Law and Medicine:

-Birdy

The use of medicine in legal contexts to determine whether a person has been injured by the act of another, the extent of such an injury and its treatment, and whether a defendant was physically or emotionally capable of committing a crime or tort and in related ethical and philosophical contexts to determine when life begins (in the abortion debate) or how one evaluates “quality of life” (the euthanasia debate).

Definitions:

compensable injury: an injury for which damages may be awarded

competency: the capacity to understand and act reasonably under given circumstances

diminished capacity: partial insanity; a legal determination that a defendant does not have the ability to achieve the state of mind required to commit a crime

DNA testing: a technique for identifying a person based on matching unique gene-bearing proteins (deoxyribonucleic acid, or DNA) from an organic sample taken from that person (such as hair, blood, or tissue) with another organic sample retrieved from the scene of a crime

emotional distress: damage to a plaintiff’s emotional state caused by fear, anger, anxiety, stress, depression, or other negative emotions; such damage may be judged “compensable,” or deserving of material compensation

euthanasia: the act of putting a person or other living being to death in order to end incurable pain or disease; popularly called “mercy killing”

forensic: having to do with a court of justice; forensic medicine and its various subspecialties apply medical science to the purposes of the law

insanity: a mental disease or defect that renders a person incapable of appreciating the wrongfulness of certain acts or of conforming to the requirements of the law

tort: a wrongful act for which civil courts, rather than criminal courts, are empowered to render justice

Medicine in Legal and Ethical Debates

Medicine as it relates to law is referred to as forensic medicine. Forensic medicine plays a part in three basic areas of the law. The first two involve the practical application of medicine in civil law and in criminal law. The third area involves the use of medical science to help in defining philosophical or ethical issues, such as when life begins and ends. Ethics in medicine, also called bioethics, refers to a set of moral standards and a code for behavior that govern people’s interactions with one another and with society. 

Bioethics deals with moral issues and problems that have arisen as a result of modern medicine and research. Bioethical principles focus on autonomy (self-determination), beneficence (doing good), nonmaleficence (avoiding evil), and justice (the fair distribution of scarce resources).

In a civil case, a private party, the plaintiff, files a complaint in court against another party, the defendant, requesting that a judge or a jury settle a dispute between the two parties. A party to a civil suit can be an individual, a corporation, an association, a government organization, or any other group. A civil suit differs from a criminal case in that neither party is claiming that a crime (such as theft, kidnapping, or murder) was committed and that someone should be put in jail. Instead, the plaintiff in a civil suit is asking that the defendant pay some amount of money to the plaintiff to compensate for damages that the plaintiff has suffered because of something the defendant did.

In a criminal case, however, the state or federal government, on behalf of “the people,” files a complaint with the court claiming that the defendant committed a crime, and the government seeks to have a judge or a jury determine the guilt or innocence of that defendant. If the defendant is determined to be guilty, the judge has the authority to punish the defendant, usually by imposing a fine, by requiring community service, by setting a jail sentence, or ultimately, in some states, by having the defendant put to death.

In both civil and criminal cases, medical science is called upon to provide evidence that can be used to prove or disprove a party’s case. In a civil case, the parties will often resort to medical experts to determine the extent of a plaintiff’s mental and physical injuries. These experts are doctors who act as witnesses in their areas of expertise and testify in a court of law. For example, a plaintiff in a civil suit might claim that he or she was born with birth defects as a result of drugs that the mother had taken during pregnancy and may present evidence of that injury and its cause by the testimony of doctors and medical research experts specializing in those related areas of medicine. Such testimony would be presented to the jury to show that the plaintiff’s claim of birth defects being caused by such a drug is supported by medical research.

As medical science reveals more about the causes of disease, injuries, and the workings of the body, more distinct specialties have been created. This trend is reflected in the increasing number of expert witnesses: At the beginning of the twentieth century, a general practitioner was considered qualified to testify on most areas of medicine; today, the courts require expert witnesses to be specifically qualified in the area of medicine about which they testify.

