Special Report
SPECIAL REPORT
The Outline of a Medical Malpractice Trial for Radiologists1 A. Everette James, Jr., Sc.M., J.D., M.D., Charles W. Quimby, L.L.B., M.D., and Karl Warden, L.L.M., J.D.
The authors present a step-by-step explanation of the legal principles and procedures governing the conduct of malpractice trials. INDEX TERMS:
Medicolegal problems. Radiology and Radiologists
Radiology 132:767-770, September 1979
This paper presents the basic purposes and tenets of court litigation. Additionally, certain points are emphasized for the preparation of a malpractice trial. We will first consider the elements of a trial individually and then comment about associated procedure (Fig. 1). A trial is a presentation for a judicial determination and requires the establishment of both the facts and the law applicable to those facts, which is accomplished by the procedure of pleadings 2 and practice" (1, 2). A trial is initiated by the filing of a complaint which is a document that states, in accordance with certain legal requirements and principles, pertinent facts which are allegations of a cause of action or actions upon which plaintiffs base their right to either legal or equitable relief against persons named as defendants. To this complaint, the defendants are required to file an answer which denies or admits the allegations but may also allege additional facts which may either exonerate the defendant or will operate to bar or prevent the complainant from right of recovery. In trials, issues of fact as well as issues of law are presented for determination. If there is a trial by jury, only the jury can determine what the ultimate facts are in the controversy. Issues of fact are the province of the jury to resolve. In the United States, the separate functions of the English common law system are combined in the attorney's activities. Because of this arrangement, competent lawyers who try cases should be conversant and know the entire procedural law in their jurisdiction. The attorney is also retained directly by the client. In the initial meetings with his clients, the plaintiff's attorney should determine what category of legal problem is involved. This defines the legal principles that will be at issue and places the problem into one of the general legal categories such as contract, tort, or some other general divfsion of the vast body of legal or equitable categories of the law. After the
ELEMENTS OF A TRIAL
Depositions Interrogatories
Pre-trial discovery activities
Hearings
Motions
L------=:--r-:.--:...---l- -
L--
---l- -
Objections _ L-I_-=--_ Appeal -IL-_---'---__ -
1 From the Vanderbilt University School of Medicine (A.E.J.,Professor of Radiology and Radiological Sciences; Professor of Medical Administration; Lecturer in Legal Medicine; C.w.O., Associate Professor of Anesthesiology) and Vanderbilt University Law School (K.w., Professor of Law), Nashville, TN 37232. Submitted for publication 21 March 1979; revision requested 30 May 1979; received 15 June 1979. 2 Pleadings-the alternate and opposing statements of parties to a legal action. 3 Practice-legal rules of conduct. shan
767
768
A.
EVERETTE JAMES. JR. AND
causes of action have been determined, the attorney will prepare the appropriate pleading. The pleading establishes the issues both of law and fact that will be involved in the case. The pleading should include (3): 1. A logical outline of the medical events in chronological order. 2. A brief description of the malpractice involved in this particular issue. 3. An explanation of the charges and answers. 4. A description of the damages and enough information to relate those damages to the activities of the defendant physician. The legal theories for cause should be presented in the pleading. Those theories most commonly utilized in malpractice litigation are (3): A. Incompetency of the defendant physician. B. Failure of the physician to obtain adequate consultation. C. Breach of contract by defendant.physician. D. Failure to obtain an informed consent (important in radiological practice). E. Unnecessary treatment by defendant physician. The underlying theme is the theory of medical negligence. Both parties are permitted to seek and obtain the names and addresses of the witnesses the adversary intends to call at the time of trial by interrogatories. By the formal instrument of interrogatory, the written inquiry may allow the adversary attorney the opportunity to discover before trial the legal theory and approach to be utilized. It is proper to interview such witnesses and obtain a statement from them if they are willing to comply. Under the pre-trial discovery procedures, if the adversary party or any of the witnesses refuse to make any voluntary statements or give an interview, their depositions may be taken. The purpose of discovery depositions is to acquire information necessary in preparation of a trial, avoid unanticipated occurrences during the trial itself, and to ensure predictable and consistent testimony by witnesses. As a general rule. the plaintiff will make the allegation of damages broad in the pleading because it is easier to narrow them during the conduct of the trial than it is to introduce new damages or allege greater damage than stated in the pleading. To prepare a trial, an attorney must not only research the legal requirements as to what facts must be established to sustain actions or defenses, but also prepare the law for presentation of the proofs and facts at trial. If imaging studies are involved, they should be obtained, reviewed. and their findings discussed. A trial does not necessarily mean only jury cases but may refer to any adversary or nonadversary proceeding. Evidence may consist of direct proof or predicate, i.e., foundation; material must be preliminarily established before the direct evidence is admissible. There is a class of evidence in which testimonial proof is not required. These are called presumptions. They fall into two categories: conclusive presumptions that cannot be refuted; and rebuttable presumptions that remain unless the op-
