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The Doctor as a Witness
Baltimore Number
THE MEDICAL CLINICS OF
NORTH A·MERICA Volume 25
March,1941
Number 2
THE DOCTOR AS A WITNESS EUGENE O'DUNNE ASSOCIATE JUDGE OF THE SUPREME BENCH OF BALTIMORE; LECTURER ON MEDICAL JURISPRUDENCE, JOHNS HOPKINS MEDICAL SCHOOL; LECTURER ON CRIMINAL LAW, UNIVERSITY OF BALTIMORE
WE are living in an age of industrial accidents in which thousands of persons are daily killed or crippled. Workmen's compensation laws, in which Maryland was the pioneer, have swept over the country and exist in some form in perhaps every State of the Union. They are founded on the principle of making industry bear the burden of its human toll. The demand for rapid transit is met by the railroads, electric surface cars and subways, the automobile and the aeroplane. More persons are killed by automobiles than in the world's wars. Nearly every accident resulting in injury or death is the basis for some claim for compensation, and, if not paid, it generally results in the filing of a law suit. Every law suit for personal injury requires medical testimony as to the proximate cause of death or injury or the nature and extent of the injuries. This has vastly multiplied the work of lawyers, increased their incomes, and caused some branch of the medical profession to be engaged in almost every case. The medical profession in all its specialized fields is thus called upon by the law to make its contribution to the cause of justice. Courts are merely the tribunals of organized society for the dispensation of justice according to the law of the land. The medical man as well as the lawyer should always have a 30 3
EUGENE O'DUNNE
clear concept of this fundamental fact, and neither should. allow his zeal to close his eyes to this basic truth. It calls for the same degree of honesty which should obtain in the daily transactions of commercial life-often none too rigidly observed in either field-but it is a reproach to commerce, to the legal and medical professions when the system in its operation falls short of honesty and fair dealing. THE LEGAL SUMMONS
Whether you be medical expert or mere practitioner, when summoned to court, you must obey that summons. It is equivalent to the command of your King, whatever the form of government may be. It has the sanction of sovereignty behind it. It is organized society calling upon you in the . name of the law, much the same as the present draft. Any excuse you may have, you may present after appearing there, but not by means of remote control from the operating room or elsewhere. The summons left with you by the Sheriff is not a mere invitation to have tea with lawyers and the Judge and Jury, in case you have nothing more pleasing on hand. No. "R.S.V.P." is attached thereto, because you have no choice as to acceptance. You are ordered there at the time and place specified, and you must attend, or be in contempt of Court and liable to a fine or imprisonment for failure so to do. Lack of this knowledge has cost some doctors substantial money, loss of reputation, loss of temper, loss of dignity, and afforded much amusement to jurors and spectators. THE JURY SYSTEM
The tribunal established by society in the judicial branch of government for the redress of personal wrongs and the protection of human rights is the Court, and an agency of the courts is the jury system. The jury system has long been a subject of debate. It has been condemned and praised, perhaps beyond its deserts in either instance. It has been wisely used and grossly abused. This accounts for much of the rhetoric that has been expended upon it. Only lately Judge Hanify of the Superior Court of Boston said:
THE DOCTOR AS A WITNESS "I venture to say that a few years ago none of you would have thought that a situation could arise in the world whereby men would be dragged from their homes, tried by a tribunal, and next morning brought before a firing squad. "No jury system is in operation where there is a dictator. So long as you have the jury system, your rights will be protected-your rights of free speech, to worship as you please and to live. What good are those rights if not protected hy the right of trial by jUrY?"
The jury has long been part of the judicial machinery, and not even advanced thought has suggested its complete abolition. There is increased demand in labor circles for its further extension and much outcry against attempts at its restriction. Without holding a brief for either side, it is well that we understand something of what it is, because it is to a jury of "his peers" that the medical man must talk in his attempt to contribute the learning of his profession to the cause of justice. THE JURY PERSONNEL-WOMEN
A jury is composed of twelve honest men selected to apply justice according to the law of the land. They need not be wiser than the twelve Apostles, and some of them may be fishermen. Theoretically they are subject to the draft law as the triers of fact, as men of common experience, citizens, white or colored, male or female-a cross section of the community. Local laws generally regulate their ages. In Maryland, the age requirement is twenty-five to seventy, with many provisions as to exemptions from jury duty based on a theory of public convenience, such as school teachers, Federal and State employees, election officials, the deaf and the blind, but not necessarily the dumb. In practice many of the most intelligent citizens find some way to get excused. In some enlightened States women serve on juries. At this time in Maryland we have not the benefit of their intuition, said to be an attribute of the angelic kingdom. We still rely on evidence, as established by the testimony of human witnesses. Time was, in the Proprietary period of early Maryland history, when this was different. The earliest allwoman jury in the new world sat September 26, 1656, at Charles' Gift,* the oldest building in Tidewater Maryland near Lusby, Calvert County, Maryland. During Oliver Crom-
* Charles'
Gift is now owned by Hulbert Footner, the gifted author.
