Ординатура / Офтальмология / Английские материалы / Risk Prevention in Ophthalmology_Kraushar_2008
.pdfChapter 4
The Trial Judge
David S. Cramp
The U.S. Supreme Court has said in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), that trial judges have a gatekeeper role to play in determining the qualification of expert witnesses and whether the opinions of the experts are sufficient to send to a jury. Thus, in virtually every case in which a proximate cause between the event and damage to the plaintiff is alleged, a hearing would be required before the trial judge to determine three things:
1.Whether expert testimony is required
2.The qualifications of the expert
3.Whether the opinion is scientifically reliable
It is the third question that is most vexing to trial judges. There are three means by which the proponent of expert testimony of scientific results can prove the reliability of the testimony:
1.The testimony of knowledgeable experts
2.Authoritative scientific literature
3.Pervasive judicial decisions that acknowledge such general acceptance of expert testimony
The third circumstance almost never occurs in our jurisprudence, nor is there any requirement that an expert witness’s theory has achieved general acceptance within the scientific community. Rather, the test is whether the opinion is based on scientific principles and methodologies of the type reasonably relied on by experts in the scientific field.
In most jurisdictions, the rule in most cases is that if a substantial minority of the applicable scientific community accepts a particular theory, it is admissible in evidence. To illustrate how far this theory may lead, the New Jersey Supreme Court recently held that the differential diagnosis methodology was reliable, and testimony about the methodology would be received by a jury.
In reviewing the gatekeeper role as set forth in Daubert, lawyers will have to be particularly sensitive to the varying interpretation by the state’s Supreme Courts. For example, in New Jersey, Rule 702 governs the admissibility of expert testimony, and New Jersey has not yet fully adopted the decision in Daubert. These technicalities aside, the test (or standard) of Frye v. United States, 293 F. 1013
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(D.C. Cir. 1923) is almost unanimously accepted as the three-part standard in demonstrating reliability. These three methods have survived since 1923. General acceptance in the scientific community is not an end in itself. It is reliability that must be ensured. Consequently, unanimous belief or universal acceptance is not required, because there can always be some detractors to any scientific theory.
The function of a trial judge is complicated in a field such as ophthalmology because it is complex, permitting a number of treatment modalities (often implicating surgery) that are all generally supportable. It is the task of the trial judge to determine whether an opinion of an expert commands sufficient respect in the field of ophthalmology that it should go to a jury with all of the other relevant evidence. It is particularly vexing for trial judges because, generally, they do not understand enough about ophthalmology to recognize that an opinion by an expert does not attract sufficient respect among practitioners. How would it be expected that a trial judge would have familiarity with the technical details of a field as wide-ranging as ophthalmology? How would a judge know about anterior segment surgery, cataract surgery, corneas, glaucoma, neuroophthalmology, ocular oncology, oculoplastics, refractive surgery, retina and vitreous, immunology, or even the basics of these so-called subspecialties? In each, there are technical requirements that would overwhelm the most avid student of scientific requirements—an attribute that most trial judges do not possess. Consequently, a hearing on the issues is of crucial importance. It is essential that a trial judge be supplied with enough information to make an informed judgment. To argue that an opinion by an expert requires no less than inclusion in a peer-reviewed medical journal may not carry the day if the peerreviewed material is weak or not on point or if the literature (any literature) contains an opinion that is strong enough but has not yet appeared in a peer-reviewed journal. The trial judge’s view is always subject to the prospect that an appellate court may disagree that the trial judge’s findings of fact are sufficient. The gatekeeper role is not one to which trial judges are accustomed. Junk science is a difficult concept that presents enormous problems for the trial judge trying to make a determination that is fair for everyone. Most judges simply do not know enough about the subject matter to make a reasonable determination.
In a further example, in State v. Cavallo, 88 N.J. 508 (1982), the New Jersey Supreme Court stated, “The Frye test recognizes that most judges are experts in few, if any, fields of scientific endeavor … [and that] judges are not well-suited to determine the inherent reliability of expert evidence …” (Id. at 521). However, the Court said that judges “can decide whether the proffered evidence has gained general acceptance” in the scientific community (Ibid). Yet, the stakes are high. Trial judges instinctively know that scientific evidence may be viewed as conclusive by jurors. In United States v. Addison, 498 F.2d 741 (D.C. Cir 1994), the Court (after applying the Frye test) said: “Since scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen, the ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential” (Id. at 744).
