- Email: [email protected]
The impartial medical testimony project
The
Impartial
Medical
HOWARD REID CRAIG,
materia1 which I propose to lay before you has been presented previousIg before meetings and conferences of Bar Associations and judges, but to my knowledge this is the first time that Judge Peck or I have described the ImpartiaI Medical Testimony Project to a pureIy medical group and, spec&alIy, physicians engaged in the study and treatment of trauma. Judge Peck has described the conditions which Ied to the initiation of the plan, how it came to be, how it operates and its record, together with his own reflections regarding its effectiveness as seen through the eyes of a sitting Justice and a court administrator. I propose to discuss the plan solely from the standpoint of the medica profession as seen through the eyes of one who practiced and taught medicine for twentv-five years and who for twelve years has occupied a medica administrative position. Inasmuch as one of the vital factors in the success of such a plan is the method of selection and the character of the members of the expert panels, I wiIl devote some time to this important phase of the project. After informal discussions with various segments of the medica and IegaI professions, it was deemed wise to set up a joint conference committee made up of the senior officers of The New York Academy of Medicine and the IMedical Society of the County of New York. The Iatter is the IocaI component of the American Medical Association. The New York Academy of Medicine is an independent, endowed institution devoted to lay and medical education, to pubIic health and to the maintenance of a pubIic medical Iibrary which with the exception of the National MedicaI Library in Washington is the largest medica Iibrary in the Western hemisphere. This joint committee set up for itself, within the framework of the project as planned, four
T
HE
Testimony
M.D.,
Project
New York, New York
very general objectives: (I) the reconciliation of confhcting medical testimony; (2) the general improvement of medica testimony; (3) the attainment of more equabIe settlements through better medica testimony; (4) the acceleration, with the help of the best medical testimony, of fair settlements. The membership of this joint committee, elected officers of the two organizations, represented a wide variet) of institutions and interests and was therefore not open to the criticism of overselectiveness in designating members of the expert panels. At the outset the committee agreed that habitual medica witnesses, that is, physicians appearing constantly in court as expert witnesses for one adversary or another, should be excluded from the paneIs. Further, it was thought that physicians closely connected with organizations continually involved in personal injury litigation shouId not be included in the panel rosters. Conversely, it was thought that in order to give these paneIs weight and authority as well as a position of neutrahty free from any bias, their members should be drawn from physicians of professoria1 rank in the medical colleges or equivalent standing in accredited hospitals. In consultation with the Justices of the Supreme Court the approximate proportions of medical speciaIists in different categories were set. The committee then studied the list of eligible names. It might be we11 to point out that the committee had a large pool from which to draw. There are approximately 17,000 physicians in New York City, incIuding 7,000 in the borough of Manhattan, that is, New York County. There are 168 accredited municipal or voluntary hospitals, excluding the proprietary hospitals and the seven accredited approved medica schools. Invitations were sent out to approximately IOO physicians to serve on the panels. The letter of invitation read as foIlows:
c raig “A Joint Conference Committee of The Nc\\ York Academy of Medicine and the Medical Society of the County of New York has undcrtaken the co-sponsorship of an experimental plan to accelerate and improve the settlement of pcrsonai Iiability cases appearing before the Supreme Court of the State of New York, First District. Additiona sponsorship is provided by the Supreme Court, the Association of the Bar, and the New York County Lawyers Association. “The rationale and substance of the plan is as follows: it has been found possibIe to settle many of these cases in pre-tria1 conferences, but conflicting medical testimony has often confused the issues, not only in the minds of the conference judges, but also in those of tria1 judges and juries. It is proposed that there be set up several panels of physicians engaged in various fieIds of medical practice, men of the highest professional competence who arc neither habitual witnesses nor associated with agencies involved in such cases. These physicians are only to be calIed upon when there is reasonabIe doubt as to medica testimony for the pIaintiff or defendant and they wil1 be called for by the judges in reguIar rotation. When calIed upon, the judge wiI1 refer the patient to the physician’s office by appointment. The physician will examine the patient and render a report to the judge, copies of the report to bc made avaiIabIe to the contending parties. In