It's medical malpractice trial.
Here in New York.
The defense has just finished questioning their medical expert.
As expected, their medical expert argues that the doctor who was sued did nothing wrong.
As expected, this expert claims even if the doctor did something wrong, it did not cause or contribute to the patient's injuries.
Likewise, he also argues that even if the doctor did something wrong causing injury, her injuries really are not as bad as she claims them to be.
When the defense lawyer finishes questioning his medical expert, I now have an opportunity to cross examine him.
In preparation for this malpractice trial, I did extensive research and determined that the defense's medical expert is well published in this field of medicine.
As part of my research, I read everything this expert wrote. I needed to know if any of his articles or book chapters were directly related to issues in our case. It turns out, the doctor wrote a very extensive chapter in a very prestigious medical textbook that was right on point with our case.
However, some of the statements this doctor made in his own chapter contradict the positions that he took in this case.
That made for excellent material to cross-examine this expert.
Here are the doctor's own words.
In his chapter he addresses the exact issues present in our case.
Some of his comments do not favor our position.
On the other hand, some of his comments do.
Can I use his own writings to cross-examine him and show the jury that he is talking out of both sides of his mouth?
In other words, can I use his book chapter to show to the jury that this expert is not being truthful when discussing whether the doctor violated the basic standards of medical care here?
You should know that in New York in order for me to question a physician on cross examination with a textbook, I must first get the doctor to admit and acknowledge that the textbook is authoritative.
The problem with that is that every doctor has been trained by their attorney to simply respond that no textbook is authoritative.
The rationale is that by the time something actually gets published a year or two may have gone by and that material would now be out of date.
The does present a logical argument to the jury about why the doctor claims a textbook is not authoritative.
They will also argue that a peer reviewed journal or article is a better resource since there is less of a lag time to publish it from when it was originally done.
If the doctor says that a textbook is not authoritative, I cannot open up to a certain page to see whether the doctor agrees with it.
I can however grab a stack of 10 or 20 medical textbooks, all of which are used regularly by doctors-in-training, medical students, residents, attending physicians & professors to teach medicine. Holding up one textbook after the next, I can show the jury that the doctor refuses to acknowledge that any of these massive textbooks are authoritative.
What happens though where an expert has written an entire chapter that appears in another person's textbook?
Can I get the doctor to admit that his own chapter is authoritative?
You would expect that if a doctor author's his own chapter, that he would admit and recognize his writings are authoritative. However, because doctors are aware that once they admit something is authoritative, it can immediately be used against them and taken out of context.
“Doctor, you have written a chapter in this well respected medical textbook, correct?”
“Doctor, do you consider your chapter to be authoritative on this subject?”
“No I do not.”
Most people who hear that will do a double take and wonder how that could possibly be.
The doctor will give some excuse and claim that by the time his chapter appears in this textbook, it is already out of date.
“Doctor, would you agree that your chapter on this medical topic is authoritative while still giving you the right to object to certain portions that you believe are out of date?”
What this question is designed to do is to get the doctor to admit and acknowledge that his material is authoritative and relied upon by other physicians in his field of medicine. It's also designed to allow him the opportunity to still raise an objection if he believes something is inaccurate or taken out of context.
Even if the doctor does not admit his chapter is authoritative, there still may be a few different ways to use his own writings to contradict testimony he has already given in our case.