OTHERS
September 1979
posing party produces evidence to overcome them. Inferences are conclusions drawn by reasonable people based upon facts. In preparing a case for trial, it is often helpful for the attorney to anticipate what may be reasonable grounds for appeal of the case. During the conduct of the trial, the opposing attorney will be considering errors in the application of the law that would allow an immediate legal right of appeal. Pre-trial motions are valuable devices in the aid of trials. The law and rules of civil procedure in each jurisdiction provide for motions. There are motions that relate to the jurisdictions of the court, the venue of the trial, or in the preparation and production of evidence. There are also motions for the refinement and definition of the factual and substantial issues of the case. A delayed motion is a useful technique in response to pleading and is an answer by defendantthat the pleading fails to properly state the cause of action. There are also motions which go beyond the refinement and definitions of the issues of the case. These are called challenging motions. At common law, a bill of particulars is used to obtain the details of the allegations of the plaintiff's complaint or the same type of refinement regarding the answer of the defendant. In preparation of a trial, either party can require the clerk of court to issue subpoenae upon witnesses. A subpoena duces tecum specifically requires a person to bring with him certain exhibits or other matter desired to be produced. Therefore. a radiologist might have this type of subpoena issued to obtain imaging studies. In addition to pre-trial motions, many jurisdictions have pre-trial hearings which tend to reduce the issues to the absolute minimum. In some jurisdictions they are compulsory, while in others discretionary with the judge. At the end of the pre-trial motions and hearings the preparation for the actual adjudication of the case is now complete. The attorney now must decide whether or not it is in his client's best interests to have a trial by jury. In selecting a jury, one must consider that there is no appeal from a jury's finding of the fact, but there is always an appeal from the judge's ruling on any matter of law or his application of the law to any situation in and during the trial. Jury selection is believed by some attorneys to be of little importance while others place great emphasis upon this procedure. One can receive a biographical sketch of each prospective juror. In certain jurisdictions the juror submits to a voir dire, which is the examination of jurors to determine whether or not they shall be permitted to sit in judgment of that case. In medical malpractice cases some authorities feel that the attitudes about and relation of jurors to physicians is of primary importance. During voir dire they determine such prejudices that might occur (3). A preemptory challenge is one in which the jurors are excused from duty in that particular case without assigning any reason for such excuse by the attorney so challenging that juror. The number of preemptory challenges allowed
Vol. 132
OUTLINE OF A MEDICAL MALPRACTICE TRIAL
for each party to an action is a matter of law in each jurisdiction. After attorneys have completed the allotted number of preemptory challenges, they must challenge for cause to have a juror excused. Radiologists who enter court should realize that in every case there are two major issues. One is the issue of law which is for the court, i.e., the judge to pass upon; the other is the issue of fact which is solely for the jury to decide. Besides the jury deciding what is a fact, it also assesses the credibility of the witnesses, evidence and whether or not a party carries the burden of proof. Therefore, to prepare as an expert witness, the radiologist need not be concerned with issues of law or issues of fact per se, but his own opinions and the reason for those opinions. The verdict of the jury is usually a general verdict in the form of stating for which side the jury finds. However, a jury verdict can bea special one in response to court interrogatories. Application for such special verdict must be made before summation and charge of the jury in the case. In most jurisdictions in civil dispute, and in all jurisdictions in criminal matters, the jury verdict must be unanimous. Some statutory provisions have been devised to prevent "hung" juries by reason of failure of unanimity. Opening statements are made at the initiation of a trial. In a complex medical malpractice suit it is common for an opening statement to last 1-2 hours and contain both anatomical and demonstrative evidence. Radiographs and other images may well be presented at this