VOL. 25-20
EUGENE O'DUNNE
well's time it was for a short while the Capitol of Maryland.
It was at Charles' Gift that the Great Seal of Maryland was
lost, and it has not since been found. Here also eleven women sat as jurors to try ]udith Catchpole for the murder of a newborn infant while crossing from England, but they found ]udith not guilty. The finding may have been that she had not given birth to a child. Time does not permit a discussion of whether Maryland's judicial branch of government in now restricting jurors to men lost the crown jewels with the Great Seal, or whether the chivalric spirit of Maryland's early sons wanted to shield women from contact with some of the sordid things of life. With the more complete emancipation of women, including suffrage under the Nineteenth Amendment, they stand side by side with men in commerce and industry, and will some day sit side by side with them in the jury box, as well as on the Bench. Women soon will be flying planes, dropping bombs and shooting rifles with unerring accuracy. The task of the medical man on the witness stand will be more difficult then than now, when he is called upon to persuade a woman (if her intuition should lead her to think otherwise than he does), as to the nature and extent of injuries or what was their proximate cause I Remember always that until you have women jurors, you can expect to have a jury of only average intelligence. Some jurors now may not be able to read or write, and their understanding of the English language may be extremely limited. It will be your function to so impart your scientific information as to find lodgment and understanding in the minds to which it is addressed. PREPARING TO TESTIFY
Well, how can you best serve your country, not in the field or in the clouds, but on the witness stand? Primarily by a thorough training in your profession, which we presume you have had before reaching the witness stand. It requires more than this, at least in many instances. A careful lawyer prepares each case before trial, as an actor studies every part played by every other actor in the drama. Every trial in
THE DOCTOR AS A WITNESS
court is a human drama. The medical man too often makes a farce of it by being wholly out of harmony with the cast. The case may require special preparation at his hands, close scientific reading of the latest medical literature. He must be prepared to stand cross examination by rough and ready trial lawyers, sometimes none too delicate in the handling of witnesses, especially if they are ponderously pompous. In Hans Zinsser's "Biography of R S (As I Remember Him)" he says: "Doctors may be roughly divided into physicians who know a lot but can't do anything, and surgeons who can do a great deal, but don't know very much."
CREATE AN IMPRESSION OF HONESTY
The medical man on the witness stand must be not only honest in fact, but must impress the jury that he is honest; that he is desirous of being helpful as to those subject matters of science about which he is asked; that he is impartial in the contribution of his information, and that he is not trying at all hazards to support the contention of the side which may have called him. This should be done in a manner polite, in a form as simple as the subject permits, in a tone audible, not requiring repetition, and in language capable of being understood by men of average intelligence and without technical training. When Dr. Henry Rowland, then Professor of Physics at Johns Hopkins University, was on the witness stand in the Federal court testifying in his suit against the electric power companies (for $10,000 as his fee for expert services as a physicist), he was cross-examined by the celebrated Joseph H. Choate of New York, who asked him "who is the greatest physicist in America?" Professor Rowland, without a moment's hesitation, replied, "I am." President Gilman, of Johns Hopkins, later asked him why he gave that answer. Professor Rowland smilingly replied that it was a little el).1barrassing, but he was under oath at the time and had no alternative! Always let your answers reflect the truth. To again quote from Dr. Zinsser's book: "The average integrity of the medical profession is perhaps a little higher than the population as a whole, but not high enough for euthanasia."
