New Hampshire Association of Justice May 2011 CLE - Learning The Medicine: The Best Resources
A. Medical Websites
1. Basics:
a. Definitions, abbreviations, acronyms:
Medilexicon: http://www.medilexicon.com
MedlinePlus: http://www.nlm.nih.gov/medlineplus/mplusdictionary.html
b. Understanding lab tests and results:
Lab Tests online: www.labtestsonline.org
c. Anatomy:
The Virtual Autopsy: http://www.le.ac.uk/pathology/teach/va/anatomy/frmst.html
Netter Images: www.netterimages.com
Google Images: http://www.google.com/imghp
d. Health Topics:
MedlinePlus: http://www.nlm.nih.gov/medlineplus/healthtopics.html
eMedicine: http://emedicine.medscape.com
CDC: http://www.cdc.gov
Web MD: http://webmd.com
Mayo Clinic: http://mayoclinic.com/health-information
Medifocus: www.medifocushealth.com/diseases-and-conditions.php
2. Information for Health Care Providers:
UpToDate (subscription required): http://www.uptodate.com/patients/index.html
PubMed: http://www.ncbi.nlm.nih.gov/pubmed
3. Drug Information:
PDR: http://www.pdrhealth.com/home/home.aspx
4. Medical Literature:
MedMalRX (standards of care and clinical guidelines): http://medmalrx.com
AMA Journal: www.ama-assn.org/ama/pub/medical-journals.page
Google Scholar (internet search): http://scholar.google.com
PubMed: http://www.ncbi.nlm.nih.gov/pubmed
NGC: http://www.guidelines.gov
5. Surgical Videos:
Medline Plus: http://www.nlm.nih.gov/medlineplus/surgeryvideos.html
OR Live: http://www.orlive.com
Laparoscopic videos: http://www.websurg.com/homepage
6. Healthcare provider information:
a. Physician credentials verification:
NOAH: http://www.noah-health.org/en/usmd/state.html
ABMS: http://www.boardcertifieddocs.com/abms/static/home.htm
N.H. Board of Medicine: http://www.nh.gov/medicine/index.htm
b. Nurse credential verification:
NCSBN: https://www.nursys.com/NLV/TermsConditionsNLV.aspx
HealthGuide: http://www.healthguideusa.org/state_nursing_boards.htm
c. Physician finder:
Doc Board: http://www.docboard.org/aim
Directory of State Boards: http://www.fsmb.org/directory_smb.html
AMA: https://extapps.ama-assn.org/doctorfinder/recaptcha.jsp
Internet search: http://www.zabasearch.com
7. Coding and Pricing for Medical Services:
ICD: http://www.icd9data.com
NH price point: http://www.nhpricepoint.org
B. Deposing and Examining the Defense Expert
I. Admissibility of Expert Testimony:
Rule 702 of the New Hampshire Rules of Evidence (NHRE) permits the introduction of testimony by experts in the form of opinions, if scientific, technical, or other specialized knowledge will assist the trier of fact in determining a fact in issue and the witness is qualified as an expert by knowledge, skill, experience, training or education. The determination of whether expert testimony is admissible under Rule 702 rests within the sound discretion of the trial court. State v. Cressey, 137 NH 402 (1993). The underlying issue as to the admissibility of expert testimony is whether it will enhance the jury’s search for the truth. State v. Enderson, 148 NH 252 (2002). In order to meet that standard for admissibility, the expert witness must be sufficiently qualified to advance the jury’s understanding and determination of the facts in issue (Goudreault v. Kleeman, 458 NH 236 (2009)), and the testimony must be reliable (State v. Dahood, 143 NH 471 (1999)).
II. Expert Qualifications:
An expert’s qualifications must be determined on a case-by-case basis. State v. Pelletier,149 NH 243 (2003). There is no per se rule regarding qualifications of an expert. Thus, the lack of specialization by a physician in a particular specialty does not automatically disqualify him/her from testifying as an expert in that field. Id. The New Hampshire Supreme Court has made the following rulings regarding expert qualifications based upon the facts in specific cases:
1. A general and vascular surgeon was not qualified to testify regarding the plaintiff’s neurological impairment or whole person impairment, Figlioli v. R. J. Moreau Companies, Inc., 151 NH 618 (2005);
2. An obstetrician was permitted to testify as to causation regarding nerve injuries rising from shoulder dystocia in a delivery, O’Donnell v. HCA Health Services of New Hampshire, 152 NH 608 (2005);
3. An ophthalmologist was permitted to testify regarding the standard of care for emergency room physicians, Hodgdon v. Frisbie Memorial Hospital, 147 NH 286 (2001);
4. Excluded testimony of a pharmacologist regarding the standard of care for an ophthalmologist Bissette v. Renna, 142 NH 788 (1988);
5. Permitted a family practitioner to testify regarding a matter ordinarily within the purview of a gynecologist State v. Pelletier,149 NH 243 (2003); and
6. Upheld the exclusion of a nurse practitioner’s testimony regarding the standard of care for inpatient detoxification criteria and the cause of mental illness, Smith v. HCA Services d/b/a Portsmouth Regional Hospital, 159 NH 158 (2009).
