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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

cases.

Thus arises the vexata 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.

66

NOTE ON MEDICAL EVIDENCE. BY ISAAC BRADLEY, H.M. Coroner for Birmingham. 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

witnesses, how far the case has been carried by his statements. In cross-examination, properly conducted, he will have been questioned as to alternative hypotheses or possibilities, and it is part of his duty to show by his answers that he has taken them into account, and to explain by what processes of exclusion or exhaustion he has arrived at his ultimate opinion.•

A court ought to consider with respect the opinion of any professional man, speaking out of special knowledge, so far as he can satisfy it that his opinion is well-founded, and supported by sensible and cogent reasons. He is conversant with details not within the ordinary knowledge of laymen, and he ought to be able to make clear to a court the points on which the decision has to rest. On the other hand, court ought not to pay any superstitious or abject deference to his opinion simply because he is a doctor, engineer, chemist, or what not. Nor (at least, with me) would mere titular eminence avail much, unless there were also present strong and well-founded reason and judgment. A judge sweeps away readily enough an ineffective argument of counsel, and, when he is satisfied that he has been made acquainted with the point at issue, he is entitled to do something similar with skilled evidence.

It is, unfortunately, true that some counsel are careless or impatient of mastering medical points; but it is the business of the solicitor-who has digested the case from its inception, and ought to be alive to all those points-to see that the advocate has them brought fully under his notice.

The question of consultation between the medical witnesses on both sides is interesting, but as a solicitor I should object most strongly to such a course. As the legal representative of my client, I should desire to feel that the client's doctor was similarly his medical representative, so that in preparing the case for trial I could have recourse to the doctor on all important points, and discuss with him, without restraint, all the aspects of the case, whether favourable or I should inevitably feel some restraint if I knew that, after seeing me, the doctor was off to meet adverse parties to

engage in a conversation which must involve some disclosure of my case to my adversary. Moreover, in such a consultation of opposed witnesses, an ordinary practitioner might have to meet some exalted member of his profession, who by his prominent position might overbear the ordinary attendant, and yet the humbler man might be the better and more reliable witness. But my chief objection is that preliminary consultation must inevitably bring about a toning-down of the questions in difference, a give-and-take arrangement of the evidence to be subsequently given, and a certain weakening and dilution of the medical testimony all round. If the case is to be tried at all, the evidence should come out in the precise form in which the witnesses themselves wish to give it, and any criticism and modification should develop from the clash of battle itself in open court. One's best witness could not possibly be strengthened--and must in many cases be weakened-by chaffering with an opponent on contested points before the trial. A client is entitled to have all his chances fought out, and not to run the risk of having them whittled down beforehand. If I am to strike a blow on his behalf, I should have all possible force behind it. If the blow misses or fails, so it must be, but it ought at least to be firmly struck.

I am conscious of the contradictions constantly met with in professional evidence, some of which are humiliating to all concerned, some even ridiculous. Each of us has sometimes heard statements gravely made which passed our understanding. But in discussing the question here, I am bound to assume that a doctor is at least honest in his opinion; and that, while putting on the facts before him a construction the most favourable to his patient, he will not degrade himself by going against light and knowledge. Some men have, no doubt, been known to forego some self-respect by giving an untenable opinion for the sake of a fee, but one generally finds that a professional man values his reputation too highly to place himself in a position so false that he knows he must go down like a ninepin before a shrewd question from the adversary.

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