Because ophthalmologists perform operations on eyes and are generally classified as surgeons, it becomes more than essential at a hearing on the subject of
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expert qualifications and proximate cause that all relevant information be brought forward to assist the trial judge in performing the “gatekeeper” function. The function is there. Use the opportunity.
What may seem odd for a judge to say, and may seem idiosyncratic, is that, in my experience, jurors simply do not like expert witnesses. Jurors recognize that expert witnesses are paid, and jurors look hard at other areas, such as appearances, evidence of prevarication, and other incidents to make determinations. To some extent, jurors decide cases on facts that cannot be anticipated and on factors that cannot be foretold. Often, a show of arrogance by the defendant will be enough. I was once involved in a case in which the defendant appeared to display some arrogance about his being a defendant in the case. My Court Clerk hated him; the jury, as it turned out, hated him. My staff hated him. I would not have agreed. Yet, the jury decided the case against him. In one case, jurors waited and waited for the defense expert to testify. He arrived very late, and the defense attorney asked why he was late. He said, “I have to make a living.” The jury did not listen to a word he said and decided the case against the defendant. I am convinced that the jury held the expert’s remark against the defendant.
I have tried many medical malpractice cases and am convinced that if a physician does his best to treat a patient properly, using his best skill and training, that doctor will prevail. It does take an enormous effort in court to be polite, to not betray any impatience, and to act vitally interested throughout the trial, but it is well worth it. I liked it when a physician defendant (openly) helped his attorney. The best cases I was involved in from the point of view of the defendant were those in which the defendant was respectful, helpful, and then explained in detail the theories and methodologies that he or she utilized in treating the defendant. In most states, the charge to the jury is very favorable to the defendant and can easily carry the day. However, there cannot be any slip ups such as a lackadaisically prepared defense. The most effective defense is when a physician can take the stand, effectively educate a jury, and steer the jury to the physician’s point of view. This, in my opinion, is worth all the expert witnesses who can be called.
Here is one last thought. In a hospital setting, there is a tendency to let the resident complete the discharge summary. Often, the resident’s knowledge is incomplete. Why any physician would ever allow a resident to complete the discharge summary is incomprehensible to me. I guess that the practice has grown popular because of time constraints. However, beware, because a jury may believe that a physician who does not have time to do his own discharge summary does not deserve much time of the jury.
Remember, when you get six people together as a jury, they become the most difficult people. They are impatient, cranky, and believe that their time is to be protected at all costs. They are often wrong, but they are the system. Learning to play the system is crucial. An intelligent defendant, actively involved in his or her case, is of the utmost importance.
Chapter 5
The Medical Expert
Edward L. Raab
Introduction
“Doctor, I need an expert witness. Will you help?”
Note that this is a request, not a command, unlike a subpoena for jury duty. If you react with instant aversion, then say “no.” However, a positive response probably will lead to an interesting professional experience.
Most physicians are unfamiliar with legal procedure. We are accustomed to being “in charge” in our usual environment, but the legal arena is unknown territory. This chapter, based on my own participation, presents an overview of the role of the medical expert and how it is fulfilled, particularly in malpractice litigation.
Why Are Experts Needed?
The medical malpractice plaintiff must prove that the defendant physician’s acts or failures to act did not follow the applicable standard of care and that these were the direct and substantial cause of whatever harm the plaintiff has suffered. The jury (occasionally the judge) is responsible for determining whether this has occurred. Some conclusions can come from one’s own education and life experience. However, nonphysician jurors cannot call upon their own backgrounds to resolve questions involving medical care standards. An expert is required to inform and educate the jury through special knowledge and experience about the unfamiliar subject matter of the dispute. The unique feature of expert testimony is that it consists of opinions on matters in the case and that the jury will employ these opinions prominently in its findings.
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Who May Be a Medical Expert?
The judge is the gatekeeper who determines whether the proffered expert is legally competent to serve as such after hearing the physician’s responses to questions about his or her education, residency, and possible fellowship training. In actual practice, the requirements usually are easily met by the holding of the pertinent professional licenses and specialty board or equivalent certification.