EUGENE O'DUNNE
TRANSLATE MEDICAL TERMS FOR LAYMEN
The value of a teacher in any school depends upon his ability to impart his information to the class before him. He must get on a level with them. Here is where nearly all medical men hopelessly fail in the courts. Their minds are full of medical jargon. They know only medical terminology. They talk only the language of science. They may correctly express their thought, but it might as well not be expressed. The jury has no idea about what they are talking. The medical expert may be proud of the smoke screen in which he has enveloped the subject, but the jury is looking for the road which continues on the other side of the cloud of smoke. That is the path on which they are honestly trying to grope, to reach a terminal somewhere yonder, but they know not where. Unless you can help direct them to the right destination you are hindering justice, rather than helping it. In Dr. Hugh Young's biography just published appears the word "Dibromoxymercuryfluorescein" (mercurochrome) . There are perhaps a few of the simple men who sit on the jury who might not know exactly what this means, should you use that term in your testimony on the witness stand. It might be slightly confusing even to some judges I If that is the only word known to you which accurately describes what you have in mind, perhaps you could break it down into some of its constituent parts and feed it to the jury on the installment plan-and thereby make yourself more useful as a witness, even if you appear to be less scientific. Simplicity is an element of greatness. If the patient has inflammation of the fluid sac and bony structure of the left collar bone and shoulder joint, why tell our simple honest jurors that he has "traumatic arthrosteitis of the left acromioclavicular joint with inflammation of the left subacromial bursa," as we lately heard from the witness stand? Vladimir Horowitz, the celebrated pianist, had to cancel his November 13, 1940 concert and postpone it until January 15, 1941, based on the testimony of a physician that he was convalescing from traumatic tenosynovitis of the flexor digitorum sublimis and profundis muscles at the metacarpophalangeal joint. Horowitz had a badly injured finger I
THE DOCTOR AS A WITNESS
If the lawyer asks you what was the cause of death in a given case, therefore, do not ask him does he mean "the proxima causa mortis?" And if for the sake of peace the lawyer says, "Yes, I want to know the cause of death," do not tell the jury that the victim "died of edema of the brain following cerebral thrombosis or possible embolism following arteriosclerosis combined with the effect of gangrenous cholecystitis ," as did one of your profession who nearly got a juror in trouble with the court when he exclaimed, "Well, I'll be damned!" The Judge remarked that ordinarily he would not tolerate language of .that kind from jurors in his Court, but the language of the doctor was equally offensive, and added that the juror had so aptly expressed the thought that was running in the mind of the Court that he believed the provocation sufficient to completely obliterate the offense. Cryptic Explanation of Concussion.-In a case recently tried before me some of the Hopkins' experts seemed to have some difficulty as to just how to make a jury understand what constituted "concussion of the brain," and why they thought the patient had sustained this character of injury. Their explanations were by no means satisfying. Later, a little Irish doctor from South Baltimore took the stand. He was the family doctor for the plaintiff who was suing for the injuries sustained. The bland lawyer for the insurance company started to cross-examine him, and, in a patronizing way, said, "Doctor, perhaps you can explain what you medical men mean by 'concussion of the brain'?" The little redhaired doctor looked at the jury of farmers and said, "Did you ever take an egg and shake it violently until the yoke and the white were scrambled together? Well, that would be concussion of the brain. If the egg is fresh and healthy, the yellow might later settle down, and the white separate. If it is aged, or if the hen has sat on it too long, it might remain perman.ently cloudy. That I would liken to concussion of the brain." The jury brought in a verdict of substantial damages for the plaintiff. The jury knew something about eggs! POLITENESS AND DIPLOMACY
Should the High Sheriff leave you a summons at your office or home some evening and you be scheduled for some im-
3 IO
EUGENE O'DUNNE
portant operation at the hospital in the morning, then by the use of a little politeness and diplomacy you generally can call either the lawyer, or if necessary the Judge, and make arrangements for having your testimony taken at an hour not to conflict with your operation, and still be in time for its use at the trial. This is not to be accomplished by insolence and insubordination, either in correspondence or phone messages, as I have known medical men to resort to, but by· politeness and diplomacy. Dr. William F. Bowers, in his book "Charm and Personality," illustrates what I mean in the story he tells of the plumber who was sent to a lady's apartment to make some repairs at an hour when it was thought she was downtown. On opening the door he found her submerged in the bath tub. He immediately withdrew with the exclamation, "Excuse me, Sir!" Dr. Bowers says politeness was illustrated in the "excuse me," and rare diplomacy in his emphasis on the word "Sir." COMPENSATION FOR EXPERT TESTIMONY
