New York Medical Malpractice Trials,
Authoritative Texts
and Cross-Exam of Medical Experts
New York Law Journal, Thursday, June 7, 2007
Ben B. Rubinowitz and Evan Torgan
A powerful tool for cross-examining a medical
expert is confronting him with an authoritative text. Although
passages from medical texts, treatises and articles are normally
excluded as hearsay, they can, in fact, be used in New York
State Court for impeachment purposes by reading aloud a relevant
passage after the expert recognizes the writing as
authoritative. [FN1]
Expert Concession on Authority
The key is to get the expert to concede the
writing is authoritative. Of course, this is a virtual
impossibility with the standard seasoned medical witness who --
either through experience or attorney preparation -- will never
concede a writing is authoritative out of fear of being
confronted with the actual medicine.
Nonetheless the trial attorney should be
prepared with the appropriate passage from the specific relevant
text, just in case the expert makes the concession that it is a
recognized authority. In that case, just as in any impeachment
scenario, the discrepancy must be clear, the issue important and
the attorney correct.
Regardless of whether or not you actually get
to read from them on cross, authoritative writings are very
important for preparation and knowledge. Just as a deposition
can give the cross-examiner a factual and scientific basis for
the cross, medical writings can give you a road map as to what
the witness should concede. Learn from them, digest them, and be
prepared to refer to specific areas of each writing for the rare
instance that you can use them. Since most things in these
writings are probably true, an honest expert will concede points
contained within them, even without specific reference to the
writings themselves. The dishonest witness can be made to look
foolish, even if you never so much as read from the text.
Do not be discouraged by the expert who will
not concede any of the writings you have are authoritative. Even
if the medical expert denies that any of the writings are
authoritative, you can still question the expert on medical
facts contained in the writings.
But first, you have to make an attempt to lay
the foundation that the writing is authoritative. Here is how
not to do it:
Q. Sir, you'd agree with me that 'Cambpell's
Operative Orthopaedics,' Ninth Edition, is an authority on
orthopedics, wouldn't you?
A: No sir, I would not.
Q: Would you consider any text an authority?
A: Nothing is an authority on orthopedics,
sir.
These types of responses may foreclose you
from any further discussion of any writings. But done artfully,
by asking questions that will elicit reasonable responses, you
are well on your way to a successful cross with authoritative
writings.
Here is an example of how to begin laying a
foundation for an authoritative writing:
Q. Sir, you told us of your credentials on
direct examination, didn't you?
Q. You are an associate clinical professor at
New York Medical College, true?
Q. You told us you actually teach medical
students a course in orthopedics, right?
Q. And you teach residents orthopedics as
well, correct?
Q. In a classroom setting?
Q. And a clinical setting as well?
Q. There are certain books the medical
students read as part of the course curriculum in orthopedic
studies, correct?
Q. And books the residents must read as well,
right?
Q. Books you actually have in your private
office, true?
Q. And texts that are kept in the hospital's
library for reference by attending physicians and residents as
well?
Q. And, from time to time, even professors
and physicians have to rely on these texts for information and
consultation, true?
Q. Texts that are updated from time to time,
right?
Q. Texts that are well-known in the
profession?
Q. Texts that are well-recognized in the
profession?
Q. You'd agree with me sir, that one
well-known text in the area of orthopedic surgery is 'Campbell's
Operative Orthopedics,' Ninth Edition, true?
Some physicians are not willing to say a
specific text is authoritative, since medicine is a constantly
changing science and by the time the text comes out, it is
already based on outdated data. Yet, the same physician may
agree that a specific scientific study or article is a
recognized authority because of its recency or relationship in
time to the medical treatment. Therefore, it is just as
important to have scholarly articles available to use for
cross-examination. These articles can be procured from the
Internet and from such medical databases such as med-line and
med-quest.
When Article Is Obvious Authority
The truth of the matter is, however, that
most doctors are prepared to say that the writing you present
them with is not an authority, even though it is clearly a
recognized authority. Once you know the witness will answer this
way with respect to any text or article you confront him with,
you are on the path to discrediting the expert. All it will take
are some well-prepared questions and a pile full of texts,
treatises and articles.
Let us take a standard but hypothetical case
involving a low-speed automobile accident in which your client
sustained a bulging disc in the lumbar spine at L5-S1, with pain
radiating down his left leg into the side of his foot. A typical
defense in this type of soft-tissue case is that your client's
bulging disc was caused by long-standing wear and tear and
degeneration -- not by trauma -- and that regardless, there were
no clinical findings during the adverse doctor's medical
examination. Because the witness is trained to disagree with any
writing you present him with as being authoritative, you should
cross him this way:
Q. Sir, you testified on direct that a
bulging disc is only caused by degeneration over time, true?
Q. And can never be caused by a traumatic
event, right?
Q. Sir, that is absolutely false, isn't it?
Q. As a matter of fact, there is a whole body
of literature stating otherwise, isn't there?
The court: objection sustained.
Q. Sir, you'd agree with me, wouldn't you,
(as you pull the text from your litigation bag) that on the
specific issue of bulging discs typically being caused by
traumatic motor vehicle accidents, 'The Outcome Following
Traumatic Spinal Cord Injury' by Piepmeister, 2002 is an
authority?
A. No, I wouldn't agree.
Q. Well you'd certainly agree with this, that
on the issue of a traumatic event as the cause of a bulging disc
'Rockwell on Orthopedics,' Third Edition is recognized as a
scholarly and authoritative work?
A. No.
Tie in a Specific Fact in Issue
What you do is tie in a specific medical fact
in issue with a particular writing you are trying to prove is
authoritative. In other words, ask the witness about the medical
facts contained in the passage you wish to read before you ask
about the article or book itself. If you get a concession on the
point, you do not need to utilize the treatise to confront the
expert for that area. If he contests the thesis of your
question, your immediate reference to a medical text or article
shows the expert that you are prepared to battle him, and that
you possess the knowledge to challenge him on his turf.