time. In most jurisdictions in civil cases, the plaintiff addresses the jury first and the defendant follows. In some jurisdictions, the defendant may elect to wait until the plaintiff has presented evidence on the main issues before making an opening statement. Opening statements serve to recite the facts that are intended to be proved by that party. It is objectionable to state anything relative to the issues of the law. After the opening statement, the case is then presented. The order of calling witnesses to the stand is governed by the procedural laws and tactics. An expert witness such as the radiologist will usually be called in logical sequence of presentation of the case. Except when they are called to testify, witnesses, other than parties to the cause, may be excluded from the courtroom at the discretion of the trial judge. It is believed that the exclusion of witnesses from court, so that they do not hear the testimony of witnesses who preceded them, ensures the procurement of truthful testimony. Each attorney must determine whether he will invoke the rule of exclusion or waive it. As an expert witness, there is often little need or advantage to view other witnesses except possibly the radiologist called by the adversary attorney. Once a witness has been subpoenaed, he ceases to be the witness of any party but is under the order of the court. A party who called the witness or caused such witness to be subpoenaed has the right to excuse the appearance of that witness and waive the effect of the subpoena. All witnesses should be subpoenaed, especially expert wlt-
769
Special Report
nesses. By so doing, the attorney ensures the appearance of that person. If the witness fails to appear, the attorney can send a bailiff for the witness or cite the witness for contempt of court. Although witnesses upon testifying may feel their presence is no longer required and leave, such witnesses are not free from the effect of the subpoena but must be present and available until excused by counsel and the court. The attorney should ask the court to advise the witness to remain available. If the attorney desires a witness to be excused from waiting in the courtroom, he should ask the adversary attorney and the court if there is any objection to the witness being excused and released. It is advisable to have some understanding with the attorney as to the intentions and obligations of the radiologist expert witness prior to the trial. Witnesses subpoenaed and called by a party are deemed prima facie to be friendly witnesses and cannot be examined by leading questions under direct examination.lf such a witness should testify contrary to statements or representations of the party who called the witness, the party can ask the court for the opportunity to nullify but not impeach that witness' testimony. Therefore, review of the findings on images and the implications in medicine and for the subject at issue should occur prior to trial. The law allows parties to call adverse witnesses. Procedurally, the party calling the adverse witness can question the witness by cross-examination, or can extend to impeachment of the adverse witness. Before doing this, the calling party advises the court that it wishes to establish by voir dire that the witness is an adverse or hostile witness. The calling of witnesses and decisions of timing, line of reasoning, and other considerations regarding the orchestration and use of witnesses is the test of a trial attorney's abilities. The object of direct examination is to prove a prima facie case. After informing the court of the circumstances surrounding the witness' testimony, the usual procedure is to request witnesses to relate tothe court and jury in their own words what they know regarding the matter at issue. After a witness has given testimony, the direct examiner questions the witness to elicit details and facts to make the evidence complete. Objections are requests by opposing attorney to the presiding judge to void a particular statement by a witness or line of questioning by the adversary attorney. One of the main objections on direct examination is that a question represents a leading question. A leading question has been held to be one which presupposes or suggests the answer required of the witness. The reason such a question is legally objectionable is based on the concept that the examiner is in fact testifying rather than the witness. Whether or not a leading question is objectionable and, hence, excludable is within the discretion of the trial judge. An objection should be specific but one may have a valid general objection such as objection that evidence is incomplete, irrelevant, and immaterial (4,5). An objection may be waived expressly or by implication. If an objection
770
A. EVERETTE JAMES, JR. AND OTHERS