III. Reliability:
New Hampshire previously followed the “general acceptance” test established in Frye v. U.S. 239 F. 1013 (D.C Cir. 1923). That test held that in order to be admissible, an expert opinion must have gained general acceptance in its field. However, the New Hampshire Supreme Court adopted the U.S. Supreme Court’s “more flexible standard of reliability” enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) inBaker Valley Lumber, Inc. v. Ingersol-Rand Company 148 NH 609 (2002).
Pursuant to that standard, the trial court acts as a “gatekeeper” to ensure the reliability of expert opinions. In undertaking this task, the court may consider the four factors outlined in Daubert (capability of testing methodology, whether subjected to peer review, the error rate, and general acceptance). Id at 616. However, the court in Baker Valley stressed that in no case should such factors be based upon the credibility or weight the court attributes to an expert’s conclusions. Id.
RSA 516:29-a (Testimony of Expert Witnesses) codifies some of the Daubert and Baker Valley standards of reliability. In Baxter v. Temple, 157 NH 280 (2008), the New Hampshire Supreme Court emphasized that a trial court’s role as gatekeeper is to ensure a methodology’s reliability, such that scientific knowledge need not be absolute or irrefutable to be admissible, and that unless the methodology underlying an expert’s testimony is so flawed or skewed as to render it unreliable, a jury should be permitted to assess the expert’s conclusions. Id at 287.
IV. Cross-examination:
(a) Broad Discovery
The Superior Court Rules provide for broad discovery. Rule 35(b)(1) allows
discovery:
Regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action…it is not grounds for
objection that the information sought will be inadmissible at trial if
the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
Rule 35(b)(3)(a)(i) permits a party to obtain the identity, subject matter of expected testimony, substance of facts and opinions and summary of the grounds for each opinion of an opposing party’s experts. Although expert interrogatories remain a method of discovery, it has become more common for discovery relating to experts to be gathered pursuant to the trial court structuring conference order and expert disclosure provided by either Rule 35(f), or RSA 516:29-b.
(b) Impeachment:
Cross-examination permits the fact-finder to observe potential deficiencies in an expert’s testimony and opinions. Welsh v. HP Hood and Sons, 104 NH 207 (1962). An expert’s credibility and the weight to be accorded to that expert’s opinions are the province of the fact-finder. See Goudreault v. Kleeman, 458 NH 236 (2009). Cross-examination is the means for testing the basis for an expert’s opinion, Baker Valley supra at 615 - 616.
To impeach is to “challenge or discredit; attack.” The American Heritage Dictionary, 2nd College Edition. The partiality of a witness is always relevant as discrediting a witness and affecting the weight of that witness’s testimony. State v. Miller, 155 NH 246, 255-256 (2009) citing Davis v. Alaska, 415 US 308, 316 (1974). An expert’s qualifications and license is another legitimate area of inquiry on cross-examination. Challis v. Lake, 71 NH 90 (1901); Smith v. HCA Services, 159 NH 158 (2009); Figlioli v. R. J. Moreau, 151 NH 618 (2005).
(c) Prior Bad Acts (NHRE 608(b)):
In the discretion of the trial court, specific instances of a witness’s conduct (if probative of truthfulness or untruthfulness) may be inquired into on cross-examination. New Hampshire Rule of Evidence 608(b). However, the examiner must take the answer as given by the witness, because extrinsic evidence is not permitted to rebut such testimony. State v. Kelly, 160 NH 190, 200 (2010).
(d) Prior Inconsistent Statements (NHRE 613):
An expert witness may be impeached through the use of prior inconstant statements. Such statements need not be disclosed to the witness prior to questioning, but upon request, shall be shown to opposing counsel. NHRE 613(c). Although the witness must be afforded the opportunity to explain or deny such statements, extrinsic evidence of those statements is permitted. NHRE 613(b).
(e) Preparation:
Preparation is key in preparing to examine an expert. It is important to be thorough in one’s review of pertinent information. Such information includes not only the details of the medical record and other facts at issue, but also the witness’s publications, his/her prior deposition testimony, the authoritative medical or other literature on point, and any disciplinary history by a licensing body.