In various States of the Union the laws differ. In some jurisdictions expert testimony can be forced from medical men the same as from ordinary witnesses and without compensation for it. In other jurisdictions the result of special study and long training is regarded much the same as private property, not to be taken, even in the public interest, without due compensation. Where this rule prevails, a medical man on the witness stand may decline to answer a question calling for expert testimony, on the ground that no financial arrangement has been made with him for compensating him for that character of information. He may waive his right and consent to answer expert questions without compensation, if he cares to do so. Contingent Compensation Improper.-No medical expert should have his compensation dependent upon the result of the case. This is known as a "contingent fee," dependent upon success of the litigant. Such an arrangement has a tendency to warp the judgment of the witness who has a personal and pecuniary interest in the verdict. It lays him
THE DOCTOR AS A WITNESS
open to the impeachment of his integrity, oftentimes justly so. Compensation for expert testimony is a legitimate source of revenue to the medical expert. Care must be had not to allow employment to bias your judgment. Medical men have brought much odium upon their profession by practically selling themselves to the side which employs them. Sometimes their bias is conscientious, but that they are biased is all too apparent. The "battle of the experts" is no uncommon sight in courts where the fight is for large stakes. The Thaw trial was such a case. Appeal was made to Dr. Adolf Meyer, head of Phipps Clinic at Hopkins. He consented to examine Thaw and to testify in New York as to his opinion on the question of Thaw's sanity, but stipulated that he would not accept compensation there for from either side. Few reach that altitudinal record. It is not necessary to gratify legal or medical ethics that one should do so, but such record flights are seldom forgotten. CONCLUSIONS
When summoned, come to Court and register your attendance. If you desire to claim exemption from such draft as an "expert," with whom no financial arrangements have been made, make your plea to the Court when asked for expert testimony. If disallowed, give your testimony. You are also at liberty to waive your claim for exemption if you are so disposed. No compensation to the medical witness, expert or otherwise, should be contingent on the result of the case. Avoid bias as well as the appearance of it. Make conscientious preparation for the efficient contribution of your technical information to the cause of justice. Give it in such form as to be readily grasped by lay jurymen, in language understandable by them. Be polite and diplomatic in your relations with court and counsel, irrespective of how they seem to treat you. . Thus, and thus only, can you be of genuine value to the administration of justice.
THE MEDICAL CLINICS OF
NORTH A·MERICA Volume 25
March,1941
Number 2
THE DOCTOR AS A WITNESS EUGENE O'DUNNE ASSOCIATE JUDGE OF THE SUPREME BENCH OF BALTIMORE; LECTURER ON MEDICAL JURISPRUDENCE, JOHNS HOPKINS MEDICAL SCHOOL; LECTURER ON CRIMINAL LAW, UNIVERSITY OF BALTIMORE
WE are living in an age of industrial accidents in which thousands of persons are daily killed or crippled. Workmen's compensation laws, in which Maryland was the pioneer, have swept over the country and exist in some form in perhaps every State of the Union. They are founded on the principle of making industry bear the burden of its human toll. The demand for rapid transit is met by the railroads, electric surface cars and subways, the automobile and the aeroplane. More persons are killed by automobiles than in the world's wars. Nearly every accident resulting in injury or death is the basis for some claim for compensation, and, if not paid, it generally results in the filing of a law suit. Every law suit for personal injury requires medical testimony as to the proximate cause of death or injury or the nature and extent of the injuries. This has vastly multiplied the work of lawyers, increased their incomes, and caused some branch of the medical profession to be engaged in almost every case. The medical profession in all its specialized fields is thus called upon by the law to make its contribution to the cause of justice. Courts are merely the tribunals of organized society for the dispensation of justice according to the law of the land. The medical man as well as the lawyer should always have a 30 3
EUGENE O'DUNNE
clear concept of this fundamental fact, and neither should. allow his zeal to close his eyes to this basic truth. It calls for the same degree of honesty which should obtain in the daily transactions of commercial life-often none too rigidly observed in either field-but it is a reproach to commerce, to the legal and medical professions when the system in its operation falls short of honesty and fair dealing. THE LEGAL SUMMONS
Whether you be medical expert or mere practitioner, when summoned to court, you must obey that summons. It is equivalent to the command of your King, whatever the form of government may be. It has the sanction of sovereignty behind it. It is organized society calling upon you in the . name of the law, much the same as the present draft. Any excuse you may have, you may present after appearing there, but not by means of remote control from the operating room or elsewhere. The summons left with you by the Sheriff is not a mere invitation to have tea with lawyers and the Judge and Jury, in case you have nothing more pleasing on hand. No. "R.S.V.P." is attached thereto, because you have no choice as to acceptance. You are ordered there at the time and place specified, and you must attend, or be in contempt of Court and liable to a fine or imprisonment for failure so to do. Lack of this knowledge has cost some doctors substantial money, loss of reputation, loss of temper, loss of dignity, and afforded much amusement to jurors and spectators. THE JURY SYSTEM
