Professionals of numerous medical as well as health care subspecialties are often called upon to provide expert opinions in the context of litigation. Those providing medical-legal opinions may either be called due to their role as a treater of a patient involved in litigation or retained to provide so called “expert witness” testimony because these specialists are recognized as experts in a specific area (even though they may not have treated a patient involved in litigation). In either case, the role of the testifying professional is very important in helping decision makers or triers of fact identify and appreciate the truth in order to achieve just resolution of the contested issue(s).
There are numerous challenges that the testifying professional should consider when preparing to present an opinion in a legal venue. These challenges include such things as 1) communication barriers related to vast differences in subject matter familiarity, 2) holding the attention of decision makers during the testimony, and 3) ensuring that decision makers retain the testimony through the end of the proceeding so that it can be considered when the final decisions regarding the matter are made.
If the issues involved in a particular litigated matter were simple and clear cut, the matter would likely be resolved long before an expert would be required to provide an opinion in deposition, mediation, or trial. This being the case, often an expert is called upon to testify to facts in a case that are based upon advanced neuroanatomical, physiological and/or medical concepts. Testifying professionals are therefore challenged to explain the details of these concepts in a way that decision makers can appreciate. In lengthy hearings, decision makers appreciate concise testimony. In addition, concise testimony can prevent decision makers from becoming lost and confused in the midst of a stream of medical words and concepts that are foreign to them. To help make testimony concise and effective, visuals can alleviate the necessity for lengthy verbal testimony in order to explain complicated structures, events, and/or their relationship to one another.
The subtle, most important details of an opinion can be challenging to communicate even to a person familiar with neurological anatomy and function. The challenges associated with effectively communicating these concepts are greatly compounded when the message is being delivered from a specialist to a layperson. One of the primary problems with communicating messages across this gap is that the experts are unable to use typical anatomical medical terms and phrases because these terms may mean nothing to the layperson or may potentially confuse the listener rather than educate them.
Decision makers tend to appreciate and side with those who make contested issues the clearest for them. However, making those contested issues clear by effectively translating anatomical and medical words and terms into words and terms that are understandable to decision makers can be much more difficult than one might initially think. For example, avoiding the use of such commonly used medical terms as “medial”, “lateral”, “proximal” and “distal” can make explaining relevant issues much more difficult for someone who is accustomed to routinely using those terms in typical explanations.
If the medical expert elects to use medical terms instead of translating these terms into words that are easily identifiable and understandable to the decision makers, the testifying expert may find him or herself teaching a mini-medical school during their testimony in an attempt to help decision makers adequately follow his or her testimony. This mini-medical school may add a great deal of time to the expert’s testimony. If decision makers are unable to understand and/or appreciate the use of the terms, or are unable to grasp their definitions as provided by the expert, their focus can quickly be channeled away from the testimony to other things. The lost focus can result in the decision maker’s missing very key parts of the testimony.
The use of hand gestures can often help experts explain points, but hand gestures can only be appreciated when testimony is live or video-taped. Depositions that are only documented through transcripts are not able to capture hand gestures. In addition, hand gestures used to present live arguments during trial may be effective during trial, but if the testimony is reviewed later (for appeal purposes for example), whatever benefit the hand gestures added to the testimony is lost.
A medically-related legal hearing can last several hours, but more often they last several days. During that period decision makers will typically hear arguments from multiple witnesses, treating physicians, and experts from both sides of the argument. This being the case, it may not be enough for an expert to successfully communicate his or her message during their testimony -- it must be delivered in a way that will help ensure the testimony is recalled and considered at the end of the hearing when decision makers are reflecting back upon all the testimony and drawing their conclusions.
Medical Illustrators as a Member of the Medical-Legal Team
A very effective way of increasing the effectiveness of expert testimony is by enhancing focus, understanding, and recall by teaming the testifying expert with a qualified medical illustrator, experienced in preparing legal graphics (illustrations, animations, models, etc.). By working together, the medical knowledge and oral skills of the expert can be supported by expertly created medical graphics that greatly clarify complicated anatomical, physiological, and medical subtleties. Together they result in much more effective communication with the decision makers than if verbal testimony or the graphics were used alone (one mode of communication used alone without being supported by the other). In addition, during a period of hours or days of listening to arguments that are typically only verbal, decision makers grasp the opportunity to focus on visuals in the form of illustrations, photographs, models, and/or animations. In fact, information is generally better processed if jury members and other triers of fact can have information presented in a multimodal fashion (i.e. combinations of simultaneous auditory, visual, and tactile stimuli).
The effectiveness of visuals is supported throughout our society by such common phrases as “A picture is worth a thousand words”, and “Seeing is believing.” In addition, numerous manuscripts refer to studies substantiating that recall is greatly increased when the verbal message is supported by visual images. Typically these studies have shown that after varying periods of time information that was delivered by a combination of voice supported by visuals was recalled at a significantly higher percentage than the same message delivered by voice alone.
Working with a Medical Illustrator
It is relatively simple for the testifying expert to work with a qualified and experienced medical illustrator to develop “demonstrative aids” to enhance and further support testimony. While this process can be accomplished in as little as a few days before the date that the testimony is to be given, it is much less stressful on everyone involved and often yields better results if the relationship is begun a month or so ahead of time. The process often begins with the attorney contacting a medical illustrator to work with the testifying expert. However, it is not unusual for the testifying expert to initiate the relationship and to request that the attorney allow him or her to work with a specific medical illustrator. As with most case-related expenses, the attorney and their clients must ultimately approve the medical illustrator’s fees.