The practice of using highly qualified and specialized doctors as expert witnesses has long been accepted by courts as an effective way to educate a jury regarding the extent, cause, and treatment of the injury in question, but there are some limitations on the use of such testimony. In order for the court to allow a medical expert to testify as to specific facts from which conclusions are to be drawn, the facts must be outside what is considered to be the general or common knowledge of a lay jury. For example, a court may not allow a party to use a medical expert to explain sprained ankles. The court would, however, allow a medical expert to explain toxic shock syndrome, because the existence, causes, and effects of that impairment are not common knowledge. The reasoning behind this limitation is that the jury members are supposed to form their own opinions when such opinions do not involve or require specialized knowledge. Only when it is necessary or helpful to the jury to be educated in a specialized area of knowledge is expert testimony usually allowed. In contrast to a lay witness, an expert witness is permitted to testify about the ultimate issue in the case. The medical expert in an accident case, for example, may testify about causation: whether the accident caused the injury that is the subject of plaintiff’s lawsuit. Lay witnesses are not permitted to testify along these lines because they do not have the expertise to do so.

The court also recognizes a distinction between testimony from a medical expert and testimony from the plaintiff’s treating doctor. Whereas the former educates the jury regarding an area of medicine that is relevant to the case, the latter does not. Instead, the treating doctor is called to testify to actual events or facts of the case that the doctor personally witnessed: that the plaintiff was examined on a certain date, the extent of his or her injuries, and so on. Thus, although an expert witness may not be allowed by the court to educate the jury on the subject of a sprained ankle or other topic of common knowledge, the fact that the plaintiff sustained a sprained ankle and was treated for it may be testified to by the treating doctor.

In a civil suit, the plaintiff must prove that he or she was injured by some act of the defendant. That injury can be economic (the loss of property or money), physical (such as a torn muscle or broken leg), or mental (stress or anxiety). Over the years, more and more types of injuries have become recognized as compensable injuries in civil cases. The term “pain and suffering” has been used to describe physical and emotional symptoms that a plaintiff may claim were caused by the defendant. Medical facts can help determine the existence and extent of all these types of injury.

Sometimes the expert will testify only hypothetically. In the hypothetical question, the expert may be asked to render an opinion based on certain assumptions concerning a hypothetical case that closely resembles the case at bar. The hypothetical question provides an opportunity for counsel to summarize his or her client’s position. Sometimes, however, a medical expert will need to examine a plaintiff. It is not unusual for such examinations to take place years after the injury occurred, and the doctor will have to determine whether the injury exists, the extent of the injury, the cause of the injury, what (if any) limitations are caused by the injury, the treatment that is indicated, and the probable duration of the injury (perhaps based on the average rate of recovery for such an injury).

In the criminal justice system, medical experts may testify on a variety of scientific and medical issues. In the case of a murder, for example, it may be necessary to identify blood, tissue, bone, or some other human remains and to determine the source of those remains namely, whether the remains belong to the alleged victim or perpetrator of the crime. Doctors who specialize in forensic medicine are often called upon to conduct special tests, such as DNA testing, to identify whose blood or tissue was found at the scene of a crime or on a murder weapon. Forensic experts can also determine the approximate time and cause of death. Testimony on these issues helps a jury determine the guilt or innocence of the accused.

Criminal cases occasionally also require the testimony of a forensic psychiatrist, who is an expert in mental and emotional disorders as they relate to legal principles. Testimony from such an expert assists in determining whether the defendant is “insane.” According to section 4.01 of the Model Penal Code, a person is insane if he or she “lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.” Not every state follows the Model Penal Code. Other variations of the insanity defense exist which deal with a person’s ability to distinguish right from wrong. Psychiatric evaluations of the accused are performed to determine whether the defendant fit this definition at the time the crime was committed. Testimony regarding the defendant’s insanity would significantly affect the case’s outcome and sentencing.

A separate issue, unrelated to the defendant’s mental condition at the time of the crime, is the defendant’s “competency” to stand trial. According to Black’s Law Dictionary (5th ed., 1979), a defendant “lacks competency to stand trial if he or she lacks capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in preparing his or her defense.” The law ensures that an accused person’s rights are protected by requiring that the defendant be capable of understanding these proceedings and their implications before he or she is allowed to stand trial. If either of the attorneys, or the judge, asserts that the defendant is not competent to stand trial, the court will hold a competency hearing to decide whether the defendant is “competent.” In determining the competency of the defendant, the court will hear the testimony of psychiatric experts. If the defendant is determined to be incompetent at the time of the trial, the defendant will not be tried but may instead be sent to a mental institution until such time as he or she is competent to stand trial.