is withdrawn at any time after it is made, it is expressly waived. Motions for mistrial should be made at any stage in the trial in which the conduct of witnesses, the adversary, or the court is deemed prejudicial to the client's cause. A motion for continuance means that the trial may be considered as having been started but that the court has asked for a postponement at the end of which the trial will resume. A motion of dismissal is to remove that party from the litigation because that party is not involved in the issue. Cross-examination of a witness called by the opposing attorney is permitted after that witness has been questioned by the opponent on direct examination. The purpose of cross-examination is to ascertain the truth, the credibility and believability of the evidence introduced. Cross-examination is not intended to prove the allegations of the case or defense. Another purpose of cross-examination is to lay foundation for evidence that may be used in rebuttal of the witness' testimony. Discrediting a witness is not an attempt to question one's ability to testify, but only the effect and weight of the testimony. When giving expert testimony, and being subjected to cross-examination the radiologist must be mindful of this fact. The extent of cross-examination is usually controlled by the testimony of that witness as brought out under direct examination. Cross-examination is under the discretionary control of the trial judge as to the latitudeand the extent of the divergence from the evidence or testimony given by that particular witness. Payment of witnesses should be for their expenses and loss of earnings or other losses incurred by reason of time from their usual duties. Payment or promises to pay excessive amounts, a percentage of the amount to be recovered, or payments contingent on the successful outcome of the party's cause will decrease the credibility of the witness' testimony. The charge to the jury is a pronouncement of the law made by the judge. The judge has the sale province of determining what law is relevant, material and applicable to the issues in the case. The jury is usually charged at the conclusion of the summation of counsel. Trial judges have for their own use stock forms of jury charges. If the trial judge neglects to charge on any aspect of the issue, it becomes the obligation of the trial attorney to orally request the court to charge the jury on that particular point of law. Failure to do so is deemed to be a waiver of the attorney's right to subsequently remind the trial judge. Requests to charge are always prepared by the attorney who desires to have the court charge certain principles of law to the jury. Each party has the legal right to draft and present such written requests to charge to the trial judge. Objections to any charge should be made on the grounds that as a matter of law that charge is improper. An objection may be to charge that the court is imposing its 'influence on the jury as to determination of fact. After presentation of the case, closing statements will
September 1979
be made by each attorney. Closing statements are arguments to the jury and the final effort by the attorney to convince the trier of fact to resolve the issue in favor of his client. The procedure as to who is first and last in summation depends upon the jurisdiction. The trial judge sets the time limit allotted for summation by each attorney. Many attorneys use the technique of making closing statements that refer directly to those made in the opening statement and then demonstrating how the concepts were proven in the body of the trial. Summation is a final attempt to clarify the evidence, a statement of the inferences that may be drawn from such evidence. It is an attempt to accomplish the desired results, a verdict in favor of the attorney's client. Once a verdict has been rendered, it is proper to make a motion to set aside the verdict if 1) the verdict is not in conformance with the issues submitted to the jury, 2) the verdict is not in accordance with the law as charged to the jury by the court, or 3) the verdict is a result of bias, passion, or prejudice. All of these motions must be made soon after the jury verdict has been received and recorded in the case, and before the formal judgement has been entered on the record of the matter. Most jurisdictions provide that applications for new trials must be made to the trial judge within a certain time period after the jury verdict has been rendered. The trial attorney, at the time of the announcement of the verdict in the courtroom, advises the court that he and his client are making application within the time allowed by the rules. Application for a new trial may be made as to all issues in the case. Appeals may be lodged to a superior court to overturn the decision of an inferior one. In summary, the procedures of trial follow a natural sequence of events. Knowledge and awareness of the elements of a trial should diminish the concern of radiologists of a pending courtroom appearance and improve their performance.
ACKNOWLEDGMENT: We express our appreciation to Donald Hull (professor of law) and Ward DeWitt for their helpful suggestions.
A. Everette James, Jr., Sc.M., M.D., J.D. Department of Radiology Vanderbilt University Hospital Nashville, TN 37232
REFERENCES 1. Curran WJ, Shapiro ED: Law, Medicine, and Forensic Science. Boston, Little, Brown, 2nd ed, 1970 2. Holder AR: Medical Malpractice Law. New York, John Wiley and Sons, 1975 3. Charfoos LS: The Medical Malpractice Case: A Complete Handbook. Englewood Cliffs, NJ, Prentice Hall, 1974 4. James AE Jr, Hall OJ, Johnson SA: Some applications of the law of evidence to the specialty of radiology. Radiology 124:845-848, Sep 1977 5. Rothstein PF: Evidence in a Nutshell. St. Paul, MN, West Pub, Co., 1970
SPECIAL REPORT
The Outline of a Medical Malpractice Trial for Radiologists1 A. Everette James, Jr., Sc.M., J.D., M.D., Charles W. Quimby, L.L.B., M.D., and Karl Warden, L.L.M., J.D.