other words, the physician is acting as a friend to the court. It is anticipated that a great majority of these cases may be settled at this point. In a Iimited number, however, they may go on to trial; in which case the panel physician may have to appear, again as an authority and friend of the court without regard for plaintiff or defendant. “Because of the professidna1 standing of the panel physicians, no set scheduIe of remuneration for these medica services is to be set up. It is expected that each man wiI1 render his regular, reasonabIe bil1 for his services, reaIizing that there is a distinct eIement of public service in his cooperation. After approva1 by the judge, these biIIs wil1 be paid by an offIce set up for the purpose in the Supreme Court buiIding. “This pIan is an earnest effort on the part of the bench, bar and medicine to accelerate the disposition of these IiabiIity casts, mete out better justice and wipe out the intolerable medico-legal confusion which has characterized our courts for too many years. With bench, bar and medicine minded to cooperate, this can be done. “I have been authorized by the Joint Conference Committee of the Academy and the County Medical Society to invite you to serve as one of the physicians on the pane1 dealing with -. The Committee earnestIy hopes that under the
conditions set forth abo\:e, you can see your way clear to hcIp the medica profession perform this important public service. “WoulcI you be good enough to communicate with me as early as possible by letter or tcIephone here at the Academy, giving me your reaction to this proposal. ”
The response to these Ietters was most gratifying. In order to show the attitude of the physicians toward this plan, may I offer a few excerpts from Ietters accepting positions on the paneIs : “Although I disIike very much to court cases, I fee1 that it is a duty improve the handling of Iiability Supreme Court, and I accept your serve on the pane1 for orthopedic that purpose.”
be invoIved in to attempt to cases for the invitation to specialists for
“I have seldom received a letter which pleases me more than yours of December 30th. For 20 years, I have been trying my best to improve the character of medica testimony in IiabiIity cases. The plan which your letter suggests has my unqualified approval, and I am delighted to serve on the pane1 of physicians. I fee1 that if these problems can be solved without recourse to court trial, much shouId be gained.” “Although I disIike very much the wrangle of court cases, I fee1 that it is my duty as a public service to accept the invitation to serve as one of the physicians on the pane1 of genito-urinary surgery.” “I was very much interested in your Ietter and fee1 this is a very important step in an attempt to get more rea1 scientilic information and more justice in these cases. Many of them certainly are or have been cases of IegaIized bIackmai1. WhiIc I am terribIy busy and do not like to take on more obIigations than I am able to fuIfiI1 satisfactorily, I consider it a great honor and duty to heIp in any program of this kind. I shaI1 be gIad to serve on this pane1 and wil1 do a11 I can to heIp in the aims of this pIan.” “I disIike intenseIy these contacts with our IegaI confreres, but it seems to me that our private feeIings, from time to time, have to be subordinated to the pubIic good. I shaI1, therefore, accept the appointment and promise to heIp you as much as I can.” 676
ImpartiaI
MedicaI
Testimony
place. At the bottom of the Ietter which is sent to you confirming the appointment agreed upon over the teIephone, there appears a statement that counsel in the case have been instructed to submit to you their own medical reports, etc., by a certain date. This date is usuaIIy a few days before the time of the examination. This is intended to gi1.c you time to go over the background matcria1 in advance of the appearance of the ‘patient.’ OccasionaIIy the attorneys have difftcuIty in providing this material in time, in spite of the instructions of this offIce. It is suggested that if these records are not received by you by the day before the examination date, you call this office and an attempt wiI1 be made to correct the situation. With regard to the hospita1 charts, x-rays, test reports, etc., taken in the hospita1, we have been able to establish a procedure whereby the attorney subpoenas the hospital’s records for delivery directIy to your office. You keep the records in your possession until you have no further use for them. Then, if you caI1 the record room of the hospital invoIvcd, they wiI1 have a messenger call for the record. “4. In view of the fact that in many cases the names of the doctors who have treated or examined the Iitigant are confidential, it is advisable, whcrcvcr possibIe, to avoid mentioning the names of the doctors whose reports have been submitted to you by counsc1. This appIies particuIarIy to the xvritten report made by you, a copy of which is supplied to a11 parties in the cast. If you find it unavoidable to omit these names in your \vrittt.n report, please consult this offer before your report is typed. “5. You arc authorized to order x-rays, EEKs, EEGs, or other essentia1 tests required to assist you in your examination. These