In addition to being used in civil cases and criminal cases, medical science is used to provide scientific information to support or disprove wholly nonscientific determinations. Such philosophical and ethical issues include abortion and euthanasia. In the long-running debate over the legality of abortion, for example, many issues and circumstances come into play, including rape and the possibility that pregnancy may endanger the woman’s life. One central and hotly contested question, however, is “When does life begin?” This question may also involve an equally difficult and controversial one: “What is life?” The courts and various state legislatures have turned to medical science to address these profound, and possibly unanswerable, questions. Medical science has identified two key concepts to answer these questions: the concept of “viability” (that is, the ability of the fetus to survive outside the womb) and the distinction between the first, second, and third trimesters of a pregnancy. The distinction of trimesters was originally based on the concept of viability: A fetus generally could not survive outside the womb during the first trimester (that is, was not viable), while a fetus was generally considered viable during the third trimester. Thus, the courts and legislature would often use the concept of trimesters in determining a cutoff date after which an abortion could not be performed.

These concepts have been used as the basis for legislation to regulate and authorize abortions. Medical science is, however, a rapidly evolving field. Because it is now possible for a human egg, once fertilized, to become viable outside the womb, the legal foundation upon which abortions are based is becoming more unstable.

Another important area that has emerged from late twentieth and early twenty-first century technology concerns the use of human embryonic stem cells. Widely acknowledged as extremely valuable in assisting scientists in understanding basic mechanisms of embryo development and gene regulation, stem cell research holds the promise of enabling scientists to direct stem cells to grow into replacement organs and tissues to treat a wide variety of diseases. Embryos are valued in research for their ability to produce stem cells, which can be harvested to grow a variety of tissues for use in transplantation to treat serious illnesses such as cancer, heart disease, and diabetes.

The Applications of Medical Testimony

Medical experts in almost every field of medicine have played a part in civil cases, criminal cases, and controversies involving philosophical and ethical issues. Sometimes, the interaction between medicine and the law has spawned new medical or legal subspecialties. In fact, medical expert testimony has become a field and an occupation in itself, supporting an entire group of medical professionals to the exclusion of medical practice. This phenomenon has in large part occurred in response to the greater acceptance by the courts of medical expert testimony and the increased reliability of recent medical testing.

Personal injury cases afford a good example of all the different types of testimony that come into play in civil suits. A physical injury case, as the name suggests, is based on a physical (or mental) injury, as opposed to a purely financial injury, suffered by the plaintiff. A physical injury case may involve an automobile accident and its resulting injuries. In such a case, doctors who are experts in the field of muscle damage, neurology (for head and nerve injuries), orthopedic surgery, and countless other areas could be called as experts, depending on the extent of the injuries.

Another type of case, called a product liability case, will often use expert medical testimony. A product liability case is one in which a person has been injured by a specific product on the market and sues the manufacturer, and often the seller, claiming that the product was defective. Famous examples of product liability cases include claims filed against manufacturers of asbestos products, certain tampons (for causing toxic shock syndrome), contraceptive devices such as the Dalkon Shield, and some generic or prescription drugs, such as thalidomide and Halcion. All these cases required medical experts in recently developed fields of medicine. Prior to the product liability suits filed against some tampon manufacturers, no one had heard of toxic shock syndrome. The testimony of medical experts was required to prove a link between an allegedly defective product and the resulting injury that was claimed. Without expert medical testimony in these cases, it would be impossible to prove that the defective products caused the injuries of which the defendants complained.

Another example of the medical profession developing to suit the law is in the area of workers’ compensation. The California legislature, like the legislatures of many states, has established by statute (Labor Code section 3600 and following) a method by which to compensate any employee who has suffered a job-related injury. An employer is required by law to carry workers’ compensation insurance, which will compensate an injured employee. If an employee is injured on the job in any manner, that employee is supposed to file a claim notifying his or her employer of the injury. The claim is then submitted to the workers’ compensation insurance carrier. If the employer and the carrier accept liability, necessary treatment is provided to the employee. If the carrier denies further treatment or denies that an employee is disabled, the employee may file a claim with the Workers’ Compensation Appeal Board. Once such a claim is filed, a judge will review all the medical reports of the injured worker. Additional medical evidence and testimony may be introduced to prove or disprove the employee’s claim of injury or disability. The award of the Workers’ Compensation Appeal Board is determined by the medical condition of the person claiming the injury. The growing popularity of workers’ compensation has spawned an entire field of medicine, that of work-related injuries.