The authors present a step-by-step explanation of the legal principles and procedures governing the conduct of malpractice trials. INDEX TERMS:
Medicolegal problems. Radiology and Radiologists
Radiology 132:767-770, September 1979
This paper presents the basic purposes and tenets of court litigation. Additionally, certain points are emphasized for the preparation of a malpractice trial. We will first consider the elements of a trial individually and then comment about associated procedure (Fig. 1). A trial is a presentation for a judicial determination and requires the establishment of both the facts and the law applicable to those facts, which is accomplished by the procedure of pleadings 2 and practice" (1, 2). A trial is initiated by the filing of a complaint which is a document that states, in accordance with certain legal requirements and principles, pertinent facts which are allegations of a cause of action or actions upon which plaintiffs base their right to either legal or equitable relief against persons named as defendants. To this complaint, the defendants are required to file an answer which denies or admits the allegations but may also allege additional facts which may either exonerate the defendant or will operate to bar or prevent the complainant from right of recovery. In trials, issues of fact as well as issues of law are presented for determination. If there is a trial by jury, only the jury can determine what the ultimate facts are in the controversy. Issues of fact are the province of the jury to resolve. In the United States, the separate functions of the English common law system are combined in the attorney's activities. Because of this arrangement, competent lawyers who try cases should be conversant and know the entire procedural law in their jurisdiction. The attorney is also retained directly by the client. In the initial meetings with his clients, the plaintiff's attorney should determine what category of legal problem is involved. This defines the legal principles that will be at issue and places the problem into one of the general legal categories such as contract, tort, or some other general divfsion of the vast body of legal or equitable categories of the law. After the
ELEMENTS OF A TRIAL
Depositions Interrogatories
Pre-trial discovery activities
Hearings
Motions
L------=:--r-:.--:...---l- -
L--
---l- -
Objections _ L-I_-=--_ Appeal -IL-_---'---__ -
1 From the Vanderbilt University School of Medicine (A.E.J.,Professor of Radiology and Radiological Sciences; Professor of Medical Administration; Lecturer in Legal Medicine; C.w.O., Associate Professor of Anesthesiology) and Vanderbilt University Law School (K.w., Professor of Law), Nashville, TN 37232. Submitted for publication 21 March 1979; revision requested 30 May 1979; received 15 June 1979. 2 Pleadings-the alternate and opposing statements of parties to a legal action. 3 Practice-legal rules of conduct. shan
767
768
A.
EVERETTE JAMES. JR. AND
causes of action have been determined, the attorney will prepare the appropriate pleading. The pleading establishes the issues both of law and fact that will be involved in the case. The pleading should include (3): 1. A logical outline of the medical events in chronological order. 2. A brief description of the malpractice involved in this particular issue. 3. An explanation of the charges and answers. 4. A description of the damages and enough information to relate those damages to the activities of the defendant physician. The legal theories for cause should be presented in the pleading. Those theories most commonly utilized in malpractice litigation are (3): A. Incompetency of the defendant physician. B. Failure of the physician to obtain adequate consultation. C. Breach of contract by defendant.physician. D. Failure to obtain an informed consent (important in radiological practice). E. Unnecessary treatment by defendant physician. The underlying theme is the theory of medical negligence. Both parties are permitted to seek and obtain the names and addresses of the witnesses the adversary intends to call at the time of trial by interrogatories. By the formal instrument of interrogatory, the written inquiry may allow the adversary attorney the opportunity to discover before trial the legal theory and approach to be utilized. It is proper to interview such witnesses and obtain a statement from them if they are willing to comply. Under the pre-trial discovery procedures, if the adversary party or any of the witnesses refuse to make any voluntary statements or give an interview, their depositions may be taken. The purpose of discovery depositions is to acquire information necessary in preparation of a trial, avoid unanticipated occurrences during the trial itself, and to ensure predictable and consistent testimony by witnesses. As a general rule. the plaintiff will make the allegation of damages broad in the pleading because it is easier to narrow them during the conduct of the trial than it is to introduce new damages or allege greater damage than stated in the pleading. To prepare a trial, an attorney must not only research the legal requirements as to what facts must be established to sustain actions or defenses, but also prepare the law for presentation of the proofs and facts at trial. If imaging studies are involved, they should be obtained, reviewed. and their findings discussed. A trial does not necessarily mean only jury cases but may refer to any adversary or nonadversary proceeding. Evidence may consist of direct proof or predicate, i.e., foundation; material must be preliminarily established before the direct evidence is admissible. There is a class of evidence in which testimonial proof is not required. These are called presumptions. They fall into two categories: conclusive presumptions that cannot be refuted; and rebuttable presumptions that remain unless the op-