Initially, the medical illustrator will typically request certain medical records and a case summary (such as a Bill of Particulars of Letter of Opinion from the testifying expert) that highlights not only the relevant medical issues but the specific acts of alleged negligence and related damages. After reviewing these items, the medical illustrator can work with the attorney and testifying expert to develop the basic concepts of demonstrative aids (illustrations, animations, etc.) that will support and enhance the most critical parts of the expert’s testimony. After good specific concepts for the demonstrative aids are established, the illustrator then develops sketches or drafts of the images for the expert’s review. Any suggested modifications are then incorporated into the final images that are ultimately used.
If a qualified and experienced medical illustrator is selected, face-to-face meetings are unnecessary as they only add more time and cost to the developmental process. In addition to the traditional use of telephone, facsimile and overnight delivery services, the more recent wide use of email and inventive use of the many communication enhancements available through the internet have made it very easy for geographically distant members of the “litigation team” to effectively exchange ideas and images. The need to find a medical illustrator in close proximity to the expert is no longer necessary as these communication advances have made it very easy for the expert, medical illustrator, and attorney to effectively communicate with each other, whether across town or across the country. It should be noted however, that face-to-face meetings and much more “direction” by the medical expert may be required with less trained and/or less experienced medical illustrators.
Figure 1: Example of graphics that can aid expert testimony: This particular series of illustrations helps demonstrate one of the most difficult concepts for layperson decision makers to appreciate – that is, how brain injuries (traumatic axonal and shear injury) can occur in an individual with only a minor, or sometimes even no significant blow to the head. The illustrations are also particularly helpful in explaining how an individual can have these injuries, yet the injuries are not evidenced on traditional brain imaging studies such as CT or MRI. Another very effective animation demonstrating this same phenomenon even more convincingly can be seen at the following link: http://medivisuals.com/mildtbi
Selecting a Medical Illustrator
Just as all treating physicians and/or medical experts aren’t the same, all medical illustrators aren’t the same. Attorneys typically go to great lengths to ensure that testifying experts for their cases are adequately credentialed, but many give little thought to applying the same due diligence when selecting a medical illustrator. This can be a big mistake because unlike many “professionals”, there is no basic training, licensing, or certification process that is required for an individual to call themselves a “medical illustrator”. Many less skilled and/or less qualified “medical illustrators” market to attorneys – perhaps because attorneys are less able to detect errors in their work. For these reasons, it is the responsibility of the attorney and/or medical expert to their clients to ensure they enlist the services of a medical illustrator who is qualified to provide those services.
Working with a qualified medical illustrator who has experience in the medical-legal area can be a pleasant, enjoyable experience for the testifying expert as these medical illustrators are able to read and comprehend medical records, review imaging studies, and discuss complicated anatomical and medical terms on a very similar level as the expert. On the other hand, working with an un- or minimally qualified and/or inexperienced medical illustrator can be a frustrating and time consuming task that may require multiple revisions of drafts, ineffective demonstrative aids, or even embarrassment during a hearing because of the discovery of some error or inconsistency during testimony.
It can be difficult to determine the qualifications of a medical illustrator based upon looking at their artwork alone. A copy of a résumé or curriculum vitae should be requested. One of the most basic requirements that the résumé should show would include graduation from one of the below medical illustration graduate programs. There are several medical illustration programs in colleges and various institutes in North America and across the globe; however, only five are currently accredited by the American Medical Association, and Commission on Accreditation of Allied Health Education Programs. Those programs include:
Medical College of Georgia - Master of Science in Medical Illustration
University of Illinois at Chicago - Master of Science in Biomedical Visualization
Johns Hopkins University - Master of Arts in Medical and Biological Illustration
University of Texas, Southwestern – Master of Arts in Biomedical Communications
University of Toronto - Master of Science in Biomedical Communications
Other criteria that should be evident in a résumé or CV that would help demonstrate at least minimal qualifications are 1) Certification as a medical illustrator as issued by The Board of Certification of Medical Illustrators and 2) Professional Membership in the Association of Medical Illustrators. Both of these require that the individual possess at least minimal medical illustration training and skill levels. Also, just as there are different subspecialties in medicine which require specific and advanced skills and knowledge, specialization in “medical-legal” illustration requires additional knowledge and experience in addition to those required for general medical illustration. For that reason, it is also wise to select a qualified medical illustrator who is not only familiar with illustration and medicine, but also has a significant amount of experience in creating illustrations for litigation purposes.
Testimony by health care professionals plays a very critical role in determining fair and just outcome of litigation involving brain injury related matters. Effective verbal testimony can be enhanced by working with a medial illustrator to obtain demonstrative aids that will:
1) help hold the decision maker’s attention,
2) help them understand and appreciate the complicated and detailed issues of the message, and
3) help them retain that information throughout the legal proceeding.
Certification: Certification of Medical Illustrators page. Association of Medical Illustrators Web site.http://timssnet.allenpress.com/ecomami/timssnet/web/certification/certification.cfm. Accessed August 19, 2008.
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Education: Accredited Programs page. Association of Medical Illustrators Web site.http://timssnet.allenpress.com/ecomami/timssnet/web/education/education.cfm. Accessed August 19, 2008.
Figure 1: Reprinted with permission from MediVisuals Inc. Copyright 2008, MediVisuals Inc.
McCall, J., & Rae, G. Relative efficiency of visual, auditory and combined modes of
presentation in learning of paired-associates. Perceptual and Motor Skills, 1974; June (38) : 955-958.
Multimodal Learning Through Media: What the Research Says. Cisco Web site.http://www.cisco.com/web/strategy/docs/education/Multimodal-Learning-Through-Media.pdf. Accessed August 19, 2008.
Copyrighted MediVisuals, 2008