California courts routinely allow damages for “mental distress” in almost every type of tort action. Accordingly, psychiatrists and psychologists are routinely called upon to testify regarding whether a plaintiff has suffered such an injury. Emotional distress is not a specific medical condition, but rather a general emotional state, which may include anger, fear, frustration, anxiety, depression, and similar symptoms. Although psychiatric or psychological testimony is not required by the court for the plaintiff to recover damages for mental distress, it can be very effective in explaining to the jury the extent of the injuries and the effect of those injuries on the plaintiff’s future life.

If a jury determines that the plaintiff suffered a physical or mental injury caused by the defendant, then, based on the medical testimony of either the medical witness or the treating doctor the jury may award any medical fees incurred, as well as anticipated medical fees and costs and compensation for the pain and suffering of the defendant. The jury may also award further damages not related to the medical condition of the plaintiff, if the case warrants such damages.

In criminal cases, particularly cases of homicide, forensic medicine often provides the key and fundamental evidence upon which the entire case is based. During the investigations of the assassination of President John F. Kennedy in the 1960’s, the forensic evidence played a vital, although controversial, role. The testimony presented by the doctors who examined the president’s body was used to reconstruct the crime. Forensic science was used to interpret the angle of entry of the bullets that killed Kennedy and thereby to extrapolate the source of the shots. Furthermore, forensic science was called upon to demonstrate how many shots were fired and the paths of the bullets upon entering the bodies of the president and Governor John Connally. Using medical evidence, along with other evidence, the Warren Commission concluded that the bullets all came from the book depository building behind the presidential caravan. Also using medical evidence and experts, critics of the Warren Commission’s findings have alleged that the injuries suffered by the president could have been caused only by a bullet entering from the front of the president’s neck and exiting the rear of the skull.

In another case, forensic evidence was able to reach a conclusive determination that certain bones were those of the Nazi war criminal Dr. Josef Mengele, known as the Angel of Death. In 1992, forensics experts discovered, using a method known as DNA testing, that some bones retrieved from a grave in Brazil were those of Mengele. In order to make this determination, doctors compared the DNA found in the blood of Mengele’s son with DNA from the bones found in the grave. They found that the DNA from both sources was identical. Because DNA constitutes a “genetic fingerprint” that remains the same from parent to offspring, the doctors were able to conclude that the remains found in Brazil were those of Mengele.

DNA testing is now also commonly used in suits to determine the father of an infant. According to the Genetics Institute, DNA testing is at least 99.8 percent accurate. Medical science has so refined its ability to chart DNA “fingerprints” that the chance of coming upon two identical DNA patterns is approximately one in six billion. Prior to DNA testing, a blood testing method called human leukocyte antigen (HLA) typing was used to determine paternity, but this typing was only 95 percent accurate.

Some medical or scientific tests, while accepted by the courts, remain subject to much controversy. The Breathalyzer test, used to determine blood alcohol levels, is one such test. While the courts regularly accept the results of such tests to determine whether a suspect was intoxicated, the test is based on several assumptions and averages. Based on the alcohol content in the suspect’s breath, the test extrapolates a probable amount of alcohol in the suspect’s blood. The reliability of this test depends on the correct calibration of the equipment and the care of the person taking the readings. Since the tests are taken by nonmedical or nonscientific personnel in the field, mistaken readings are not uncommon. Furthermore, if the suspect used a spray breath freshener just before the test, the readings may be skewed, since such breath fresheners are usually alcohol-based.

Perspective and Prospects

Medicine has always played some role in the outcome of court cases, but this relationship did not come into full flower until relatively recently. In the early twentieth century, courts placed strict limitations on the type and amount of medical testimony allowed into evidence. Often, certain types of medical evidence were not admissible because the science was not deemed reliable there was too much room for error. The polygraph (lie detector), for example, could not be relied upon to reveal consistently whether a person was telling the truth, since it simply measured galvanic skin response, respiration rate, and other factors that only tend to be correlated with the subject’s feelings of guilt. Most other evidence presented by medical experts concerned the likelihood of events or outcomes and therefore usually constituted opinion, rather than fact.

