Medical Evidence in a Court of Law

LT. COL. MONTAGUE: Consultant in the McGillMontreal General Hospital Research Institute and in The Department of Metabolism and Toxicology of the Montreal General Hospital, and Honorary Consultant in Internal Medicine at the Montreal Children's Hospital, and recently retired Associate Professor of Medicine and Lecturer in Medical Jurisprudence and Toxicology at McGill University-today's guest speaker, Dr. L. M. Rabinowitch, will speak to us from a background of experience and achievement that has carried him to the summit of his profession.

I. M. Rabinowitch, O.B.E., D.Sc., M.D., C.M., F.R.C.P.(C.), F.A.C.P., F.I.Biol.(E.), and Member of the American Association for the Advancement of Science, is not a native of Canada, having been born in Philadelphia, Pa., but it was our good luck that he came here in his youth; received most of his education in Toronto and at McGill University in Montreal and, after World War I service in the R.C.A.M.C., elected to advance his medical career in Montreal by interning at The Montreal General Hospital. In 1921 he organized the Department of Metabolism in that hospital and was its Director until 1947. Also in 1921 he organized a Clinic for Diabetes in the same hospital and was its Director until 1947 when it was the largest of its kind in Canada and the second largest in North America.

In 1922, he was appointed to the teaching staff of the Faculty of Medicine at McGill University as assistant demonstrator, and rapidly climbed the ladder until he became associate professor a few years later. For over 25 years, before his recent retirement, his responsibilities at McGill included lecturing on medical jurisprudence and toxicology, including industrial toxicology.

McGill University honoured Dr. Rabinowitch in 1932 by awarding him the degree of Doctor of Science. He is the twenty-fourth recipient of this degree, which is the highest in science that McGill has to offer.

The Government of Canada requested Dr. Rabinowitch to organize and direct a scientific expedition to study the nutrition of Eskimos in Canada's Eastern Arctic in 1935. It reached as far north as Craig Harbour and accumulated highly valuable data.

The Government and its National Research Council made use of his experience in toxicology, soon after the outbreak of World War II, by sending him to the United Kingdom to determine how Canada could assist if the enemy resorted to chemical warfare. In 1940, he organized No. 1 Canadian Chemical Warfare Defence Unit, Canadian Army Oversas, and he also represented the Canadian Army Overseas in "defence against gas" matters. He returned to Canada on appointment as Scientific Adviser on Chemical Warfare to the national Director of Civil Air Raid Precautions, and continued in that capacity until war's end.

In 1949, Dr. Rabinowich was made an Honorary Fellow of the Clinical Society of the New York Diabetes Association, and was elected an honorary life member of the Canadian Dietetic Association.

Doctor, scientist, writer, mathematician, philosopher, archaeologist, authority on comparative religion, and now an experimental agriculturalist in Lac Paquin, Quebec--he will give us his views on "Medical Evidence in a Court of Law".

Gentlemen-it is my great privilege to introduce Dr. Rabinowitch.

DR. RABINOWITCH: Eighteen hundred years ago, the Brahmin Bidpai, said, in one of his Fables, that a cat has nine lives. Four hundred years ago, the English dramatist, John Heywood, said in one of his Proverbs that a woman has nine lives. No one, to my knowledge, has ever said that a man has nine lives. Yet this is not my nineth, but my twelfth revival since my retirement, when I believed myself to have been completely and permanently interred, and for this signal honour I thank you.

But it is no occasion for vanity when one recalls the invitation from the farmer to his son's school-teacher. As the story goes, the farmer had invited the schoolteacher to his home, and, as the school-teacher entered the farmer's house, he said to the farmer: "Your son is very kind; he opened the gate for me"; to which the farmer replied: "Oh, that is nothing; he does that for the cows every day."

Coming to the stated topic, perhaps it may be useful to define the term "medical expert witness". Nothing may be more dull, yet nothing may be more essential than definition. One wonders how many a long and wearisome debate would have been deflated into a single paragraph had the participants followed Socrates, Aristotle and Voltaire, and first defined their terms. What then is meant by "medical expert witness"?

