The Law and Medical Men

by R. Vashon Rogers

It must always be remembered that medical men, when called as skilled witnesses, may only say what, in their judgment, would be the result of certain facts submitted to their consideration, and may not give an opinion as to |119| the general merits of the case, nor on the very point which the jury has to determine, nor on things with which a jury may be supposed to be equally well acquainted ([306]).

As a recent writer puts it, a medical man cannot testify as to matters not of skill in his profession, nor conclusions, nor inferences which it is the duty of the jury to draw for themselves. For instance, it was held that in a trial for murder the opinions of the surgeons as to the probable position of the deceased, when he received the blows which caused his death, are incompetent. The Judge said that he was not aware that surgeons were experts in the manner of giving blows of the description in question, or determining how the head must be placed so as most conveniently to receive them ([307]). Whenever the subject matter of the enquiry is of such a character that it may be presumed to lie within the common experience of all men of common education, moving in ordinary walks of life, the rule is that the opinions of experts are inadmissible, as the jury are supposed—in all such matters—to be entirely competent to draw the necessary inferences from the facts spoken of by the witnesses ([308]). Nor was the opinion of a medical witness admitted where the question, in an action for libel, was whether a physician in refusing to consult with the plaintiff had honorably and faithfully discharged his duty to the medical profession. The Judge said, the jury having all the facts before them were as capable of forming a judgment upon that point as the witness himself. Nor can an expert give an opinion of the opinion of another expert ([309]). A medical man is considered an expert on the subject of the |120| value of medical services ([310]). But he is not so considered when the question is one as to the amount of damages for a breach of contract not to practise physic in a certain town ([311]).

The rule as to excluding experts from the court room during the examination of witnesses has been laid down, in England, thus: “Medical or other professional witnesses, who are summoned to give scientific opinions upon the circumstances of the case, as established by other testimony, will be permitted to remain in court until this particular class of evidence commences; but then, like ordinary witnesses, they will have to withdraw, and to come in one by one, so as to undergo a separate examination.” And in the United States the principle is similarly stated ([312]).

CHAPTER IX. EXPERTS IN INSANITY CASES.

The opinion evidence of medical men in questions of insanity is not, as a rule, looked upon with any very great degree of favor by the courts who have to decide upon the competency, relevancy and weight of the opinions uttered. Chapman, C.J., of Massachusetts, in charging a jury said, “While they afford great aid in determining facts, it often happens that experts can be found to testify to anything however absurd” ([313]). In another insanity case another Judge remarked, “Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount, and it often occurs that not only many days but many weeks are consumed in cross-examinations to test the skill and knowledge of such witnesses, and to test the correctness of their opinions,” (this was the case to a great degree in the well known Guiteau prosecution,) “thus wasting time and wearying the patience of both Court and jury, perplexing, instead of elucidating, the question involved in the issue” ([314]). As to the perplexing instead of elucidating, a writer of the highest authority gives the following, “In a case of alleged child murder a medical witness, being asked for a plain opinion of the cause of death, said, that it was owing to ‘atelectasis and a general engorgement of the pulmonary tissue’.” And in a trial for an assault a |122| surgeon, in giving his evidence, informed the Court “that on examining the prosecutor, he found him suffering from a severe contusion of the integument under the left orbit, with great extravasation of blood and ecchymosis in the surrounding cellular tissue, which was in a tumefied state, and there was also considerable abrasion of the cuticle.” The Judge said, “You mean, I suppose, that the man had a bad black eye.” “Yes.” “Then why not say so at once” ([315]).

Redfield, C.J., in his book on Wills, says, “Experience has shown both here and in England that medical experts differ quite as widely in their inferences and opinions as do other witnesses. This has become so uniform a result with the medical experts of late that they are beginning to be regarded much in the light of hired advocates, and their testimony as nothing more than a studied argument in favor of the side for which they have been called. So uniformly has this been proved in our experience that it would excite scarcely less surprise to find an expert called on one side testifying in any particular in favor of the other side, than to find the counsel upon either side arguing against their clients and in favor of their antagonists” ([316]).

A Lord Chancellor once remarked that his experience taught him that there were very few cases of insanity in which any good came from the examination of medical men. Their evidence sometimes adorned a case, and gave rise to very agreeable and interesting scientific discussions, but after all they have little or no weight with the jury. And Mr. Justice Davis, of the Supreme Court of Maine, after stating that he thought juries far more trust-worthy than experts on the subject of insanity, said, “if there is any kind of testimony that is not only of no value but |123| even worse than that, it is in my judgment that of medical experts. They may be able to state the diagnosis of the disease more learnedly, but upon the question whether it had, at a given time, reached such a stage that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinion of his neighbors, if men of good common sense, would be worth more than that of all the experts in the country” ([317]). There is scarcely a single hypothesis as to responsibility (on the part of the insane), no matter how wild, which, among the large number of experts who have concerned themselves with this branch of study, has not its advocates. So says Wharton in his valuable treatise on Mental Unsoundness ([318]); or as Cicero elegantly put it long ago, “nihil tam absurde dici potest, quod non dicatur ab aliquo philosophorum” ([319]).

Considering these things, one is not surprised at Campbell, C.J., in the Bambridge case, saying to three medical men who had recorded their opinions in favor of the insanity of the testator: “You may go home to your patients, and I wish you may be more usefully employed there, than you have been here;” and to the jury he remarked, “We have had during the trial the evidence of three medical witnesses, and I think they might as well have stayed at home and attended to their patients.”

On the other hand, Shaw, C.J., said, “such opinions (as to sanity, etc.) when they come from persons of experience, and in whose correctness and sobriety of judgment just confidence can be had, are of great weight, and deserve the respectful consideration of a jury. But the opinion of a medical man of small experience, or of one who has crude and visionary notions, or who has some favorite theory to |124| support is entitled to very little consideration. The value of such testimony will depend mainly upon the experience, fidelity and impartiality of the witness who gives it” ([320]). And Chief Justice Gibson speaks with just emphasis of the the deference due, in their own department, to the knowledge obtained by men of a subject with which they have grappled all their lives ([321]). The Supreme Court of Texas declared, “The opinions of medical men (on questions of insanity) are received with great respect and consideration, and properly so.” The Supreme Court of Pennsylvania says, “It is well settled that the knowledge and experience of medical experts is of great value in questions of insanity.” Equally strong are the utterances of the Court of Appeals of West Virginia and the Supreme Court of North Carolina ([322]).

Where the point in question is the sanity of a person, the opinion of a medical man on the subject is, of course, admissible when that opinion is drawn from personal observation. This is the rule both in England and the United States ([323]). But a medical man may also give his opinion on this subject, even though he has no knowledge of the person whose sanity is in question ([324]). It has been suggested, that when a physician is asked his opinion on the facts stated by other witnesses, he should be first examined as to the particular symptoms of insanity; and as to whether all or any, and which of the circumstances spoken of by the witnesses upon the trial are to be regarded as |125| such symptoms; then inquire of him whether any and what combination of these circumstances would, in his opinion, amount to proof of insanity ([325]).