Litigation Tactics: Using Medical Literature to Your Advantage

Authored by Laura Wibberley

Medical literature is a powerful tool in medical malpractice cases. Not only can reviewing medical articles, treatises, and journals increase your knowledge of the relevant medical issues involved in your case, it can also be strategically used with expert witnesses. Literature can support an expert’s opinion and can also impeach an expert witness’s testimony.

Expert witnesses are a critical component in medical malpractice cases. Expert testimony is typically required because the medicine at issue is complex and often outside the scope of an average juror’s understanding. As a result, expert witnesses are needed to establish the applicable standard of care and the deviation.

Experts can discuss medical literature in the direct examination at trial for the purpose of explaining the basis for their opinion. The Illinois Supreme Court adopted Rules 703 and Rule 705 of the Federal Rules of Evidence to allow expert witnesses to discuss otherwise inadmissible facts or data, such as medical articles and textbooks. See Wilson v. Clark, 84 Ill. 2d 186, 196 (1981). However, the information within the medical literature itself cannot be used as substantive evidence. Id. In addition, any hearsay objections should not be sustained. The medical literature is not offered for its truth, but only to sole support an expert’s opinions. As such, experts can discuss relevant medical articles and studies, as long as they help the experts form their opinions. An expert opinion that is supported by relevant and authoritative medical literature can be a powerful selling point to a jury.

A skilled attorney can also use medical literature to impeach an opposing expert witness’s testimony. If an opposing expert’s opinion contradicts a relevant medical treatise or article, an attorney may use that treatise or article as part of the cross-examination. If used effectively, the articles can cast significant doubt upon an opposing expert’s testimony during cross-examination.

The Illinois Appellate Court confirmed that before using medical literature with expert witnesses, attorneys must lay the foundation of the article and confirm its reliability. Stapleton ex rel. Clark v. Moore, 403 Ill. App. 3d 147, 158 (1st Dist. 2010). This can be accomplished by 1) the trial court taking judicial notice of the author’s competence; 2) the adverse expert witness admitting the author’s competence; or 3) the cross-examiner establishing the author’s competence by using a witness with expertise in the subject matter. Id. at 160.

The foundation is first laid at the deposition of the opposing expert witness. Attorneys should ask experts for their opinion about authoritative and reliable authors.  Adverse expert witnesses do not have to admit that a particular author or text is “authoritative.” Bowman v. Univ. of Chi. Hosp., 366 Ill. App. 3d 577, 587 (2006). Rather, the reliability element is satisfied if the adverse expert witness agrees that the author is “well-respected,” or a “good source.” Id. This provides some leeway with your questioning.

The trial judge will determine how much medical literature can be used. In Fragogiannis, the plaintiff’s counsel used a medical text manual in the cross-examination of opposing experts and read portions directly from the manual. Fragogiannis v. Sisters of St. Francis Health Servs., 2015 IL App (1st) 141788, ¶ 29. Notably, defense counsel did not make an objection about improper impeachment. Id. In determining whether a reversal was warranted, the court found there is no “blanket prohibition” on counsel reading medical literature in cross-examination. Id. at ¶ 29.  However, such a line of questioning was “less than ideal.” Id. It also emphasized that medical literature cannot be used as substantive evidence. Id. at ¶ 27. Importantly, both the plaintiff’s and defense’s experts found the specific medical manual authoritative. Id. at ¶ 28. They only disagreed about the uniformity and applicability of the methods discussed within the manual. Id. Further, Defense counsel rehabilitated the expert witnesses by giving them the opportunity to respond and explain their opinions in light of the medical literature. Id. at ¶ 31. Therefore, while medical treatises and articles can be used at cross-examination, the scope and use of the literature rest within the trial court’s discretion.

Therefore, attorneys should be aware of the applicable medical literature in the context of their cases because they can change the tide of a case in medical malpractice litigation.

About the Author:

Wibberley_178pxSqLaura Wibberley was recently admitted to practice law in the state of Illinois. She concentrates her practice in the areas of medical malpractice and health care defense. Laura received her J.D. from The John Marshall Law School in 2017, where she graduated Valedictorian and summa cum laude.  While in law school, Laura was a student publications editor of the John Marshall Law Review and an associate justice board member of the Moot Court Honor Society. She received the CALI award in Evidence, Civil Procedure, and Contracts. She previously externed with The Honorable Robert E. Gordon of the First District Appellate Court of Illinois where she assisted with the research and drafting of several published opinions. Prior to law school, Laura worked as a senior paralegal for the Chicago Transit Authority in the civil litigation division where she actively participated in over twenty jury trials.

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