Generally speaking, a witness in a Court of Law is required to testify only as to facts. The Court is not interested in his opinion on the matter at issue, on which the Court must form its own opinion. At times, however, questions arise in which competence to form an opinion can be acquired only by special study or by special experience. In such a case, the opinion of a witness so qualified is both relevant and admissible as evidence, and such a witness is known as an expert witness. If the matter at issue is a medical matter, the witness is a medical expert witness.

But this definition does not suffice for the present purpose, because of the special status of physicians. Very often the evidence of a physician is of a mixed character. He may, for example, be asked to describe an injury, or the general condition of an injured person, or any other thing he may have observed at his examination. All of this is testimony as to facts only. Here, therefore, he is an ordinary witness. But, being a physician, he may then be asked for his opinion about the cause of the injury, and about possible consequences. Here he is testifying as an expert witness. Any physician therefore -whether he is a specialist in some particular branch of medicine, or whether he is a general practitioner-may be a medical expert witness. The weight a Court will attach to the opinion is another matter. This will depend, inter alia, upon the Court's opinion of the witness' qualifications.

By "medical expert witness", I mean one who, from a special study of a particular branch of medicine, and thus from greater experience in that field than is reasonably to be expected of the general practitioner, is able to express opinions upon facts which are admitted, or upon facts which are proved by himself, or upon facts which have been proved by other witnesses in his hearing at the trial, or which are matters of common knowledge. They must be opinions which can be formed only as a result of special study and experience, and not about matters upon which the court judge and jury-is able to form its own opinion. In addition to those qualifications, a medical expert witness is expected to be able to construct hypotheses from facts.

The history of this type of medical expert witness could alone form the subject-matter of an interesting talk. Suffice it, here, to say, he is of comparatively recent date, and the reason is not far to seek.

Existence of such medical expert witnesses implies opportunity to acquire a degree of medical knowledge more than the ordinary, and here is an example of opportunity under Babylonian Law:

"If a doctor shall operate on the eye of a man with a copper lancet and that man shall lose his eye, the eye of the doctor, with a copper lancet shall be put out." "If he operate on a wound and the patient die, his hand is to be cut off."

As the archaeologist, Leonard Woolley put it, one may well imagine why the doctor of that day preferred to use charms rather than the knife.

Egyptian law later gave the physician some protection, but only provided he confined his practice to fixed standards, which, therefore was little more conducive towards advancement of medical knowledge.

But even centuries later-eight hundred years after Socrates and Plato, Aristotle and Hippocrates, after Euclid and Ptolemy-if a nobleman died, his doctor was handed over to the family to do with him as they pleased. This was the Visigoth Code (c.410 C.E.) And in 580 -two centuries later-Guntram, King of Burgundy, executed two doctors because they had failed to cure his wife of plague. In 1337, an eye surgeon was thrown into the Oder because he failed to cure John of Bohemia of his blindness. And less than five hundred years ago -in 1464-over two hundred and fifty years after Roman Law had made fault the test of liabilityMatthias, King of Hungary, offered a reward for the cure of a wound from which he suffered, but with the proviso that, if the treatment failed, the doctor was to be put to death.

Coming more closely to the stated topic, when Samuel Butler cynically misinterpreted the meaning of the Psalmist's outburst of praise-"One day in Thy courts is better than one thousand", he had in mind the tribulations of the litigant, who often spends many a tiresome day in court corridors waiting for his case to be called, and then many a distressing hour when it has been called. The ordinary witnesses in the case are little less discomforted, for they are not allowed in the Court room until they are called to give their evidence, and little provision is made for them in the waiting rooms outside. Medical expert witnesses are in a different category. Since their evidence is not affected by that of the other witnesses, they are generally permitted to attend the proceedings, which gives them free of cost post-graduate training in human nature as eye-witnesses under exceptionally revealing conditions.

Samuel Butler could, however, well have included physicians in his cynicism for other reasons.

Most physicians, when they enter upon their duties of their medical career, feel and hope that it may never be their lot to become acquainted with a court of law, and still less with the environment of the witness-stand. This may seem curious, for to serve the ends of justice is as noble and essential a duty as it is to treat the sick. But there are reasons.