shouId be made at the same reasonabIe rates and on the same basis as you use to set your fees in the cases referred to you by this offIce. It would be convenient for these charges made by outside persons to be billed to you directIy and for you to include that charge as an item in your biI1 to us. This system is suggested, provided it doesn’t unduIy interfere with your normal procedure. If it does, do it your way. “6. Regarding your biTIs, one copy of the bill, sent with your reports, is sufficient. If your bill has not been paid within three months after its date, it would be appreciated if you would have your secretary caI1 this offIce. It may possibly have been overIooked and this reminder would be weIcomed. “7. The pane1 specialist should retain in his liIe any x-ray plates, EEGs, EEKs and other laboratory reports ordered by him to assist in formuIating his opinion. (This does not incIude origina hospita1 records.) In the first instance, the
“In reply to your Ietter of December zgth, it will give me great pIeasure to participate in your program to improve the settlement of persona1 liability cases. I have made it a ruIe not to take Iitigation cases, but I beIieve that the purposes of this experiment arc so worthwhiIe it should receive a11 the encouragement possible.” OnIy three individuals declined, and they gave personal reasons for their inabihty to serve. The genera1 tenor of the affirmative repIies was to the effect that aIthough the physicians disliked intenseIy and avoided, if possible, appearance in court, a sense of public duty and pubIic service prompted their acceptance of the responsibiIity. The distribution of the speciaIists by categories may be of interest: genera1 surgery, seven; pIastic surgery, four; ophthalmology-, three; dermatology, three; neurosurgery, ten; psychiatry, eight; roentgenology, ten; obstetrics and gynecology, five; genitourinary surgery, four; orthopedics, fifteen; internal medicine, five; cardiovascular disease, five; tuberculosis, four; neurology, six; neuropsychiatry, one; otoIaryngoIogy, four; endocrinology, two; malignancy and trauma, one. Thus we have a total of ninety-seven paneIists to which were Iater added twenty-eight physicians from the borough of Bronx, chosen by that County \ledicaI Society, thus making a tota of 123 pane1 members on caI1 for service. Judge Peck has described the mechanics of caIIing for the services of the paneIists. However, I believe it worth whiIe to read the directive and information which is sent to each physician pane1 member when a case is referred to him: INFORMATION
FOR
PANEL
Project
SPECIALISTS
You are in compIete control of the conduct of the examination. Any attorneys who may be in attendance are there for your convenience and to assist you, if you wish them to do so. You may, if you desire, excIude them from the room in which you conduct the actua1 physical examination of the litigant. “2. This office is ready to accommodate itself to your convenience as to time. If at any time you arc too busy to handIe an examination for us, please do not hesitate to say so and we’11 pass you by on the rotation of the panel. “3. It is the intention of this oflice to see that you have a11 the avaiIabIe medica background materia1 on each case before the examination takes “I.
677
Craig court is mainIy interested in the panel specialist’s interpretation and concIusions on thcsc x-ray plates, etc. Secondly, in the future, if the panel speciaIist should be called upon to testify in court, he will have readily accessible, in his office, the complete file in the case. “8. We have a deadline to meet in each case, the date upon which the Court has arranged the conference following your report. Howevcl-, wherever possible, we will forego our deadline for your convenience, at your,request for more time. PIease call this office and if possible, advise when we can expect your report. “9. All communications regarding your availability for testifying in a case in which you have made a report should be had through this oflice, rather than directly with the attorneys, We are in a better position to make the most convenient arrangements as to your time. If you are requested by any attorney to testify in any of the cases handIed by this office, please advise the attorney that this office wil1 have to handle all communications. . . . ”
encephalography. ParticularIy is this true in cases of head injuries and fractures. To those of us in medicine who have been involved in this project, there is no doubt that the plan has materially increased the possibility of linding true medical facts in litigated cases; that it has a prophylactic effect on the character and presentation of medical testimony whether in pre-tria1 conference or in court, and that it has pointed the way to better diagnosis in cases of trauma. The system has been eminently successful in the stage of pre-trial conference, heIping to stop litigation at that point. When it comes to court actions, it is possible that some minor modifications may be necessary, but these will not detract from the soundness of the basic principle of unbiased, neutral medica consuhation to the court. In order to ascertain the reactions of panel physicians who had appeared in court, a