OTHERS
September 1979
posing party produces evidence to overcome them. Inferences are conclusions drawn by reasonable people based upon facts. In preparing a case for trial, it is often helpful for the attorney to anticipate what may be reasonable grounds for appeal of the case. During the conduct of the trial, the opposing attorney will be considering errors in the application of the law that would allow an immediate legal right of appeal. Pre-trial motions are valuable devices in the aid of trials. The law and rules of civil procedure in each jurisdiction provide for motions. There are motions that relate to the jurisdictions of the court, the venue of the trial, or in the preparation and production of evidence. There are also motions for the refinement and definition of the factual and substantial issues of the case. A delayed motion is a useful technique in response to pleading and is an answer by defendantthat the pleading fails to properly state the cause of action. There are also motions which go beyond the refinement and definitions of the issues of the case. These are called challenging motions. At common law, a bill of particulars is used to obtain the details of the allegations of the plaintiff's complaint or the same type of refinement regarding the answer of the defendant. In preparation of a trial, either party can require the clerk of court to issue subpoenae upon witnesses. A subpoena duces tecum specifically requires a person to bring with him certain exhibits or other matter desired to be produced. Therefore. a radiologist might have this type of subpoena issued to obtain imaging studies. In addition to pre-trial motions, many jurisdictions have pre-trial hearings which tend to reduce the issues to the absolute minimum. In some jurisdictions they are compulsory, while in others discretionary with the judge. At the end of the pre-trial motions and hearings the preparation for the actual adjudication of the case is now complete. The attorney now must decide whether or not it is in his client's best interests to have a trial by jury. In selecting a jury, one must consider that there is no appeal from a jury's finding of the fact, but there is always an appeal from the judge's ruling on any matter of law or his application of the law to any situation in and during the trial. Jury selection is believed by some attorneys to be of little importance while others place great emphasis upon this procedure. One can receive a biographical sketch of each prospective juror. In certain jurisdictions the juror submits to a voir dire, which is the examination of jurors to determine whether or not they shall be permitted to sit in judgment of that case. In medical malpractice cases some authorities feel that the attitudes about and relation of jurors to physicians is of primary importance. During voir dire they determine such prejudices that might occur (3). A preemptory challenge is one in which the jurors are excused from duty in that particular case without assigning any reason for such excuse by the attorney so challenging that juror. The number of preemptory challenges allowed
Vol. 132
OUTLINE OF A MEDICAL MALPRACTICE TRIAL
for each party to an action is a matter of law in each jurisdiction. After attorneys have completed the allotted number of preemptory challenges, they must challenge for cause to have a juror excused. Radiologists who enter court should realize that in every case there are two major issues. One is the issue of law which is for the court, i.e., the judge to pass upon; the other is the issue of fact which is solely for the jury to decide. Besides the jury deciding what is a fact, it also assesses the credibility of the witnesses, evidence and whether or not a party carries the burden of proof. Therefore, to prepare as an expert witness, the radiologist need not be concerned with issues of law or issues of fact per se, but his own opinions and the reason for those opinions. The verdict of the jury is usually a general verdict in the form of stating for which side the jury finds. However, a jury verdict can bea special one in response to court interrogatories. Application for such special verdict must be made before summation and charge of the jury in the case. In most jurisdictions in civil dispute, and in all jurisdictions in criminal matters, the jury verdict must be unanimous. Some statutory provisions have been devised to prevent "hung" juries by reason of failure of unanimity. Opening statements are made at the initiation of a trial. In a complex medical malpractice suit it is common for an opening statement to last 1-2 hours and contain both anatomical and demonstrative evidence. Radiographs and other images may well be presented at this time. In