Golden Rules of Medical Evidence

Part 1

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GOLDEN RULES

MEDICAL EVIDENCE.

STANLEY B. ATKINSON, M.A., M.B., B.Sc.

of the Inner Temple, Barrister-at-Law; a Justice of the Peace for the County of London; Hon. Sec. of the Medico-Legal Society (London).

“GOLDEN RULES” SERIES. No. XVI.

Bristol: JOHN WRIGHT & CO. London: SIMPKIN, MARSHALL, HAMILTON, KENT & CO., LTD.

PREFACE.

The science, the art, and the correct estimation of the value of Medical Evidence is the province of Forensic Medicine.

It is hoped that this little book will aid the General Practitioner when he is called upon to offer medical testimony, so that the ancient inquest jury especially may fully appreciate the bearing of the technical facts he narrates. Those who pose as “experts,” should ipso facto be themselves authorities on the matter and the manner of bearing testimony.

STANLEY B. ATKINSON,

10, Adelphi Terrace, W.C.

INDEX.

PAGE

Alleged drowning, uncertainty concerning, 47

— overlaying, uncertainty concerning, 47

— still-birth, uncertainty concerning, 47

Blood-circulation preceding sudden death, 48

Civil actions, the fees in, 44

Common witnesses of facts, 8

Coroner’s court, constitution of, 8

— — the fees in, 39

Criminal proceedings, the fees in, 41

Dead, the examination of, 21

Deglutition and peristalsis preceding sudden death, 48

Drawing up a medico-legal report, 24

Evidence, classes of, 8

— given before entering court, 10

Part 2

— in court after being sworn, 30

— in court before being sworn, 28

Examination of the dead, 21

— of the living and the dying, 18

— of the living, dying, and dead, 17

Expert witnesses, 9

Fees, the rules as to, 39

Hearsay testimony, when receivable, 50

Limitations imposed by inadequacy of knowledge, 46

Limitations to medico-legal evidence, 45

Living and dying, the examination of, 18

Manner, the, of giving medical evidence, 30

Matter, the, to be given in medical evidence, 33

Medical certificates, when not to be given, 11

— evidence, the manner of giving, 30

— — the matter to be given, 33

Medico-legal report, the manner of, 24

— — the matter of, 26

Neuromuscular action and sudden death, 49

Post-mortem evidence, limitations of, 47

Precautions under suspicious circumstances, 52

Preparation of evidence, 14

Preparing and giving evidence, 10

Respiration preceding sudden death, 48

Rules as to fees, 39

— of evidence, limitations imposed by, 45

Slow poisoning, if suspected, how to act, 52

Stepping stones of medical evidence, 57

Part 3

Sudden death, vital activities preceding, 48

Suicide, threatened or attempted, 54

To escape attending as witness, 13

Vital activities preceding sudden death, 48

Witness, to escape attending as, 13

Witnesses, classes of, 8

Golden Rules of Medical Evidence.

Every legally qualified and registered medical practitioner in actual practice in or near the place where the death in question happened, by the Coroners Act, 1887, may be summoned by the Coroner to give medical evidence as to the cause of that death. Thus medical men may be compelled to practise medical jurisprudence if called upon so to do. With the growth of knowledge and exact observation, the weight which is attached to medical evidence has increased proportionately. It is still true, however, that “the exercise of a sound judgment, which is of far more value in medico-legal matters than all the substance of all the ancient medicina forensis, must be our guide.”

The =Coroner’s Court= differs from other tribunals in that, primarily, it conducts an enquiry to which there are no formal parties. The evidence received by this Court is on that account much less bound by technical rules.

CLASSES OF MEDICAL EVIDENCE AND WITNESSES.

The evidence of

=I. Common witnesses of Facts which they have observed.= They state the minor premiss of the forensic argument. Those who can describe technical matters which they have seen are skilled common witnesses: medical men usually appear in court as skilled witnesses. Job’s “I shall see for myself, and my own eyes shall behold, and not another,” indicates the correct attitude of a common witness of fact.