Reis Law, PLLC
66 Hanover St. Suite 203
Manchester, NH 03101
Ph: 603-792-0800
A. Medical Websites
1. Basics:
a. Definitions, abbreviations, acronyms:
Medilexicon: http://www.medilexicon.com
MedlinePlus: http://www.nlm.nih.gov/medlineplus/mplusdictionary.html
b. Understanding lab tests and results:
Lab Tests online: www.labtestsonline.org
c. Anatomy:
The Virtual Autopsy: http://www.le.ac.uk/pathology/teach/va/anatomy/frmst.html
Netter Images: www.netterimages.com
Google Images: http://www.google.com/imghp
d. Health Topics:
MedlinePlus: http://www.nlm.nih.gov/medlineplus/healthtopics.html
eMedicine: http://emedicine.medscape.com
CDC: http://www.cdc.gov
Web MD: http://webmd.com
Mayo Clinic: http://mayoclinic.com/health-information
Medifocus: www.medifocushealth.com/diseases-and-conditions.php
2. Information for Health Care Providers:
UpToDate (subscription required): http://www.uptodate.com/patients/index.html
PubMed: http://www.ncbi.nlm.nih.gov/pubmed
3. Drug Information:
PDR: http://www.pdrhealth.com/home/home.aspx
4. Medical Literature:
MedMalRX (standards of care and clinical guidelines): http://medmalrx.com
AMA Journal: www.ama-assn.org/ama/pub/medical-journals.page
Google Scholar (internet search): http://scholar.google.com
PubMed: http://www.ncbi.nlm.nih.gov/pubmed
NGC: http://www.guidelines.gov
5. Surgical Videos:
Medline Plus: http://www.nlm.nih.gov/medlineplus/surgeryvideos.html
OR Live: http://www.orlive.com
Laparoscopic videos: http://www.websurg.com/homepage
6. Healthcare provider information:
a. Physician credentials verification:
NOAH: http://www.noah-health.org/en/usmd/state.html
ABMS: http://www.boardcertifieddocs.com/abms/static/home.htm
N.H. Board of Medicine: http://www.nh.gov/medicine/index.htm
b. Nurse credential verification:
NCSBN: https://www.nursys.com/NLV/TermsConditionsNLV.aspx
HealthGuide: http://www.healthguideusa.org/state_nursing_boards.htm
c. Physician finder:
Doc Board: http://www.docboard.org/aim
Directory of State Boards: http://www.fsmb.org/directory_smb.html
AMA: https://extapps.ama-assn.org/doctorfinder/recaptcha.jsp
Internet search: http://www.zabasearch.com
7. Coding and Pricing for Medical Services:
ICD: http://www.icd9data.com
NH price point: http://www.nhpricepoint.org
B. Deposing and Examining the Defense Expert
I. Admissibility of Expert Testimony:
Rule 702 of the New Hampshire Rules of Evidence (NHRE) permits the introduction of testimony by experts in the form of opinions, if scientific, technical, or other specialized knowledge will assist the trier of fact in determining a fact in issue and the witness is qualified as an expert by knowledge, skill, experience, training or education. The determination of whether expert testimony is admissible under Rule 702 rests within the sound discretion of the trial court. State v. Cressey, 137 NH 402 (1993). The underlying issue as to the admissibility of expert testimony is whether it will enhance the jury’s search for the truth. State v. Enderson, 148 NH 252 (2002). In order to meet that standard for admissibility, the expert witness must be sufficiently qualified to advance the jury’s understanding and determination of the facts in issue (Goudreault v. Kleeman, 458 NH 236 (2009)), and the testimony must be reliable (State v. Dahood, 143 NH 471 (1999)).
II. Expert Qualifications:
An expert’s qualifications must be determined on a case-by-case basis. State v. Pelletier,149 NH 243 (2003). There is no per se rule regarding qualifications of an expert. Thus, the lack of specialization by a physician in a particular specialty does not automatically disqualify him/her from testifying as an expert in that field. Id. The New Hampshire Supreme Court has made the following rulings regarding expert qualifications based upon the facts in specific cases:
1. A general and vascular surgeon was not qualified to testify regarding the plaintiff’s neurological impairment or whole person impairment, Figlioli v. R. J. Moreau Companies, Inc., 151 NH 618 (2005);
2. An obstetrician was permitted to testify as to causation regarding nerve injuries rising from shoulder dystocia in a delivery, O’Donnell v. HCA Health Services of New Hampshire, 152 NH 608 (2005);
3. An ophthalmologist was permitted to testify regarding the standard of care for emergency room physicians, Hodgdon v. Frisbie Memorial Hospital, 147 NH 286 (2001);
4. Excluded testimony of a pharmacologist regarding the standard of care for an ophthalmologist Bissette v. Renna, 142 NH 788 (1988);
5. Permitted a family practitioner to testify regarding a matter ordinarily within the purview of a gynecologist State v. Pelletier,149 NH 243 (2003); and
6. Upheld the exclusion of a nurse practitioner’s testimony regarding the standard of care for inpatient detoxification criteria and the cause of mental illness, Smith v. HCA Services d/b/a Portsmouth Regional Hospital, 159 NH 158 (2009).
