The Need for Medical and Forensic Scientific Expert Testimony
Cyril H. Wecht, M.D., J.D.
Numerous studies and surveys undertaken by various organizations over the past several decades have consistently indicated that 70 to 80 percent of all civil litigation involves medical and scientific evidence and testimony to some extent. Keeping in mind the fact that there are hundreds of thousands of new personal injury actions filed each year in the United States, one immediately realizes the full extent and scope of the involvement of physicians and forensic scientists in the civil legal processes. On the criminal side of the ledger, all homicides, of course, require medical testimony; and many other criminal actions, such as rape, child abuse, and illicit drug cases almost always require medical and forensic scientific evidence, also.
Not surprisingly, the overwhelming majority of physicians are extremely critical and resentful of the fact that civil and criminal trials involving medical and scientific expert testimony frequently include the presentation of diametrically opposed analyses and conclusions, resulting in embarrassment and ridicule for the entire scientific community, as well as their own personal discomfiture. It is understandable that individuals not trained in law would feel this way, for they do not understand the basic and traditional principles and rationale of the adversary approach inherent in the English common law system. As a matter of fact, even many people who are familiar with this historical background are also critical of the adversary approach insofar as medical expert testimony is concerned, even though they may intellectually appreciate and accept the need for this kind of disputatious approach in the resolution of non-criminal controversies insofar as non-medical issues are concerned.
In most of continental Europe, Asia, and Africa, excluding those countries like the USA that were heir to the English common law system, the adversary system is little known and infrequently used. For the most part, in those countries there are court-appointed medical and other scientific experts who present their findings before and during trial, and who are seldom, if ever, challenged by other medical experts. The American adversary system is anathema to attorneys and jurists, as well as physicians and forensic scientists in those countries, who feel that the truth is often suppressed, manipulated, or deliberately misstated, giving way to courtroom histrionics and dramatic tactics.
It may be arguable that we have such a legal system in our country. However, we have reached the point in our society where it simply is not possible for a physician to arrogantly and dismissively state that he does not care about the needs of attorneys and has no interest or desire to participate in the legal processes. If an individual is to practice medicine, then there is always the potential likelihood of becoming involved in some kind of legal matter, either directly or indirectly. Therefore, it behooves every physician to have some knowledge of how to comport himself in a courtroom, how to function as a medical witness, and how to prepare himself so that he can best serve the legitimate aims and objectives of the legal actions in which he finds himself involved.
In order for a physician to be a good expert witness, it is necessary for him to be aware of the evidence involved in the case. He should always see to it that he has thoroughly reviewed all evidence related in his particular field of expertise. Insofar as other areas of medicine may be relevant in a particular case, he needs to familiarize himself with the evaluations, conclusions, and opinions that have been proffered by other expert physicians and scientists with different areas of specialization. Coming into a courtroom unprepared is not only dangerous and foolish for the medical witness, but also presents a potential catastrophic situation for the attorney and client whom he has been called upon to serve in some capacity.
It is long overdue for every United States medical school and forensic scientific academic curriculum to include a meaningful, substantive, mandatory course in legal medicine. Optimally, such a course should be taught by an M.D.-J.D., or someone who has extensive experience dealing with the preparation and presentation of medical and forensic scientific testimony in civil and criminal courts.