questionnaire was distributed. On the whole the responses were decidedly favorable to the plan. I will quote just two comments from these replies. Comment A: “From my experience in the courts, I am convinced that the doctor shouId give testimony, not for one side or the other, but with the same degree of impartiaIity that the judge is supposed to show. You ma?, therefore, count on my enthusiastic support m trying to reform the old system.” Comment B: “The all-important essentia1 for the success of the pIan is the proper seIection of the specialist. He must have not only the requisite technicaI and chnical knowledge, but also a judicial type of mind. As a rule, the older and more experienced physicians are more likely to meet up with these standards.” How apphcable is this system of impartial medica testimony to communities other than New York with its heterogeneous popuIation and its heterogeneous medica and legal groups? Granting that the need-in terms of court congestion, of confusing medica testimony, of questionable judgments and high court costs-is a real one, there is no good reason why this concept of impartial medica testimony should not be practicable in most commumtres, possibIy with some modifications to meet local conditions. However, appended to that statement are three provisos. First, the judiciary must recognize such a need and have the desire to correct it. Second, the medical profession
I have dealt in detail with the selection of the panel members and the responsibilities of the physicians involved because, aIthough the over-all principle on which the project was based may be sound, its success and effectiveness depend to a great degree first on the character, competence and reputation of the panel physicians, and second, on meticulous attention to detail in the administration of the system. I have mindfully omitted reference to the responsibility of judges and Iawyers in effecting the success of the plan inasmuch as I am discussing those aspects which touch on the medical profession. The basic function of the panel physician as a recognized expert is to review the case in its entirety in the light of his own knowledge, training and experience, and having done so to transmit his opinion to the court. It is of interest that of IOO cases reviewed by the medical consultant to the study there were twenty-four cases in which by the experts’ opinions there were errors in x-ray technique or interpretation. It is of further interest that of the same IOO cases there were twenty-seven cases in which a diagnosis of fracture of the skull or cerebra1 concussion or both was made but no spina puncture was carried out to confirm or deny the diagnosis. These two examples aIone call for more expert x-ray diagnosis and greater use of lumbar punctures and electro678
ImpartiaI
MedicaI
must see in the plan an opportunity for rea1 public service. Finally, the Iegal profession must see in the plan a step toward fairer judgments, settlements more quickly achieved and a contribution to the pubIic good. Distilled to its real essence, the plan involves an inter-
Testimony
Project
professional cooperation which when once achieved-and this experiment has proved that it can be achieved-wiII redound to the credit of the law and medicine, and increase pubIic trust in the administration of justice.
679
Impartial
Medical
HOWARD REID CRAIG,
materia1 which I propose to lay before you has been presented previousIg before meetings and conferences of Bar Associations and judges, but to my knowledge this is the first time that Judge Peck or I have described the ImpartiaI Medical Testimony Project to a pureIy medical group and, spec&alIy, physicians engaged in the study and treatment of trauma. Judge Peck has described the conditions which Ied to the initiation of the plan, how it came to be, how it operates and its record, together with his own reflections regarding its effectiveness as seen through the eyes of a sitting Justice and a court administrator. I propose to discuss the plan solely from the standpoint of the medica profession as seen through the eyes of one who practiced and taught medicine for twentv-five years and who for twelve years has occupied a medica administrative position. Inasmuch as one of the vital factors in the success of such a plan is the method of selection and the character of the members of the expert panels, I wiIl devote some time to this important phase of the project. After informal discussions with various segments of the medica and IegaI professions, it was deemed wise to set up a joint conference committee made up of the senior officers of The New York Academy of Medicine and the IMedical Society of the County of New York. The Iatter is the IocaI component of the American Medical Association. The New York Academy of Medicine is an independent, endowed institution devoted to lay and medical education, to pubIic health and to the maintenance of a pubIic medical Iibrary which with the exception of the National MedicaI Library in Washington is the largest medica Iibrary in the Western hemisphere. This joint committee set up for itself, within the framework of the project as planned, four
T
HE
Testimony
M.D.,
Project
New York, New York