With the advent of new technologies in the later part of the twentieth century, medical science began to present “hard” (more precise) data that became more frequently accepted by the courts as reliable and relevant evidence. Even so, it took some time before medical scientists were able to present enough data to persuade the courts that the evidence of such methods as DNA “fingerprinting” was truly reliable. The acceptance of DNA testing, for example, was a long and hard-fought battle among legions of medical experts on both sides of the issue. Finally, DNA testing was accepted by the courts as a reliable source of evidence. As forensic medicine advances, no doubt its contribution to the law will also advance. The ability of the medical and other scientific professions to determine reliable conclusions relating to court cases is progressing rapidly with increases in scientific knowledge, methods, and technology.

In an ironic twist, however, this progress has clouded other areas of the law. In the early twentieth century, for example, no one could have dreamed of the technology that makes life support possible. With the advent of kidney dialysis machines, pacemakers, respirators, and other life support devices, medical science has achieved the ability to prolong an individual’s bodily functioning. Whether this functioning alone is sufficient to define “life,” however, remains a question that cannot be addressed by medical science alone but must be considered in the light of philosophical, ethical, and other values. Medicine is therefore becoming an area with which the law must contend. Issues that have challenged existing laws include abortion and the point at which life begins, euthanasia, the individual’s right not to have life extended by extraordinary means if there is no hope of recovery, the right to reveal an individual’s genetic predisposition toward disease, egg implantation, and genetic engineering. Medical science has propagated these dilemmas but may also be called upon to solve them.

For Further Information:

Boumil, Marcia M., Clifford E. Elias, and Diane Bissonnette Moes. Medical Liability in a Nutshell. 2d ed. St. Paul, Minn.: Thomson/West, 2003. Succinctly discusses salient topics in medical liability: medical negligence, standard of care, intentional torts, informed consent and the right to refuse treatment, the duty of disclosure, causation and damages, and various defenses to liability.

Fremgen, Bonnie F. Medical Law and Ethics. 2d ed. Upper Saddle River, N.J.: Pearson Prentice-Hall, 2006. Essential legal and ethical principles for the health care provider. Contains case studies and legal citations.

Furrow, Barry R., et al. Health Law: Cases, Materials, and Problems. 5th ed. St. Paul, Minn.: West, 2004. Covers a range of issues related to health and the law, including cost control, prospective payment, health care antitrust, and federal and state regulation of health care delivery; legal and ethical issues created by reproductive technology and by the dilemmas of death and dying; and the core topics of professional liability and the physician-patient relationship.

Garner, Bryan A., ed. Black’s Law Dictionary. 8th ed. St. Paul, Minn.: Thomson/West, 2004. The fundamental legal dictionary, containing definitions and examples of how the terms have been interpreted by courts.

James, Stuart H., and Jon J. Nordby, eds. Forensic Science: An Introduction to Scientific and Investigative Techniques. 2d ed. Boca Raton, Fla.: CRC Press, 2005. An introductory text that covers a range of topics, including trace evidence, forensic toxicology, DNA analysis, crime scene investigation, fingerprints, traumatic death, forensic anthropology, bloodstain patterns, and criminal profiling, among many others.

Jonsen, Albert R., Mark Siegler, and William J. Winslade. Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine. 6th ed. New York: McGraw-Hill, 2006. Discusses the whole range of medical ethics, including legal issues, confidentiality, care of the dying patient, and euthanasia and assisted suicide.

Lewis, Marcia A., and Carol D. Tamparo. Medical Law, Ethics, and Bioethics for Ambulatory Care. 5th ed. Philadelphia: F. A. Davis, 2002. Directed to the general health care provider, the book covers practical topics such as management, guidelines and regulations for medical and allied health professionals, public duties, medical records, collection, allocation of scarce resources, genetic engineering, abortion, and life-and-death issues from the legal and ethical perspectives.

Munson, Ronald, comp. Intervention and Reflection: Basic Issues in Medical Ethics. 7th ed. New York: Wadsworth, 2004. An undergraduate text that combines social context, case studies, readings, and decision scenarios for topics that include abortion, advances in gene therapy, genetic discrimination, and health care rights.

Pence, Gregory E. Classic Cases in Medical Ethics: Accounts of Cases That Have Shaped Medical Ethics, with Philosophical, Legal, and Historical Backgrounds. 4th ed. Boston: McGraw-Hill, 2004. Surveys important cases that have defined and shaped the field of medical ethics. Each case is accompanied by careful discussion of pertinent philosophical theories and legal and ethical issues.

-Birdy