Moreover, because the expert does not want
you to read from the writing, he is in no position to state that
the writing is inconsistent with your question. But do not stop
there. Show the witness' motivation to deny that your writings
are authoritative by going in to a collateral attack:
Q. Sir, this isn't your first time in a
courtroom is it?
Q. As a matter of fact you've testified in
court before, haven't you?
Q. As many as 12 times a year for the last 10
years, true?
Q. That's about 120 times where you have
testified on behalf of lawyers, right?
Q. And correct me if I'm wrong, but you were
financially compensated for all those times you testified,
right?
Q. Doctor, during those 120 or so times you
were in court, you were cross-examined, weren't you?
Q. And you have certainly dealt with
questions about whether bulging discs were degenerative in
nature or traumatically induced, true?
Q. I take it you've consulted the literature
on the subject?
Q. Sir, you know from your courtroom
experience, that if you don't agree that a text is an authority,
I can't cross-examine you on it, don't you?
The Court: objection sustained.
Q. Sir, you've been asked questions about
textbooks before in court haven't you?
Q. Specifically asked whether a book is an
authority on a certain subject?
Q. And you know, don't you, that I can't use
a book to prove you're wrong unless you agree that it is a
recognized authority in the field?
Q. Doctor, there is not a book published in
the whole, wide world that you'd admit is authoritative, because
then I could cross-examine you on it, right?
It should be clear now that the last thing
this medical expert wants is for you to read a passage from any
well-regarded medical text on the subject of his testimony. But
don't give up the attack, since it is now clear that he will not
concede the authoritativeness of any writing with which he is
confronted. Go into another relevant issue in the case:
Q. Sir, you also said that a low-speed impact
could not cause a disc injury, didn't you?
Q. It's your position that my client's
bulging disc was not caused by this accident, true?
Q. And that is because, as you testified on
direct, disc injuries can only occur from high-velocity impacts?
Q. Doctor, you would agree that on the
subject of low-speed impacts causing disc injuries, 'The
Investigation of the Traffic Accident Victim,' Second Edition,
is a recognized authority?
Since you know the expert is going to deny
the book is authoritative, do not ask him if he has heard of the
book before he denies it is an authority. If he denies knowledge
of the book's existence, you may not be permitted by the court
to follow-up with questions regarding its authoritativeness. The
more writings you confront the expert with that he denies are
authoritative, the more evasive and dishonest he appears. More
importantly, by implication, the expert will know that you have
medical science on your side:
Q. Doctor, you also testified on direct
examination that my client's complaints were not consistent with
the injuries he sustained?
Q. By that you meant that his complaints of
pain shooting down his leg into the outer or lateral side of his
left foot were not consistent with a disc injury at L5-S1,
right?
Q. You know that his complaints of pain are
totally consistent with a disc at L5-S1, don't you?
Q. Sir, let's try this one: On the issue of
whether a bulging disc at L5-S1 would radiate down the side of
the leg and into the lateral aspect of the foot, you'd agree
with me that 'Merritt's Textbook of Neurology,' 8th Edition,
would be a recognized authority?
Expert: No Text Is Authority
There may come a time when the expert takes
the position that no text, treatise or article is authoritative
on a subject. If he does so, that may foreclose the foregoing
type of cross-examination on specific writings. But there is
still something you can do to undermine the witness'
credibility. Show how dishonest his position is: get his
admission that there are in fact writings that professors,
medical students, physicians and patients rely on, on a daily
basis, for state of the art medical treatment. Take an
obstetrical malpractice case, for instance:
Q. Doctor, you just said that no writing is
an authority on this subject of whether hypoxia during labor and
delivery causes cerebral palsy, didn't you?
Q. Well, sir, you volunteered to us on direct
that you train doctors how to become neonatologists, true?
Q. You are actually an associate professor of
pediatrics at New York Presbyterian Hospital, aren't you?
Q. You're involved with the training of
medical students as part of your duties, true?
Q. And perhaps, more impressively, you
actually train medical doctors who are already practicing
pediatricians to become neonatologists, right?
Q. In the course of your teaching, you
certainly refer those doctors to the medical literature, don't
you?
Q. In fact, you actually use some medical
textbooks to teach medical students in the classroom, true?
Q. And young medical doctors in the field,
true?
Q. You use them to help treat patients,
right?
Q. Especially, the smallest of patients?
Q. For example, you have your students refer
to 'Avery on Neonatology' to learn the standard of care in
treating newborn babies, true?
Q. And 'Nelson on Pediatrics' as well?
Q. Some texts are certainly good enough to
refer to in order to affect patient care, true?
Q. To help save their lives?
Q. But not good enough for the courtroom,
right?
Using Text, After Text
The use of well-recognized, authoritative
works is critical to effective cross-examination of expert
witnesses. If the witness recognizes a specific writing as
authoritative you can use that writing to impeach him on his
medical knowledge and testimony. If he fails to recognize a
specific writing as authoritative, you can still impeach him
with a well-framed question about the writing's
authoritativeness in relation to a specific issue in your case.
If you deduce that the witness will refuse to admit that any
writing is an authority, you can challenge him by pulling text,
after text, after text out of your litigation bag and getting
him to deny his knowledge of its existence or his recognition of
its authority.
FN1. The rule in Federal Court is far more liberal with regard to admission of authoritative texts: 'To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of a witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits' (Fed. R. Evid. 803[18]).
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Richard Steigman, a
partner at Gair Gair Conason, assisted in the preparation of
this article.
6/7/2007 NYLJ 3, (col. 1)