very general objectives: (I) the reconciliation of confhcting medical testimony; (2) the general improvement of medica testimony; (3) the attainment of more equabIe settlements through better medica testimony; (4) the acceleration, with the help of the best medical testimony, of fair settlements. The membership of this joint committee, elected officers of the two organizations, represented a wide variet) of institutions and interests and was therefore not open to the criticism of overselectiveness in designating members of the expert panels. At the outset the committee agreed that habitual medica witnesses, that is, physicians appearing constantly in court as expert witnesses for one adversary or another, should be excluded from the paneIs. Further, it was thought that physicians closely connected with organizations continually involved in personal injury litigation shouId not be included in the panel rosters. Conversely, it was thought that in order to give these paneIs weight and authority as well as a position of neutrahty free from any bias, their members should be drawn from physicians of professoria1 rank in the medical colleges or equivalent standing in accredited hospitals. In consultation with the Justices of the Supreme Court the approximate proportions of medical speciaIists in different categories were set. The committee then studied the list of eligible names. It might be we11 to point out that the committee had a large pool from which to draw. There are approximately 17,000 physicians in New York City, incIuding 7,000 in the borough of Manhattan, that is, New York County. There are 168 accredited municipal or voluntary hospitals, excluding the proprietary hospitals and the seven accredited approved medica schools. Invitations were sent out to approximately IOO physicians to serve on the panels. The letter of invitation read as foIlows:
c raig “A Joint Conference Committee of The Nc\\ York Academy of Medicine and the Medical Society of the County of New York has undcrtaken the co-sponsorship of an experimental plan to accelerate and improve the settlement of pcrsonai Iiability cases appearing before the Supreme Court of the State of New York, First District. Additiona sponsorship is provided by the Supreme Court, the Association of the Bar, and the New York County Lawyers Association. “The rationale and substance of the plan is as follows: it has been found possibIe to settle many of these cases in pre-tria1 conferences, but conflicting medical testimony has often confused the issues, not only in the minds of the conference judges, but also in those of tria1 judges and juries. It is proposed that there be set up several panels of physicians engaged in various fieIds of medical practice, men of the highest professional competence who arc neither habitual witnesses nor associated with agencies involved in such cases. These physicians are only to be calIed upon when there is reasonabIe doubt as to medica testimony for the pIaintiff or defendant and they wil1 be called for by the judges in reguIar rotation. When calIed upon, the judge wiI1 refer the patient to the physician’s office by appointment. The physician will examine the patient and render a report to the judge, copies of the report to bc made avaiIabIe to the contending parties. In other words, the physician is acting as a friend to the court. It is anticipated that a great majority of these cases may be settled at this point. In a Iimited number, however, they may go on to trial; in which case the panel physician may have to appear, again as an authority and friend of the court without regard for plaintiff or defendant. “Because of the professidna1 standing of the panel physicians, no set scheduIe of remuneration for these medica services is to be set up. It is expected that each man wiI1 render his regular, reasonabIe bil1 for his services, reaIizing that there is a distinct eIement of public service in his cooperation. After approva1 by the judge, these biIIs wil1 be paid by an offIce set up for the purpose in the Supreme Court buiIding. “This pIan is an earnest effort on the part of the bench, bar and medicine to accelerate the disposition of these IiabiIity casts, mete out better justice and wipe out the intolerable medico-legal confusion which has characterized our courts for too many years. With bench, bar and medicine minded to cooperate, this can be done. “I have been authorized by the Joint Conference Committee of the Academy and the County Medical Society to invite you to serve as one of the physicians on the pane1 dealing with -. The Committee earnestIy hopes that under the
conditions set forth abo\:e, you can see your way clear to hcIp the medica profession perform this important public service. “WoulcI you be good enough to communicate with me as early as possible by letter or tcIephone here at the Academy, giving me your reaction to this proposal. ”
The response to these Ietters was most gratifying. In order to show the attitude of the physicians toward this plan, may I offer a few excerpts from Ietters accepting positions on the paneIs : “Although I disIike very much to court cases, I fee1 that it is a duty improve the handling of Iiability Supreme Court, and I accept your serve on the pane1 for orthopedic that purpose.”