The testimony of

=II. Expert witnesses concerning their Opinions.= They state the major premiss of the syllogism, whose conclusion is found in the verdict of the jury. All expert witnesses should be skilled witnesses. Experts sometimes become common witnesses when examined as to exhibits produced in court. The weakness of expert testimony is, in practice, its ex parte nature. Medical men called to give evidence as to fact, must beware of being unconsciously drawn into offering expert testimony.

I. PREPARING AND GIVING EVIDENCE.

=A. BEFORE ENTERING COURT.=

Notify directly to the Coroner all deaths, the certificate of the cause of which you are unable to sign (persons found dead—whose death was caused or hastened by accident or injury—who have died without recent medical attendance—who, although attended by a registered medical practitioner during the last illness, have died in such a manner or at such a time, that the medical man is unable to assign a cause of natural death, or for some good reason declines to certify the cause).

Most of the cases in which you give medical evidence are those in which you have declined to sign a certificate of the cause of death.

There are also those cases in which the relatives object to your treatment, and those in which the registrar refers your certificate to the Coroner.

The fact that the account for professional services rendered is likely to be unpaid is =not= a good reason for refusing to sign a death certificate.

=Decline to give medical certificates= to police-constables or to solicitors’ clerks gratuitously, and without authority being shown.

Demand a formal interview by appointment during professional hours with a responsible superior; otherwise you may receive no fees.

Volunteer no private information, and express no opinion in public, concerning medico-legal causes with which you are not personally concerned; otherwise you may be sub-pœna’d to support your views. If you know facts which will aid the execution of justice, give a =hint to the police= either yourself or by a medical friend.

Give information viva voce or in letters marked “private.” Never write an unofficial opinion. “Do right, and don’t write—then fear nothing.”

Should you receive threatening letters, demanding blackmail, or otherwise without reasonable cause, at once put them into a good solicitor’s hands. “Let this action be a lesson for all men to stand boldly forward—to stand on their character—and not, by compromising a present difficulty, to accumulate imputations on their honour.” Associate yourself permanently with a Medical Defence Society.

Unless in self-protection, or at the request of patients, do not appear in court without having been properly served with a formal sub-pœna.

Do not fail to attend after receiving a formally served sub-pœna, on peril of contempt of court and an action for resulting damages on the part of the litigant calling you as a witness. You need not afford a precis of your evidence. “He [or they] must be satisfied with impromptu answers.” When in doubt or difficulty, seek at once the best legal advice possible.

TO ESCAPE ATTENDING AS A WITNESS:

Part 4

=In Coroners’ Courts.= Written certificates are usually accepted in Coroners’ Courts from members of hospital staffs and from general practitioners concerning the absence from ill-health of witnesses or jurymen; the nature of the illness need not be specified. In higher Courts personal attendance and evidence upon oath are necessary.

=In Civil Courts.= If an appeal to the solicitor fails, you may state that your memory of the events in question is vague, and when prompted you may find that the facts as known to you are quite hostile to his client’s claim.

You may decline to offer “=expert opinions=”—a direct interference with the facts and circumstances of the case alone =qualifies= you as a common skilled witness who is bound to give evidence if required so to do.

THE PREPARATION OF EVIDENCE.

“More mistakes are made, many more, by not looking than by not knowing.” You must be ready to meet an =exhaustive interrogation= in Court: hence it is essential that a careful clinical or post-mortem examination should be made, with the aid of all reasonable modern apparatus, and that what is known professionally concerning the matters in hand should be revised from modern text-books: your knowledge of pathology must be up-to-date. “You must know a thing before you suspect it, and you must suspect a thing before you find it.”

=Remember= you are not a partisan: value accuracy of observation and of statement as you do your professional reputation.

You must be prepared to =explain facts and conclusions clearly= to a body of laymen.

=Beware= of mistaking a previously formed inference for a recollection of actual fact—assumed conclusions sometimes fallaciously suggest the real cause. “The chambermaid, in the background, made out as much of the letter as she could, and invented the rest; believing it all from that time forth as a positive piece of evidence.” Stat pro ratione voluntas is a fallacy to be guarded against.

Welcome, and even suggest, =conferences= which will avoid subsequent public differences in medical opinions.

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