A distinction should be made between competence to provide expert opinions and the weight that the jury will give to such testimony. Relevant experience in the field and publications are persuasive indicators of expertise. The court may not require practice in the ophthalmic subspecialty involved in the dispute, but a request to serve as an expert in an unfamiliar field is an invitation to courtroom disaster for both the expert and the case. I have seen this occur when a general ophthalmologist testifying on behalf of a plaintiff claimed it was malpractice not to have made strabismus measurements in nine positions, ignoring every other detail of a thorough analysis that led to an intelligent decision on treatment. The defense expert made short work of this textbook argument, which constituted the plaintiff’s entire case. In this instance, “will you help?” would have been better interpreted as “should I help?”
Basis for Expert Opinion
The special qualifications (education, training, and experience) of the medical expert allow the expression of opinion, but the court will allow the jury to consider only opinions that are appropriately reached. Reliability of expert testimony depends on whether it is based on the kind of information a member of that discipline would ordinarily use to form a professional judgment and whether the foundation for that information is generally accepted within that professional discipline. Perhaps unduly, courts regard peer-reviewed publication as a prominent hallmark of validity. In any event, “junk science” derived from unproven, unaccepted methodology is disfavored, and you can be certain that the opposing attorney will explore this question of your sources.
The Process
In deciding to serve, the physician undertakes certain obligations to the engaging attorney, who is fulfilling his or her own legal and ethical professional responsibilities of vigorous advocacy for the client. Doctors typically disparage attorneys for not comporting themselves “above the fray,” but this is an unfortunate misunderstanding of the lawyer’s role. If a potential expert will not actively assist the attorney in advocating for the client irrespective of whether plaintiff or defendant, including testifying if necessary, the assignment should be declined.
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The expert will be asked to review the case file, typically consisting of the pleadings (why and for what relief the plaintiff is suing and the answer to these allegations by the defendant), medical and hospital records, various documents from which each party learns the merits of the other’s case (“discovery”), depositions (examinations before trial of the parties and often of other individuals with personal knowledge of the circumstances), reports of the opponent’s experts and perhaps their depositions, and reports of economic experts on the extent of the plaintiff’s financial harm. Often some photocopies are illegible, and replacements should be requested.
To protect the credibility of his testimony, the expert should require inspection of all available medical documents in the case. I have personally observed the extreme embarrassment of a witness whose opinion was given with no knowledge of convincing contrary information in a portion of the medical record with which he was never supplied.
I find it helpful to do an initial general reading in order to learn what each side says about the case. This should be followed by a more detailed line-by-line analysis, particularly of the medical and associated records, which can consume much time. The first goal should be to address the most important issues. The expert’s analysis may cast matters in a different order of priority than that of the attorney, whose strategy will depend on knowledge of the medical facts and on how to have them presented in the most favorable light possible.
The objectives are to point out the strengths as well as the weaknesses of the case and to identify any good argument for the other side. The attorney benefits most from being able to see, through the expert’s assistance, the case from both opposing perspectives. As part of a thorough attempt to assist, the expert should offer to read the day-by-day transcript of the trial, if one later takes place, to point out additional opportunities or problems.
When the medical review indicates an unwinnable case, should the expert recommend settlement? My practice is to avoid direct suggestions on legal strategy. The advice can be conveyed indirectly by offering an estimate of the likelihood of prevailing based on the medical assessment. One way or another, the expert should deliver the message despite the probability of the loss of a witness fee.
The element of surprise is not a part of litigation, which explains the discovery process and the requirement for exchange of information between the opposing parties. However, for valid strategic reasons, such as a decision that expert testimony on one or more issues will not be introduced or that a different expertise is required, a formal written report should not be prepared unless requested. If made, it should include a listing of every document reviewed, and it is proper to include a statement reserving the right to amend the opinion on the basis of later-received information.
Testifying
Juries are inevitably influenced in one direction or another by a comparison, the so-called battle of the experts. For this reason, an attorney chooses an expert not only on the basis of the required qualifications but also for whether the expert will project
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an impression of knowledge and confidence. These latter qualities are assessed by the opposing lawyer as well in evaluating the expert’s effect on his client’s case.
Trial procedure calls for the expert’s willingness to be flexible about dates and times for appearing. Delays because of revision of the trial schedule, juror problems, the intervention of other court business preempting the judge’s time, unexpectedly prolonged testimony of other witnesses, and other factors should be expected and accommodated, as these are generally outside of the attorney’s control. The compensation agreement should reflect a reasonable figure for time spent that includes such delays.