One is professional secrecy. Deeply ingrained in physicians, because of the Oath of Hippocrates, and his undergraduate training, is that discussing the illness of a patient with others, even when there is nothing to conceal, is most reprehensible.

There is then the uneasiness that that to which the doctor is asked to testify about his patient may be actionable in law, either (a) as a breach of an obligation to maintain professional secrecy or (b) on grounds of defamation of character; or his testimony may be in violation of a Statute, as for example the Venereal Disease Act. When he discusses this with counsel, and counsel tells him that "privileged communications" belong to a difficult and complicated branch of law, it does not exactly ease his anxiety. If, by accident, he violates the law, but is a member of a Medical Protective Association, he will not suffer financially. Also there are some simple rules to guide him in most cases, and the Court, if appealed to, will protect him. All of this, of course, applies to his own patients. But overriding all, in any case, is the intense dislike to have to disagree in public with another physician's opinion on a medical matter. Because of these, and other reasons, it is general experience in Courts of Law that, notwithstanding the fact that physicians are university-educated persons, as a group, doctors make poor witnesses.

In a small community, the doctor has no alternative. There, he is the family physician; also probably the surgeon; also possibly the Public Health Officer; also possibly the coroner, and he may have assigned to him every other duty for which, because of his medical training, he is particularly fitted. It recalls the story about the merchant who was the "big frog in the small puddle".

A travelling salesman had visited a small village and had sold the proprietor of its general store a bill of goods. When the goods arrived they were not as represented. The merchant consequently returned them. The wholesaler, then attempted to collect the account and drew a sight-draft on the merchant through the local bank, which returned the draft unhonoured. The wholesaler then wrote to the post-master about the financial standing of the merchant, and the post-master replied it was excellent. The wholesaler, therefore, finally wrote to the local lawyer, instructing him to collect the account, and this was the reply he received, by return mail:

"The undersigned is the merchant on whom you attempted to palm off your worthless goods. The undersigned is the president of the bank to whom you sent your sight-draft. The undersigned is the post-master to whom you wrote, and the undersigned is the lawyer whose services you sought to obtain for your nefarious business. If the undersigned were not also the pastor of the church at this place, he would tell you to go to the devil."

But to overcome this dislike of courts of law, lawyers are not very helpful. When medical expert testimony, in its presently understood sense, came into being in the reign of Queen Elizabeth I (1553), it was introduced in a Court of Law in England in these words:

"If matters arise in our law which concern other sciences and faculties, we commonly apply for the aid of that science or faculty which it concerns, which is an honourable and commendable thing in our law, for thereby, it appears that we do not despise all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."

But, notwithstanding this approval, encouragement and commendation, through the centuries, to this day, jurists, even at the highest levels, have taken a dim view of expert evidence.

One hundred years ago, Lord Campbell, Lord Chancellor of England, renowned jurist of his day, gave it as his final judgment, after the experience of a lifetime at the Bar and on the Bench, that expert witnesses came with such a bias on their minds to support the cause in which they had embarked, that hardly any weight should be given to their evidence.

More recently in England, Cockburn, Chief Justice, a little more emollient, observed-I quote verbatim-"it was in the nature of things that those who gave scientific evidence should lean slightly to the side upon which they are giving their testimony, not from any dishonest intention, but from a perfectly natural and human feeling, as in such cases a man was apt to look with a keener eye on those things favourable to his own side than those which are unfavourable."

These are opinions about experts in all fields. Referring more specifically to medical expert witness, in England, Bovill, Chief Justice, observed-again quoting verbatim -"The great misfortune, or defect, hitherto has been that medical men, like any other professional men, have been too much in the habit of making themselves partisans in endeavouring to support the particular views of the parties on whose behalf they have been called, and this has led to conflict of opinion not very creditable to the profession."

Not very pleasant; but these views are not difficult to understand. In the examination-in-chief, everything the medical expert witness says in the replies to questions put to him by counsel favours counsel's client. In the cross-examination, the medical expert witness counters, if not everything, almost everything, opposing counsel puts to him as contrary evidence. But the reason is not far to seek, and, if I may respectfully suggest, is not as much appreciated by the legal profession as it might be.

