Evening public ledger. [volume] (Philadelphia [Pa.]) 1914-1942, 1922-05-15
DR.. DANIEL J. MCCARTHY
On the Medical Expert and the Law

VI TITO "eoICal 6xPeVt anu INC Law
TNHE law does not always take full ad-
L. vantage of the possibilities Of expert
testimony, especially that Of physicians, in
ascertaining the whole truth. according to
DR.. Daniel J. Mccarthy. professor Of medi-
cal jurisprudence at the University OF
Pennsylvania.
"The misunderstanding as to expert tes-
timony IN general and medical expert testi-
mony in particular" said DIR. Mccarthy,
''is due to the fact that most persons do
not realize that the expert is testifying not
as to facts. but az to opinions. A fact Is
fact, and a man either lies about It or he
docs not; but two men may have dlametri-
cally opposite opinions about the same epi-
sode or condition A biased opinion may be
determined by sympathy. or for certain
selfish reasons, or because he is retained and
paid by one side. or because he is drawn
into battle between two sides as IL sort of
sporting proposition.
Why Testimony Is Biased
''Most frequently testimony is biased be-
cause the experts retained by either side
have only the biased side of the case pre-
sented to them before the trial, and they
are, therefore. uncOnsciOusly influenced rs
to the right of the case and have only Il
single angle Of view. The difficulty of this
situation Is that If one starts with biased
or, more properly, an incorrect angle of
lodge this false angle than it would to create
a proper viewpoint II the case were pre-
sented as whole. The mere fact that the
expert is testifying to an opinion based upon
whole series of facts or near facts gives
him much leeway In forming an opinion
that it would appear to an independent OBJ
server that one of the two experts must be
lying. when, as n matter of fact. both might
be honest in the opinions expressed
"And then there is the difficulty of telling
the entire truth in such matters in answer
to questions. II an expert witness, as
have done myself. after long examination
and cross examination, feeling that ns the
result OF the question and answer method
an incomplete or false impression was
being created in favor Of the side by which
I was retained, and was not scientifically
correct, proffers, as ] did on my own ac-
count, a statement to cucdatc or correct
the matter It excites the ire Of the attorney
to such an extent that upon this one occa-
sion In my own experience he refused to
pay my bill.
Experts and Legal Procedure
'.The Court was also unsympathetic to
such procedure. Judge Of the type of
Judge Sulzberger would have insisted on his
own account for such clucidation. and many
other Judges also take this method to get n
complete opinion.
''But most casual experts are not suff-
ciently conversant with legal procedure to
incomplete but which they do not know
how to- correct on account of this lack of
legal knowledge.
'"Thc Hypothetical question, while assumed
to contain all the essential facts in regard to
the case. rarely II ever does so. 1t is formed
by the attorney for his side, and formed in
such way as to elicit an opinion in fnyor
of his side OF the case. The same series NJ
facts, arranged by the opposite side. would
obtain from the same expert an oppositc
opinion.
"The vast majority Of medical experts will
tell the truth and the whole truth under
proper cross examination. and failure TO
Obtai in this Is due to lack Of detailed medi-
cal knowledge on the part Of the cross
examining attorney. II he had n consulting
medical expert at his side. one who was NOT
testifying IN the case. he could practically
always. with medical expert witness. cot a
complete and scientifically truthful state.
ment.
The Dangerous "Expert''
"This Is true Of the expert who is a man
OF eminent position In the practice of mcdi-
cine and who testifes in court only occo
sonally and incidentally. The dangerous
expert Is the one who appears in court n
great deal and who lives largely BY his ex
pert work. lie has to please the LAWYERS on
his side Of the case and Is. therefore, dis.
posed to stretch his opinion beyond the
strictly scientific and truthful point
"The INSCRIPTIONS attorney will ALWAYS
take advantage OF such so called experts,
and Ia equally responsible with him for tbc
results Of such testimony, although he is
the first 20 condemn sxpsrt testimony In tho
! public prints and elsewhere.
Z THE other danger is the man of this type
II