most jurisdictions in civil cases, the plaintiff addresses the jury first and the defendant follows. In some jurisdictions, the defendant may elect to wait until the plaintiff has presented evidence on the main issues before making an opening statement. Opening statements serve to recite the facts that are intended to be proved by that party. It is objectionable to state anything relative to the issues of the law. After the opening statement, the case is then presented. The order of calling witnesses to the stand is governed by the procedural laws and tactics. An expert witness such as the radiologist will usually be called in logical sequence of presentation of the case. Except when they are called to testify, witnesses, other than parties to the cause, may be excluded from the courtroom at the discretion of the trial judge. It is believed that the exclusion of witnesses from court, so that they do not hear the testimony of witnesses who preceded them, ensures the procurement of truthful testimony. Each attorney must determine whether he will invoke the rule of exclusion or waive it. As an expert witness, there is often little need or advantage to view other witnesses except possibly the radiologist called by the adversary attorney. Once a witness has been subpoenaed, he ceases to be the witness of any party but is under the order of the court. A party who called the witness or caused such witness to be subpoenaed has the right to excuse the appearance of that witness and waive the effect of the subpoena. All witnesses should be subpoenaed, especially expert wlt-
769
Special Report
nesses. By so doing, the attorney ensures the appearance of that person. If the witness fails to appear, the attorney can send a bailiff for the witness or cite the witness for contempt of court. Although witnesses upon testifying may feel their presence is no longer required and leave, such witnesses are not free from the effect of the subpoena but must be present and available until excused by counsel and the court. The attorney should ask the court to advise the witness to remain available. If the attorney desires a witness to be excused from waiting in the courtroom, he should ask the adversary attorney and the court if there is any objection to the witness being excused and released. It is advisable to have some understanding with the attorney as to the intentions and obligations of the radiologist expert witness prior to the trial. Witnesses subpoenaed and called by a party are deemed prima facie to be friendly witnesses and cannot be examined by leading questions under direct examination.lf such a witness should testify contrary to statements or representations of the party who called the witness, the party can ask the court for the opportunity to nullify but not impeach that witness' testimony. Therefore, review of the findings on images and the implications in medicine and for the subject at issue should occur prior to trial. The law allows parties to call adverse witnesses. Procedurally, the party calling the adverse witness can question the witness by cross-examination, or can extend to impeachment of the adverse witness. Before doing this, the calling party advises the court that it wishes to establish by voir dire that the witness is an adverse or hostile witness. The calling of witnesses and decisions of timing, line of reasoning, and other considerations regarding the orchestration and use of witnesses is the test of a trial attorney's abilities. The object of direct examination is to prove a prima facie case. After informing the court of the circumstances surrounding the witness' testimony, the usual procedure is to request witnesses to relate tothe court and jury in their own words what they know regarding the matter at issue. After a witness has given testimony, the direct examiner questions the witness to elicit details and facts to make the evidence complete. Objections are requests by opposing attorney to the presiding judge to void a particular statement by a witness or line of questioning by the adversary attorney. One of the main objections on direct examination is that a question represents a leading question. A leading question has been held to be one which presupposes or suggests the answer required of the witness. The reason such a question is legally objectionable is based on the concept that the examiner is in fact testifying rather than the witness. Whether or not a leading question is objectionable and, hence, excludable is within the discretion of the trial judge. An objection should be specific but one may have a valid general objection such as objection that evidence is incomplete, irrelevant, and immaterial (4,5). An objection may be waived expressly or by implication. If an objection
770
A. EVERETTE JAMES, JR. AND OTHERS