III. Reliability:
New Hampshire previously followed the “general acceptance” test established in Frye v. U.S. 239 F. 1013 (D.C Cir. 1923). That test held that in order to be admissible, an expert opinion must have gained general acceptance in its field. However, the New Hampshire Supreme Court adopted the U.S. Supreme Court’s “more flexible standard of reliability” enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) inBaker Valley Lumber, Inc. v. Ingersol-Rand Company 148 NH 609 (2002).
Pursuant to that standard, the trial court acts as a “gatekeeper” to ensure the reliability of expert opinions. In undertaking this task, the court may consider the four factors outlined in Daubert (capability of testing methodology, whether subjected to peer review, the error rate, and general acceptance). Id at 616. However, the court in Baker Valley stressed that in no case should such factors be based upon the credibility or weight the court attributes to an expert’s conclusions. Id.
RSA 516:29-a (Testimony of Expert Witnesses) codifies some of the Daubert and Baker Valley standards of reliability. In Baxter v. Temple, 157 NH 280 (2008), the New Hampshire Supreme Court emphasized that a trial court’s role as gatekeeper is to ensure a methodology’s reliability, such that scientific knowledge need not be absolute or irrefutable to be admissible, and that unless the methodology underlying an expert’s testimony is so flawed or skewed as to render it unreliable, a jury should be permitted to assess the expert’s conclusions. Id at 287.
IV. Cross-examination:
(a) Broad Discovery
The Superior Court Rules provide for broad discovery. Rule 35(b)(1) allows
discovery:
Regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action…it is not grounds for
objection that the information sought will be inadmissible at trial if
the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
Rule 35(b)(3)(a)(i) permits a party to obtain the identity, subject matter of expected testimony, substance of facts and opinions and summary of the grounds for each opinion of an opposing party’s experts. Although expert interrogatories remain a method of discovery, it has become more common for discovery relating to experts to be gathered pursuant to the trial court structuring conference order and expert disclosure provided by either Rule 35(f), or RSA 516:29-b.
(b) Impeachment:
Cross-examination permits the fact-finder to observe potential deficiencies in an expert’s testimony and opinions. Welsh v. HP Hood and Sons, 104 NH 207 (1962). An expert’s credibility and the weight to be accorded to that expert’s opinions are the province of the fact-finder. See Goudreault v. Kleeman, 458 NH 236 (2009). Cross-examination is the means for testing the basis for an expert’s opinion, Baker Valley supra at 615 - 616.
To impeach is to “challenge or discredit; attack.” The American Heritage Dictionary, 2nd College Edition. The partiality of a witness is always relevant as discrediting a witness and affecting the weight of that witness’s testimony. State v. Miller, 155 NH 246, 255-256 (2009) citing Davis v. Alaska, 415 US 308, 316 (1974). An expert’s qualifications and license is another legitimate area of inquiry on cross-examination. Challis v. Lake, 71 NH 90 (1901); Smith v. HCA Services, 159 NH 158 (2009); Figlioli v. R. J. Moreau, 151 NH 618 (2005).
(c) Prior Bad Acts (NHRE 608(b)):
In the discretion of the trial court, specific instances of a witness’s conduct (if probative of truthfulness or untruthfulness) may be inquired into on cross-examination. New Hampshire Rule of Evidence 608(b). However, the examiner must take the answer as given by the witness, because extrinsic evidence is not permitted to rebut such testimony. State v. Kelly, 160 NH 190, 200 (2010).
(d) Prior Inconsistent Statements (NHRE 613):
An expert witness may be impeached through the use of prior inconstant statements. Such statements need not be disclosed to the witness prior to questioning, but upon request, shall be shown to opposing counsel. NHRE 613(c). Although the witness must be afforded the opportunity to explain or deny such statements, extrinsic evidence of those statements is permitted. NHRE 613(b).
(e) Preparation:
Preparation is key in preparing to examine an expert. It is important to be thorough in one’s review of pertinent information. Such information includes not only the details of the medical record and other facts at issue, but also the witness’s publications, his/her prior deposition testimony, the authoritative medical or other literature on point, and any disciplinary history by a licensing body.
Reis Law, PLLC
66 Hanover St. Suite 203
Manchester, NH 03101
Ph: 603-792-0800