The expert should appear punctually for the deposition or trial and treat the adversaries courteously at all times. Dress should be conservative. Depositions are most often conducted in a setting other than a courtroom, typically in the office of the attorney for one of the parties. This does not diminish the formal nature of the exercise. At depositions while temporarily off the record, confine conversation to “small talk.” During the trial, be extremely careful to avoid even informal interaction with the jurors or the attorneys for other parties, even extending to the courthouse elevators.
Courtrooms generally are arranged so that the witness stand is just to one side of the judge’s bench, facing the “well,” which is where the parties’ attorneys have their tables. The jury box typically is along the side wall nearest the witness stand. Although attorneys ask the questions, testimony should be directed at the jury, in keeping with the expert’s role of educator and informer. Directly facing the jurors irrespective of the location of the questioning lawyer accomplishes this objective. Be prepared also for questions from the judge, who has the discretion to assist in clarifying the jury’s understanding of the issues. If your testimony involves a demonstration requiring you to step off the stand, ask the judge’s permission to do so.
Answer only the questions asked; additional information can be inadvertently damaging. When you do not know an answer, this should be stated, but when applicable, point out that you do not know because nobody does. Pause before replying to the opponent’s question; this gives an opportunity for objection by the attorney engaging you if the question is improper.
There should be no discussion of the case with uninvolved persons, colleagues who also may actually become witnesses themselves, and above all with the party for whom the expert is testifying. This last is because of the importance of avoiding even the appearance of collusion. The expert must be able to state under oath that no such collaboration has occurred. This does not preclude casual greeting or temporary intermingling provided that no substantive discussion of the case occurs.
“Minefields” for the Expert
The appropriate goal of the opposing attorney during cross-examination is to discredit the testimony of the expert. Do not be intimidated by the questioner’s possibly brusque manner. Remember that it is not personal; on occasion my services
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have been solicited by a lawyer by whom I have been vigorously cross-examined in a prior lawsuit.
One attempt at discrediting is to have the expert admit to no personal publications on the subject of the case. I counter this by indicating the extent of my handson clinical care experience and any unpublished lectures and pointing out that other subject areas in my field have taken priority for my literary efforts and have resulted in numerous publications.
An additional point of attack is to ask how often the expert has testified in medical malpractice cases and whether it is always for the same side. The opposing attorney hopes to convince the jury that you are a “hired gun” and a biased one at that. Your answer must be truthful; to the extent that it presents a credibility problem, this was or should have been evaluated by the attorney who requested your participation.
It is common to inquire about on what literature sources the expert relied. The opposing attorney hopes to raise the inference that the expert has been less than diligent and not up to date on the necessary information. An effective reply, if truthful, is that the expert did read not in order to form an opinion but to test the reasonableness of that opinion against those of knowledgeable colleagues concerning similar facts.
Another minefield is whether a certain published work (usually professing an opinion other than the expert’s own) is considered an authority. This depends entirely on the definition of “authority.” If the witness believes that any opinion from that source ought to be followed without question or hesitation, the point must be conceded, but it is far more likely that an expert chosen for his or her qualifications can reply that while the opinions detailed in the suggested authority are worth considering, they do not necessarily apply to this particular case and in any event must be filtered through and reconciled with the expert’s own knowledge and experience.
You might be asked whether your testimony is based on personal examination of the patient. This actually is irrelevant, because, as noted earlier, experts may rely in forming their opinion on the kinds of information customarily relied on by similarly situated practitioners of the discipline. The medical and associated records clearly fall under that criterion. Your best reply is a simple “no”; if necessary, the attorney who engaged you is probably able to elicit the same response from the opposing expert.
An issue whose importance is usually overemphasized is whether and how much the expert is to be compensated for testifying. The correct characterization is that compensation is for time lost from income-producing activities, not for the testimony itself. This explanation will be entirely truthful if the hourly rate charged is reasonably related to that of the expert’s usual charges for medically related efforts.
More Advice
Do not underestimate the abilities of the attorneys on both sides of the case, many of whom have specialized in this area of the law for a long period. Their lawyering skills and preparation for trial are likely to be considerable, and they are functioning
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in their own arena, to which the physician is essentially a stranger. Most important, the physician expert should understand that while the attorneys may seek to intimidate as part of trial strategy (risky in many instances), they are merely adversaries, not enemies.
Learn the outcome of the case, and take the opportunity to hear the jury’s evaluation of your testimony, as may have been revealed in the customary postverdict interview. This and the attorney’s own evaluation of your efforts are very instructive for the further development of your interest and effectiveness.