Medical malpractice trials involve a “battle of the experts,” as opposing experts take conflicting positions on medical issues. It can be dangerous to simply let the jury sort out the dispute without assistance. In 2007, the Ohio Rules of Evidence were amended to permit use of medical texts and journals as substantive evidence at trial. As such, medical literature can be an important tiebreaker when it comes to sorting out competing expert opinions.
Medical literature contains the opinions of independent experts — the authors themselves. It can also be used to challenge the credibility of an expert. Experts say outlandish things all the time, but jurors have no way to know it. Literature can act as a compass to point them in the right direction. I have a few loose rules for using medical literature effectively at trial:
- Vet the literature with an expert to make sure that it is current and accurate.
- Avoid literature from foreign medical journals. The more well-known the source, the better.
- Ensure that the portions of the literature that you show the jury are easily understandable.
- Display the article to the jury so they can read along.
- Work slowly with the document, so jurors who are slower to comprehend can follow along.
- Put the document into context by identifying the authors, their institutions, the journal and its affiliations, and the purpose behind the study.
- Have your own expert validate the literature and its applicability to your facts. It is useful to read relevant portions once, then ask your expert what each sentence means.
- Keep opposing witnesses on a short leash, so the focus remains on the medical literature.
- Use the literature in closing argument to validate your positions.
- Be sure that literature supporting a standard of care existed at the time of the medical malpractice. Newer literature can be related back if it relies on literature that pre-dates the date of injury. Check the footnotes, if this is a concern.
Two issues often arise with use of medical literature. First, Ohio law is silent on whether literature must be disclosed before trial. If you ask for an opponent’s medical literature in discovery, they always dodge the question. I ask defense counsel if they intend to use literature and, if so, work out a date to swap articles. If defense counsel refuses, ask the court at the final pretrial how the issue should be handled. It is best to avoid surprises.
Second, physician groups have purposefully tainted literature to set up defenses, such as unsubstantiated “forces of labor” defenses in shoulder dystocia, Erb’s palsy brachial plexus injury cases. In addition, specialty boards carefully label standards as “recommendations” or “guidelines,” so they can argue that their application is discretionary or situational. It is important to have your expert reveal this skullduggery, and explain how the standards protect patient safety, which is the real standard of care.