be invoIved in to attempt to cases for the invitation to specialists for
“I have seldom received a letter which pleases me more than yours of December 30th. For 20 years, I have been trying my best to improve the character of medica testimony in IiabiIity cases. The plan which your letter suggests has my unqualified approval, and I am delighted to serve on the pane1 of physicians. I fee1 that if these problems can be solved without recourse to court trial, much shouId be gained.” “Although I disIike very much the wrangle of court cases, I fee1 that it is my duty as a public service to accept the invitation to serve as one of the physicians on the pane1 of genito-urinary surgery.” “I was very much interested in your Ietter and fee1 this is a very important step in an attempt to get more rea1 scientilic information and more justice in these cases. Many of them certainly are or have been cases of IegaIized bIackmai1. WhiIc I am terribIy busy and do not like to take on more obIigations than I am able to fuIfiI1 satisfactorily, I consider it a great honor and duty to heIp in any program of this kind. I shaI1 be gIad to serve on this pane1 and wil1 do a11 I can to heIp in the aims of this pIan.” “I disIike intenseIy these contacts with our IegaI confreres, but it seems to me that our private feeIings, from time to time, have to be subordinated to the pubIic good. I shaI1, therefore, accept the appointment and promise to heIp you as much as I can.” 676
ImpartiaI
MedicaI
Testimony
place. At the bottom of the Ietter which is sent to you confirming the appointment agreed upon over the teIephone, there appears a statement that counsel in the case have been instructed to submit to you their own medical reports, etc., by a certain date. This date is usuaIIy a few days before the time of the examination. This is intended to gi1.c you time to go over the background matcria1 in advance of the appearance of the ‘patient.’ OccasionaIIy the attorneys have difftcuIty in providing this material in time, in spite of the instructions of this offIce. It is suggested that if these records are not received by you by the day before the examination date, you call this office and an attempt wiI1 be made to correct the situation. With regard to the hospita1 charts, x-rays, test reports, etc., taken in the hospita1, we have been able to establish a procedure whereby the attorney subpoenas the hospital’s records for delivery directIy to your office. You keep the records in your possession until you have no further use for them. Then, if you caI1 the record room of the hospital invoIvcd, they wiI1 have a messenger call for the record. “4. In view of the fact that in many cases the names of the doctors who have treated or examined the Iitigant are confidential, it is advisable, whcrcvcr possibIe, to avoid mentioning the names of the doctors whose reports have been submitted to you by counsc1. This appIies particuIarIy to the xvritten report made by you, a copy of which is supplied to a11 parties in the cast. If you find it unavoidable to omit these names in your \vrittt.n report, please consult this offer before your report is typed. “5. You arc authorized to order x-rays, EEKs, EEGs, or other essentia1 tests required to assist you in your examination. These shouId be made at the same reasonabIe rates and on the same basis as you use to set your fees in the cases referred to you by this offIce. It would be convenient for these charges made by outside persons to be billed to you directIy and for you to include that charge as an item in your biI1 to us. This system is suggested, provided it doesn’t unduIy interfere with your normal procedure. If it does, do it your way. “6. Regarding your biTIs, one copy of the bill, sent with your reports, is sufficient. If your bill has not been paid within three months after its date, it would be appreciated if you would have your secretary caI1 this offIce. It may possibly have been overIooked and this reminder would be weIcomed. “7. The pane1 specialist should retain in his liIe any x-ray plates, EEGs, EEKs and other laboratory reports ordered by him to assist in formuIating his opinion. (This does not incIude origina hospita1 records.) In the first instance, the
“In reply to your Ietter of December zgth, it will give me great pIeasure to participate in your program to improve the settlement of persona1 liability cases. I have made it a ruIe not to take Iitigation cases, but I beIieve that the purposes of this experiment arc so worthwhiIe it should receive a11 the encouragement possible.” OnIy three individuals declined, and they gave personal reasons for their inabihty to serve. The genera1 tenor of the affirmative repIies was to the effect that aIthough the physicians disliked intenseIy and avoided, if possible, appearance in court, a sense of public duty and pubIic service prompted their acceptance of the responsibiIity. The distribution of the speciaIists by categories may be of interest: genera1 surgery, seven; pIastic surgery, four; ophthalmology-, three; dermatology, three; neurosurgery, ten; psychiatry, eight; roentgenology, ten; obstetrics and gynecology, five; genitourinary surgery, four; orthopedics, fifteen; internal medicine, five; cardiovascular disease, five; tuberculosis, four; neurology, six; neuropsychiatry, one; otoIaryngoIogy, four; endocrinology, two; malignancy and trauma, one. Thus we have a total of ninety-seven paneIists to which were Iater added twenty-eight physicians from the borough of Bronx, chosen by that County \ledicaI Society, thus making a tota of 123 pane1 members on caI1 for service. Judge Peck has described the mechanics of caIIing for the services of the paneIists. However, I believe it worth whiIe to read the directive and information which is sent to each physician pane1 member when a case is referred to him: INFORMATION
FOR
PANEL
Project
SPECIALISTS
You are in compIete control of the conduct of the examination. Any attorneys who may be in attendance are there for your convenience and to assist you, if you wish them to do so. You may, if you desire, excIude them from the room in which you conduct the actua1 physical examination of the litigant. “2. This office is ready to accommodate itself to your convenience as to time. If at any time you arc too busy to handIe an examination for us, please do not hesitate to say so and we’11 pass you by on the rotation of the panel. “3. It is the intention of this oflice to see that you have a11 the avaiIabIe medica background materia1 on each case before the examination takes “I.