The tribunal established by society in the judicial branch of government for the redress of personal wrongs and the protection of human rights is the Court, and an agency of the courts is the jury system. The jury system has long been a subject of debate. It has been condemned and praised, perhaps beyond its deserts in either instance. It has been wisely used and grossly abused. This accounts for much of the rhetoric that has been expended upon it. Only lately Judge Hanify of the Superior Court of Boston said:
THE DOCTOR AS A WITNESS "I venture to say that a few years ago none of you would have thought that a situation could arise in the world whereby men would be dragged from their homes, tried by a tribunal, and next morning brought before a firing squad. "No jury system is in operation where there is a dictator. So long as you have the jury system, your rights will be protected-your rights of free speech, to worship as you please and to live. What good are those rights if not protected hy the right of trial by jUrY?"
The jury has long been part of the judicial machinery, and not even advanced thought has suggested its complete abolition. There is increased demand in labor circles for its further extension and much outcry against attempts at its restriction. Without holding a brief for either side, it is well that we understand something of what it is, because it is to a jury of "his peers" that the medical man must talk in his attempt to contribute the learning of his profession to the cause of justice. THE JURY PERSONNEL-WOMEN
A jury is composed of twelve honest men selected to apply justice according to the law of the land. They need not be wiser than the twelve Apostles, and some of them may be fishermen. Theoretically they are subject to the draft law as the triers of fact, as men of common experience, citizens, white or colored, male or female-a cross section of the community. Local laws generally regulate their ages. In Maryland, the age requirement is twenty-five to seventy, with many provisions as to exemptions from jury duty based on a theory of public convenience, such as school teachers, Federal and State employees, election officials, the deaf and the blind, but not necessarily the dumb. In practice many of the most intelligent citizens find some way to get excused. In some enlightened States women serve on juries. At this time in Maryland we have not the benefit of their intuition, said to be an attribute of the angelic kingdom. We still rely on evidence, as established by the testimony of human witnesses. Time was, in the Proprietary period of early Maryland history, when this was different. The earliest allwoman jury in the new world sat September 26, 1656, at Charles' Gift,* the oldest building in Tidewater Maryland near Lusby, Calvert County, Maryland. During Oliver Crom-
* Charles'
Gift is now owned by Hulbert Footner, the gifted author.
VOL. 25-20
EUGENE O'DUNNE
well's time it was for a short while the Capitol of Maryland.
It was at Charles' Gift that the Great Seal of Maryland was
lost, and it has not since been found. Here also eleven women sat as jurors to try ]udith Catchpole for the murder of a newborn infant while crossing from England, but they found ]udith not guilty. The finding may have been that she had not given birth to a child. Time does not permit a discussion of whether Maryland's judicial branch of government in now restricting jurors to men lost the crown jewels with the Great Seal, or whether the chivalric spirit of Maryland's early sons wanted to shield women from contact with some of the sordid things of life. With the more complete emancipation of women, including suffrage under the Nineteenth Amendment, they stand side by side with men in commerce and industry, and will some day sit side by side with them in the jury box, as well as on the Bench. Women soon will be flying planes, dropping bombs and shooting rifles with unerring accuracy. The task of the medical man on the witness stand will be more difficult then than now, when he is called upon to persuade a woman (if her intuition should lead her to think otherwise than he does), as to the nature and extent of injuries or what was their proximate cause I Remember always that until you have women jurors, you can expect to have a jury of only average intelligence. Some jurors now may not be able to read or write, and their understanding of the English language may be extremely limited. It will be your function to so impart your scientific information as to find lodgment and understanding in the minds to which it is addressed. PREPARING TO TESTIFY
Well, how can you best serve your country, not in the field or in the clouds, but on the witness stand? Primarily by a thorough training in your profession, which we presume you have had before reaching the witness stand. It requires more than this, at least in many instances. A careful lawyer prepares each case before trial, as an actor studies every part played by every other actor in the drama. Every trial in
THE DOCTOR AS A WITNESS
court is a human drama. The medical man too often makes a farce of it by being wholly out of harmony with the cast. The case may require special preparation at his hands, close scientific reading of the latest medical literature. He must be prepared to stand cross examination by rough and ready trial lawyers, sometimes none too delicate in the handling of witnesses, especially if they are ponderously pompous. In Hans Zinsser's "Biography of R S (As I Remember Him)" he says: "Doctors may be roughly divided into physicians who know a lot but can't do anything, and surgeons who can do a great deal, but don't know very much."