If he is to do justice to himself; if his conduct on the witness-stand is to reflect honour upon the university that had graduated him, and, if he is to reflect honour on the profession of which he is a member, no medical expert witness, aware of these responsibilities, will enter a witness-stand unprepared. He will not consent to testify in a case until he has made a very careful study of all the of the known facts in the case, medical and non-medical, and, in a criminal trial, until he has seen the accused and put questions to him, the significance of which, whether in his favour or not, the accused cannot possibly appreciate, not being a physician. Nor will he enter the witness-stand until after a conference, or, where necessary, a number of conferences with counsel, and thus, not before he has had every opportunity to differentiate to the best of his ability between (a) well-established medical facts and generally accepted, but not as yet thoroughly established medical facts, and (b) between such facts and theory. Where he resorts to theory, it is theory on a sound factual basis, and not a product of uncontrolled imagination. If, after such searching analysis, he is firmly convinced of the corrections of his opinions he consents to testify in the case. If a medical expert witness has not a firm conviction that his views are correct, he has no business as a witness in the case.

But, whatever one's opinion may be of medical expert testimony, the fact remains that it must be reckoned with in a very large proportion of cases. There are many cases that cannot be equitably decided without it, and many more in which it is a vital link in establishing facts. Uneasy as he may feel, who but a doctor can assist a Court of Law in arriving at justice where the matter at issue is a medical matter? In a civil case, when a person, because of having suffered a bodily injury, sues for medical costs, who but a physician can assist the Court in determining the actual degree of the injury? In a criminal trial very often the crucial facts are the medical facts.

Not infrequently, Courts of Law do not benefit to the extent possible from medical expert evidence, and, for this, may I respectfully suggest, lawyers are to blame. For this there are many reasons. Three will here suffice, and the first is the qualifying of the medical expert witness by counsel.

The value of the expert in a Court of Law is, to a considerable extent, dependent upon his reputation. A medical expert witness, therefore, does not appear to the best advantage unless he is fully qualified by counsel before he is questioned about the case. One tactical error, there-

fore, is when, after one or two questions, because opposing counsel states that he is satisfied with the status of the witness, counsel who has called the witness asks no further questions. This may be a compliment to the witness, and the learned judge may be satisfied, but, in a trial by jury the probability is that few or none at all of these twelve men know anything about the witness.

Another tactical error-and not an uncommon practice-is to say to the witness: "State your qualifications." This is embarrassing. I believe it was Montaigne who said that "one never speaks of one's self without some detriment to the person spoken of", and certainly repeated use of the first person pronoun is in this category. To a jury, it appears-and it appears to the witness-like a "peacock preening its feathers", and the more the qualifications the more does it appear as exhibitionism, vanity, and conceit. The result is that the witness restricts himself to one or two, or, at the most, three only of his qualifications, which is most unjust to counsel's client who may be relying to a large extent upon the witness, especially if the witness is particularly well qualified. The proper procedure, if I may suggest, is that counsel have before him all of the facts about the medical expert witness' qualifications, and, with this as a guide, ask him whether he is so-and-so; whether of such and such a scientific publication he is the author, etc., the reply to each of which will be in the affirmative.

Another fault is in the preparation of the case. It is not enough for the medical expert witness to know his subject. It is also his duty to fully familiarize counsel with the basic premises on which his expert opinions rest, and the circumstances and details which had led to these opinions. This may require much time-often a full day or more-and this counsel with a busy practice may not find it possible to give. Nevertheless, the assistance which the expert medical witness is able to give the Court is in direct proportion to the extent to which the case was prepared. It is only at such conference that a medical fact, not previously known to the expert medical witness, and of paramount importance, may be discovered. Or, though the fact was known to him, its medical significance was not fully appreciated, because of not having known about some non-medical fact in the case. Not infrequently -and I now speak from personal experience-upon such a fact alone, may be sufficient to rest the entire case, as far as the medical aspects of it are concerned. If counsel does not consent to such conference, time-consuming as it may be, the only alternative for the medical expert witness is to refuse to give evidence, for, if he does not retire from the case, he is neither just to himself, to his university, to his profession; nor is he just to the person who is paying him his fee.

