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BY HERBERT MANLEY, M.D. The advent of the legal vacation suggests that perhaps to some readers a short essay on the present position of medical evidence may be neither unwelcome nor unprofitable.
In considering the subject, one is met with the fact that, as a rule, the doctor is not considered a satisfactory witness. There is often some want of harmonious understanding, real or apparent, between the examining counsel and the witness. This may arise from several causes :
1.—Medical evidence is essentially the giving of an opinion, sometimes based upon facts, as after a post mortem or other examination; sometimes founded purely upon theory and the experience of the witness in other similar cases. The value of such evidence to the counsel is either the value of the grounds upon which the opinion is stated to be based, or the eminence of the witness (not always an easy matter to assess).
2.—It is exceedingly difficult to clothe strictly scientific terms in popular language, and, unless the barrister or solicitor engaged in the case is willing to master the exact medical point at issue, there is a danger that the true meaning of the evidence is lost.
3.—There is a disposition, for which the profession is partly to blame by reason of its own obscure diction, on the part of judges and counsel to minimise the value of evidence of this type as being speculative, lacking in definite terms, and unreliable.
It is perhaps not altogether wonderful that medical men are such bad witnesses, seeing that little or no endeavour is made to teach them their duty to the State during their curriculum ; and further, that when they are launched into practice, they find all sorts and conditions of men, from the police-officer upwards, endeavouring to get out of them something without paying for it.
Without dwelling further upon these unpleasant topics— the mention of which was inevitable—let us pass to other points in medical evidence. The cases in which medical men are concerned are either civil or criminal. To take the latter first-It must be admitted at once that in all criminal cases the medical witness, even though he may appear for the prisoner's case, must observe an absolutely judicial and impartial attitude. Nothing can be more fatal than for a medical expert to adopt the position necessarily assumed by the police of securing a conviction at all hazards. It is manifestly his duty, in stating the facts of which he is possessed, to state them all, and not merely those which may tend to convict the prisoner. It is not always easy to induce the prosecuting solicitor to see the case from this point of view, while an interview with the prosecuting barrister is almost unheard of. There are, of course, exceptions to this state of things, but they are rare. The medical expert should consider himself as the medical assessor of the judge, and if he makes this position plain to his lordship, due value will be given to his evidence.
Much complaint has recently been made of the Coroner for South-East London and his expert, Dr. Freyberger. It cannot be denied that the bulk of this complaint is wellfounded. Oddly enough, no one has been brave enough to discover the real reason why a medical expert had become necessary. The true grievance against Mr. Troutbeck is this : that he has elected to rely on the post mortem evidence of an expert, and to ignore the clinical evidence of the ante mortem practitioner. It is not given to all men to make a post mortem with accuracy and tidiness; many men have never made a complete post mortem examination until they are suddenly called upon by a coroner after they have been a few months in practice. Is it fair that to such haphazard anatomists should be left questions upon which the hanging of a fellow-creature may depend? The proper course undoubtedly is to appoint, as far as circumstances will permit, a medical pathologist to every coroner's court, whose evidence should follow the evidence of the general practitioner
where one has been in attendance during life. To be summoned after death confers no claim to be heard, nor should proximity of residence be a matter of moment to the coroner. It will, of course, be noticed that the special pathologist would only be needed where a post mortem examination is required, or where some exceptional difficulty arises (as it may do). But it will at once be obvious that in all cases in which an inquest may lead to a charge of murder or manslaughter two medical witnesses are not too many.
In civil suits the case is widely different : eminent medical men in the pay of insurance and railway companies appear frankly as partisan witnesses, and in their anxiety to benefit their clients do not a little to justify the low opinion expressed by judges and counsel of medical evidence. Instances of opinion based upon insufficient statement of fact will readily occur to those who study the reports of medico-legal
Thus arises the rexata quæstio : Should medical witnesses consult? It is probably known to all active members of the British Medical Association that this question has been during the year before the divisions, and 108 replies were received. Although it is probable, from what was said at the representative meeting, that the question had not received the attention which it deserved at the hands of the division, it was found that a slight majority was in favour of consultation. As a matter of fact, the votes are practically equal—for and against.
It was reported that the practice of consultation was carried out in Leeds, and presumably therefore on the NorthEastern Circuit generally ; that in London it was invariable; that there was no legal difficulty in the way of it; that judges had approved of it; and, more than all, that it enhanced the value of the medical evidence by taking away from it any taint of partisanship. At the same time, it was also felt and urged that consultation could not be made an invariable rule; to express an opinion in favour of consultation was merely the expression of a pious opinion; if the practice were made invariable, it would expose one to the necessity of
meeting in consultation undesirable persons whom one would decline to meet under other circumstances. It would, further, debar the medical witness from directing the solicitor of his own side as to the possible lines of cross-examination, since after consultation it would not be honourable to reveal the arguments on points of difference. It is not to be expected that in law suits more than in other cases doctors shall not differ, but it would be hard to be deprived of the right to enunciate and enforce one's own opinion because there had been a consultation. The question is referred back to the divisions of the British Medical Association, and it is hoped that this time it will receive the attention it deserves.
In conclusion, it may safely be recommended to all practitioners to familiarise themselves to some extent with the rules of evidence, and to remember that, as a learned and highly-educated race, much is expected of them. In many instances they have undergone a longer and more laborious apprenticeship to knowledge than the barrister whose questions they are called upon to answer.
Let them remember that they owe a debt, not only to themselves, but to the profession, and the reproach will soon be wiped away.
NOTE ON MEDICAL EVIDENCE.
The first step is to ascertain the true status of the witness “ of art or skill,” who, in a case involving scientific or professional knowledge, not only testifies to such facts as he has observed, but is called upon to draw inferences from those facts, and to give his opinion as to their import and bearing and their consequences, whether actual or anticipated.
The author of the foregoing paper desires that the medical witness should regard himself, or be regarded, as an assessor ; but this appears scarcely practicable. An assessor, in the true sense, is summoned or appointed, not by a party to the proceeding, but by the tribunal itself. Unless that be so, he cannot be treated as unprejudiced. In most cases requiring medical evidence, there are practitioners already in the case, such as the ordinary attendant and the consultant of the injured man; and on that man becoming a plaintiff or prosecutor, he naturally desires, and is entitled to, the fullest benefit of the knowledge they have gained by attending him. Clearly neither of them can be made an assessor, nor can the witness quite safely regard himself as a pure assessor without assuming some of the functions of judge or jury. If the judge require independent assistance, he must seek it elsewhere.
My own view is that a witness of art or skill (I abominate the word “expert,” which has become mere slang) must be treated like any other witness. He testifies first as to actual fact, then as to inference and opinion ; his evidence is tested by cross-examination, after which the decision rests with the tribunal. Having stated his views and given the reasons which lead him to his conclusions, that tribunal—whether magistrate, judge, or jury-must decide how far it has been convinced in his favour, and decide, as it does with all other