CREATE AN IMPRESSION OF HONESTY
The medical man on the witness stand must be not only honest in fact, but must impress the jury that he is honest; that he is desirous of being helpful as to those subject matters of science about which he is asked; that he is impartial in the contribution of his information, and that he is not trying at all hazards to support the contention of the side which may have called him. This should be done in a manner polite, in a form as simple as the subject permits, in a tone audible, not requiring repetition, and in language capable of being understood by men of average intelligence and without technical training. When Dr. Henry Rowland, then Professor of Physics at Johns Hopkins University, was on the witness stand in the Federal court testifying in his suit against the electric power companies (for $10,000 as his fee for expert services as a physicist), he was cross-examined by the celebrated Joseph H. Choate of New York, who asked him "who is the greatest physicist in America?" Professor Rowland, without a moment's hesitation, replied, "I am." President Gilman, of Johns Hopkins, later asked him why he gave that answer. Professor Rowland smilingly replied that it was a little el).1barrassing, but he was under oath at the time and had no alternative! Always let your answers reflect the truth. To again quote from Dr. Zinsser's book: "The average integrity of the medical profession is perhaps a little higher than the population as a whole, but not high enough for euthanasia."
EUGENE O'DUNNE
TRANSLATE MEDICAL TERMS FOR LAYMEN
The value of a teacher in any school depends upon his ability to impart his information to the class before him. He must get on a level with them. Here is where nearly all medical men hopelessly fail in the courts. Their minds are full of medical jargon. They know only medical terminology. They talk only the language of science. They may correctly express their thought, but it might as well not be expressed. The jury has no idea about what they are talking. The medical expert may be proud of the smoke screen in which he has enveloped the subject, but the jury is looking for the road which continues on the other side of the cloud of smoke. That is the path on which they are honestly trying to grope, to reach a terminal somewhere yonder, but they know not where. Unless you can help direct them to the right destination you are hindering justice, rather than helping it. In Dr. Hugh Young's biography just published appears the word "Dibromoxymercuryfluorescein" (mercurochrome) . There are perhaps a few of the simple men who sit on the jury who might not know exactly what this means, should you use that term in your testimony on the witness stand. It might be slightly confusing even to some judges I If that is the only word known to you which accurately describes what you have in mind, perhaps you could break it down into some of its constituent parts and feed it to the jury on the installment plan-and thereby make yourself more useful as a witness, even if you appear to be less scientific. Simplicity is an element of greatness. If the patient has inflammation of the fluid sac and bony structure of the left collar bone and shoulder joint, why tell our simple honest jurors that he has "traumatic arthrosteitis of the left acromioclavicular joint with inflammation of the left subacromial bursa," as we lately heard from the witness stand? Vladimir Horowitz, the celebrated pianist, had to cancel his November 13, 1940 concert and postpone it until January 15, 1941, based on the testimony of a physician that he was convalescing from traumatic tenosynovitis of the flexor digitorum sublimis and profundis muscles at the metacarpophalangeal joint. Horowitz had a badly injured finger I
THE DOCTOR AS A WITNESS
If the lawyer asks you what was the cause of death in a given case, therefore, do not ask him does he mean "the proxima causa mortis?" And if for the sake of peace the lawyer says, "Yes, I want to know the cause of death," do not tell the jury that the victim "died of edema of the brain following cerebral thrombosis or possible embolism following arteriosclerosis combined with the effect of gangrenous cholecystitis ," as did one of your profession who nearly got a juror in trouble with the court when he exclaimed, "Well, I'll be damned!" The Judge remarked that ordinarily he would not tolerate language of .that kind from jurors in his Court, but the language of the doctor was equally offensive, and added that the juror had so aptly expressed the thought that was running in the mind of the Court that he believed the provocation sufficient to completely obliterate the offense. Cryptic Explanation of Concussion.