677
Craig court is mainIy interested in the panel specialist’s interpretation and concIusions on thcsc x-ray plates, etc. Secondly, in the future, if the panel speciaIist should be called upon to testify in court, he will have readily accessible, in his office, the complete file in the case. “8. We have a deadline to meet in each case, the date upon which the Court has arranged the conference following your report. Howevcl-, wherever possible, we will forego our deadline for your convenience, at your,request for more time. PIease call this office and if possible, advise when we can expect your report. “9. All communications regarding your availability for testifying in a case in which you have made a report should be had through this oflice, rather than directly with the attorneys, We are in a better position to make the most convenient arrangements as to your time. If you are requested by any attorney to testify in any of the cases handIed by this office, please advise the attorney that this office wil1 have to handle all communications. . . . ”
encephalography. ParticularIy is this true in cases of head injuries and fractures. To those of us in medicine who have been involved in this project, there is no doubt that the plan has materially increased the possibility of linding true medical facts in litigated cases; that it has a prophylactic effect on the character and presentation of medical testimony whether in pre-tria1 conference or in court, and that it has pointed the way to better diagnosis in cases of trauma. The system has been eminently successful in the stage of pre-trial conference, heIping to stop litigation at that point. When it comes to court actions, it is possible that some minor modifications may be necessary, but these will not detract from the soundness of the basic principle of unbiased, neutral medica consuhation to the court. In order to ascertain the reactions of panel physicians who had appeared in court, a questionnaire was distributed. On the whole the responses were decidedly favorable to the plan. I will quote just two comments from these replies. Comment A: “From my experience in the courts, I am convinced that the doctor shouId give testimony, not for one side or the other, but with the same degree of impartiaIity that the judge is supposed to show. You ma?, therefore, count on my enthusiastic support m trying to reform the old system.” Comment B: “The all-important essentia1 for the success of the pIan is the proper seIection of the specialist. He must have not only the requisite technicaI and chnical knowledge, but also a judicial type of mind. As a rule, the older and more experienced physicians are more likely to meet up with these standards.” How apphcable is this system of impartial medica testimony to communities other than New York with its heterogeneous popuIation and its heterogeneous medica and legal groups? Granting that the need-in terms of court congestion, of confusing medica testimony, of questionable judgments and high court costs-is a real one, there is no good reason why this concept of impartial medica testimony should not be practicable in most commumtres, possibIy with some modifications to meet local conditions. However, appended to that statement are three provisos. First, the judiciary must recognize such a need and have the desire to correct it. Second, the medical profession
I have dealt in detail with the selection of the panel members and the responsibilities of the physicians involved because, aIthough the over-all principle on which the project was based may be sound, its success and effectiveness depend to a great degree first on the character, competence and reputation of the panel physicians, and second, on meticulous attention to detail in the administration of the system. I have mindfully omitted reference to the responsibility of judges and Iawyers in effecting the success of the plan inasmuch as I am discussing those aspects which touch on the medical profession. The basic function of the panel physician as a recognized expert is to review the case in its entirety in the light of his own knowledge, training and experience, and having done so to transmit his opinion to the court. It is of interest that of IOO cases reviewed by the medical consultant to the study there were twenty-four cases in which by the experts’ opinions there were errors in x-ray technique or interpretation. It is of further interest that of the same IOO cases there were twenty-seven cases in which a diagnosis of fracture of the skull or cerebra1 concussion or both was made but no spina puncture was carried out to confirm or deny the diagnosis. These two examples aIone call for more expert x-ray diagnosis and greater use of lumbar punctures and electro678
ImpartiaI
MedicaI
must see in the plan an opportunity for rea1 public service. Finally, the Iegal profession must see in the plan a step toward fairer judgments, settlements more quickly achieved and a contribution to the pubIic good. Distilled to its real essence, the plan involves an inter-
Testimony
Project
professional cooperation which when once achieved-and this experiment has proved that it can be achieved-wiII redound to the credit of the law and medicine, and increase pubIic trust in the administration of justice.
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