude of cases. They iIIustrate the difficulty confronting the medica witness when he is met with a lay opinion aIready formed. Extreme cases connected with rare diseases aIso arise on occasions. MyeIogenous Ieucemia may be taken as an exampIe, and the mere ipse dixit of a doctor does not go far in estabIishing connection between, for exampIe, a simple fracture and this bIood disease. Extreme cases also appear in ordinary diseases. In a recent hernia case the man had a hernia for a year before he had an automobiIe accident in which he received an injury to the Ieg. A doctor who saw him five months after the accident couId not convince the referee by his mere say so that this Iong existing hernia was aggravated by the accident in question. MedicaI witnesses often make a mistake by not admitting the possibiIities on both sides of the question where reIationship between trauma and disease is invoIved. Such admissions do not detract from their opinion in the particular case. in medica cases, as in Iaw cases, it frequentIy happens that “each case is a Iaw unto itseIf.” As a fina word, and even repeating what has aIready been indicated, the object of the testimony and the thing for the witness always to keep in mind, is to convince the man who must decide the case.