It is also not satisfactory to ask a medical expert for his opinion, and not ask him to state his reasons. Juries, as judges, are far more impressed with reasoned exposition than with unsupported assertion.

A question often asked by undergraduate students is this: To what extent, if any, should a medical expert wit-; ness assist counsel in cross-examination of opposing medical expert witnesses. How far has a medical man the moral right-and thus the right in accordance also with medical ethics-to make use of his professional knowl= edge in this respect?

The answer, as I see it, is clear. It is absolutely wrong, from the standpoint of medical ethics, to assist counsel in embarrassing a medical witness who has expressed an opinion to the best of his ability, when that opinion was based upon evidence generally accepted in medical science as fact, adverse as his opinion may be. Under no circumstances whatever is a physician to assist counsel to embarrass the witness, when the witness is telling the truth. The attitude of a medical expert witness should be directed entirely to establishing the medical facts "let the chips fall where they may". He is a scientist; it is counsel's duty to fight the case, not his. What a medical expert witness may do, and what, in fact, it is his duty to do, is call the attention of counsel, when the witness has expressed an opinion based upon what he believed to be a fact, but which is definitely known not to be a fact. To correct an erroneous statement is a duty, and no strictly scientific witness can reasonably object to such assistance. Only sound argument can promote justice, and the first duty of a physician is not that of a physician, but of citizenship-"The practice of medicine is ... a treaty with society."

The real guide for the conduct of a medical expert witness-whether he should or should not, in a given set of circumstances, assist counsel in the cross-examination -is this: Will that assistance enable both medical expert witnesses to have that respect for each other after the trial which they had for each other before the trial?

Medical expert evidence in Courts of Law has its lighter sides, and, as this is a luncheon, perhaps, in closing, it would seem to be the more appropriate dish. A personal experience some time ago, at a trial for murder, therefore, comes to mind, because of the very human touch.

It was a trial for murder by arsenical poisoning, and the deceased had lived for sixteen days after the onset of his illness. Generally, acute arsenical poisoning causes death within about eight hours, or still less, from shock; whereas, if the person lives for such length of time as sixteen days, one of the causes of death is disease of the kidneys. But kidney disease may be caused by many conditions and, in a trial for murder, the Crown's proof of the guilt of the accused must be beyond reasonable doubt. Therefore, if the deceased had died from kidney disease, and if the defence is able to show that, though the signs and symptoms were consistent with acute arsenical poisoning, they were also consistent with disease of the kidneys not caused by arsenic, a doubt has been raised, and the defendant is entitled to the benefit of the doubt.

In this case, the post-mortem examination, in fact, showed that the deceased had died from kidney disease. Furthermore, no arsenic had been found in the body. Counsel for the accused, therefore, put questions to me about disease of the kidneys. In the course of this questioning, the learned judge put a question to me, to which I replied; but, at the time, I could see no connection whatever between this question and the case. Nor was this the only question which he put to me, which seemed to me entirely unrelated to the case. In fact, this mysterious questioning continued for about fifteen minutes.

At the close of my evidence, on my return to Montreal, his lordship and I found ourselves by accident in the same chair-car. But, though we knew each other, it would have been improper on my part to refer to the case in our conversation, since the trial had not as yet ended. His lordship himself, however, introduced the subject and commented upon my evidence. Here, therefore, I thought I might ask him in what manner these questions which he had put to me had a connection with the case. To this the reply was: "There was no connection." His lordship had been told by his physician that he was suffering from a bladder condition, and, for this, it would be advisable to have an operation; but, to take every precaution to reduce the risk of such operation to a minimum, it would be advisable to enter a hospital for several days for blood tests and other laboratory tests, to determine the efficiency with which the kidneys were functioning. Here, then, was a trial for murder, with the intense atmosphere of all such trials, in order to determine whether, in fact, the charge was true. And, if true, a person was to be consigned to an untimely and ignominious death, and, yet, in the midst of it all-in the solemn course of justice-a free consultation from the Bench!

Such are the trials and tribulations of the medical expert witness!

THANKS OF THE MEETING were expressed by Mr. Harold R. Lawson, Second Vice-President of the Club.