is withdrawn at any time after it is made, it is expressly waived. Motions for mistrial should be made at any stage in the trial in which the conduct of witnesses, the adversary, or the court is deemed prejudicial to the client's cause. A motion for continuance means that the trial may be considered as having been started but that the court has asked for a postponement at the end of which the trial will resume. A motion of dismissal is to remove that party from the litigation because that party is not involved in the issue. Cross-examination of a witness called by the opposing attorney is permitted after that witness has been questioned by the opponent on direct examination. The purpose of cross-examination is to ascertain the truth, the credibility and believability of the evidence introduced. Cross-examination is not intended to prove the allegations of the case or defense. Another purpose of cross-examination is to lay foundation for evidence that may be used in rebuttal of the witness' testimony. Discrediting a witness is not an attempt to question one's ability to testify, but only the effect and weight of the testimony. When giving expert testimony, and being subjected to cross-examination the radiologist must be mindful of this fact. The extent of cross-examination is usually controlled by the testimony of that witness as brought out under direct examination. Cross-examination is under the discretionary control of the trial judge as to the latitudeand the extent of the divergence from the evidence or testimony given by that particular witness. Payment of witnesses should be for their expenses and loss of earnings or other losses incurred by reason of time from their usual duties. Payment or promises to pay excessive amounts, a percentage of the amount to be recovered, or payments contingent on the successful outcome of the party's cause will decrease the credibility of the witness' testimony. The charge to the jury is a pronouncement of the law made by the judge. The judge has the sale province of determining what law is relevant, material and applicable to the issues in the case. The jury is usually charged at the conclusion of the summation of counsel. Trial judges have for their own use stock forms of jury charges. If the trial judge neglects to charge on any aspect of the issue, it becomes the obligation of the trial attorney to orally request the court to charge the jury on that particular point of law. Failure to do so is deemed to be a waiver of the attorney's right to subsequently remind the trial judge. Requests to charge are always prepared by the attorney who desires to have the court charge certain principles of law to the jury. Each party has the legal right to draft and present such written requests to charge to the trial judge. Objections to any charge should be made on the grounds that as a matter of law that charge is improper. An objection may be to charge that the court is imposing its 'influence on the jury as to determination of fact. After presentation of the case, closing statements will
September 1979
be made by each attorney. Closing statements are arguments to the jury and the final effort by the attorney to convince the trier of fact to resolve the issue in favor of his client. The procedure as to who is first and last in summation depends upon the jurisdiction. The trial judge sets the time limit allotted for summation by each attorney. Many attorneys use the technique of making closing statements that refer directly to those made in the opening statement and then demonstrating how the concepts were proven in the body of the trial. Summation is a final attempt to clarify the evidence, a statement of the inferences that may be drawn from such evidence. It is an attempt to accomplish the desired results, a verdict in favor of the attorney's client. Once a verdict has been rendered, it is proper to make a motion to set aside the verdict if 1) the verdict is not in conformance with the issues submitted to the jury, 2) the verdict is not in accordance with the law as charged to the jury by the court, or 3) the verdict is a result of bias, passion, or prejudice. All of these motions must be made soon after the jury verdict has been received and recorded in the case, and before the formal judgement has been entered on the record of the matter. Most jurisdictions provide that applications for new trials must be made to the trial judge within a certain time period after the jury verdict has been rendered. The trial attorney, at the time of the announcement of the verdict in the courtroom, advises the court that he and his client are making application within the time allowed by the rules. Application for a new trial may be made as to all issues in the case. Appeals may be lodged to a superior court to overturn the decision of an inferior one. In summary, the procedures of trial follow a natural sequence of events. Knowledge and awareness of the elements of a trial should diminish the concern of radiologists of a pending courtroom appearance and improve their performance.
ACKNOWLEDGMENT: We express our appreciation to Donald Hull (professor of law) and Ward DeWitt for their helpful suggestions.
A. Everette James, Jr., Sc.M., M.D., J.D. Department of Radiology Vanderbilt University Hospital Nashville, TN 37232
REFERENCES 1. Curran WJ, Shapiro ED: Law, Medicine, and Forensic Science. Boston, Little, Brown, 2nd ed, 1970 2. Holder AR: Medical Malpractice Law. New York, John Wiley and Sons, 1975 3. Charfoos LS: The Medical Malpractice Case: A Complete Handbook. Englewood Cliffs, NJ, Prentice Hall, 1974 4. James AE Jr, Hall OJ, Johnson SA: Some applications of the law of evidence to the specialty of radiology. Radiology 124:845-848, Sep 1977 5. Rothstein PF: Evidence in a Nutshell. St. Paul, MN, West Pub, Co., 1970