-In a case recently tried before me some of the Hopkins' experts seemed to have some difficulty as to just how to make a jury understand what constituted "concussion of the brain," and why they thought the patient had sustained this character of injury. Their explanations were by no means satisfying. Later, a little Irish doctor from South Baltimore took the stand. He was the family doctor for the plaintiff who was suing for the injuries sustained. The bland lawyer for the insurance company started to cross-examine him, and, in a patronizing way, said, "Doctor, perhaps you can explain what you medical men mean by 'concussion of the brain'?" The little redhaired doctor looked at the jury of farmers and said, "Did you ever take an egg and shake it violently until the yoke and the white were scrambled together? Well, that would be concussion of the brain. If the egg is fresh and healthy, the yellow might later settle down, and the white separate. If it is aged, or if the hen has sat on it too long, it might remain perman.ently cloudy. That I would liken to concussion of the brain." The jury brought in a verdict of substantial damages for the plaintiff. The jury knew something about eggs! POLITENESS AND DIPLOMACY
Should the High Sheriff leave you a summons at your office or home some evening and you be scheduled for some im-
3 IO
EUGENE O'DUNNE
portant operation at the hospital in the morning, then by the use of a little politeness and diplomacy you generally can call either the lawyer, or if necessary the Judge, and make arrangements for having your testimony taken at an hour not to conflict with your operation, and still be in time for its use at the trial. This is not to be accomplished by insolence and insubordination, either in correspondence or phone messages, as I have known medical men to resort to, but by· politeness and diplomacy. Dr. William F. Bowers, in his book "Charm and Personality," illustrates what I mean in the story he tells of the plumber who was sent to a lady's apartment to make some repairs at an hour when it was thought she was downtown. On opening the door he found her submerged in the bath tub. He immediately withdrew with the exclamation, "Excuse me, Sir!" Dr. Bowers says politeness was illustrated in the "excuse me," and rare diplomacy in his emphasis on the word "Sir." COMPENSATION FOR EXPERT TESTIMONY
In various States of the Union the laws differ. In some jurisdictions expert testimony can be forced from medical men the same as from ordinary witnesses and without compensation for it. In other jurisdictions the result of special study and long training is regarded much the same as private property, not to be taken, even in the public interest, without due compensation. Where this rule prevails, a medical man on the witness stand may decline to answer a question calling for expert testimony, on the ground that no financial arrangement has been made with him for compensating him for that character of information. He may waive his right and consent to answer expert questions without compensation, if he cares to do so. Contingent Compensation Improper.-No medical expert should have his compensation dependent upon the result of the case. This is known as a "contingent fee," dependent upon success of the litigant. Such an arrangement has a tendency to warp the judgment of the witness who has a personal and pecuniary interest in the verdict. It lays him
THE DOCTOR AS A WITNESS
open to the impeachment of his integrity, oftentimes justly so. Compensation for expert testimony is a legitimate source of revenue to the medical expert. Care must be had not to allow employment to bias your judgment. Medical men have brought much odium upon their profession by practically selling themselves to the side which employs them. Sometimes their bias is conscientious, but that they are biased is all too apparent. The "battle of the experts" is no uncommon sight in courts where the fight is for large stakes. The Thaw trial was such a case. Appeal was made to Dr. Adolf Meyer, head of Phipps Clinic at Hopkins. He consented to examine Thaw and to testify in New York as to his opinion on the question of Thaw's sanity, but stipulated that he would not accept compensation there for from either side. Few reach that altitudinal record. It is not necessary to gratify legal or medical ethics that one should do so, but such record flights are seldom forgotten. CONCLUSIONS
When summoned, come to Court and register your attendance. If you desire to claim exemption from such draft as an "expert," with whom no financial arrangements have been made, make your plea to the Court when asked for expert testimony. If disallowed, give your testimony. You are also at liberty to waive your claim for exemption if you are so disposed. No compensation to the medical witness, expert or otherwise, should be contingent on the result of the case. Avoid bias as well as the appearance of it. Make conscientious preparation for the efficient contribution of your technical information to the cause of justice. Give it in such form as to be readily grasped by lay jurymen, in language understandable by them. Be polite and diplomatic in your relations with court and counsel, irrespective of how they seem to treat you. . Thus, and thus only, can you be of genuine value to the administration of justice.