18 Summer 2016 | Issue 149 | the Verdict

COLUMNS | tlabc.org

THE EFFECTIVE USE OF MEDICAL LITERATURE

A common strategy in medical malpractice litigation is to use medical literature to build your case, or undermine your opponent’s case. Medical literature can be used for

many purposes:• guidelines and policies can help establish the applicable

standard of care;• textbooks, journals and studies can inform an expert’s

opinion on the standard of care or causation; and • literature of many kinds can be used to cross examine an

expert at trial. Unfortunately, there is often confusion as to the correct use

of medical literature in expert reports and during the course of a trial.

USE OF MEDICAL LITERATURE IN EXPERT REPORTS Experts frequently rely on academic literature in reaching their

conclusions. Guidelines and policies can be useful in ascertaining the standard of care that a professional must meet. A breach of a guideline recommendation does not, in and of itself, prove a breach of the standard of care; guidelines are practical tools to assist practitioners in the delivery of services, not a substitute for a determination, on all the evidence, of the applicable standard of care.1 Nonetheless, guidelines and policies can assist in establish-ing the appropriate standard of care. Experts and parties can give evidence that these guidelines and policies reflect or bear heavily on the standard of care that a defendant was required to meet. 2

The Supreme Court of Canada has clearly established that reli-ance on literature is acceptable when obtained and acted upon within the scope of the witness’ expertise.3 Accordingly, when providing a report or testifying at trial, experts are permitted to reference in their report the scientific literature relied upon in reaching their conclusions.4 Beyond simply citing texts, experts

can refer to, or quote from, sources within their areas of expertise to express, explain and support their conclusions.5 In fact, Rule 11-6 requires that an expert include in his or her report a list of every document relied on by the expert in forming the opinion. If an expert relies on literature, it must be identified with some precision. Vague statements such as “a review of the literature for the [medical procedure in question]” is insufficient to meet the requirements of the Rules.6

However, this material, unsworn and unavailable for cross-examination, is not admissible as evidence for the proof of its contents. By quoting the literature, the expert adopts it as his or her opinion and it becomes opinion evidence from that expert.

USE OF MEDICAL LITERATURE AT TRIALThe most obvious benefit of medical literature is to educate

oneself about the medical condition or procedure at issue. One of the dangers of expert evidence, as outlined by the Supreme Court of Canada in R v D.D., is the risk that expert evidence will be highly resistant to effective cross examination due to the knowledge imbalance between an expert with specialized knowl-edge and counsel.7 To a certain extent, this risk is unavoidable. However, it can be tempered by consultation with one’s own ex-pert to find holes in the opinion or to find authoritative sources of literature contradicting the opinion that can be put to the expert on cross-examination. Most disciplines have a few authoritative texts that are the gold standard for that area of practice. If your own expert can point you to these well-respected materials, you can conduct an effective cross-examination of the opposing party’s expert by confronting him or her with a contrary opinion from a source they recognize as authoritative. It is also helpful to have your own expert testify to the authoritative nature of the source and/or author. If the opposing expert refuses to recognize it as an authoritative text, that fact can be weighed with the other evidence by the trial judge when assessing which expert’s opinion

BY LINDSAY MCGIVERN & SUSANNE RAAB PACIFIC MEDICAL LAW

MEDICAL MALPRACTICE

Lindsay McGivern is an associate lawyer at Pacific Medical Law. Lindsay obtained her law degree from Dalhousie University in 2014 and was called to the Bar in 2015. Her practice is focused on representing patients who have suffered injury as a result of medical malpractice. Lindsay articled at a civil litigation defence firm before moving to Pacific Medical Law. Working on both sides of civil litigation has allowed her to have a broader perspective and given her a better understanding of the different approaches taken by plaintiff’s and defence counsel. Susanne Raab is a partner at Pacific Medical Law. Susanne’s practice focuses on representing individuals and families who have suffered injuries as a result of medical malpractice, with a focus on birth injuries and catastrophic brain and spinal cord injuries. She has been selected for inclusion by her peers in Best Lawyers in Canada in the area of Medical Negligence. Prior to joining Pacific Medical Law, Susanne spent much of her legal career representing physicians in complex medical malpractice actions. Susanne has appeared before the Provincial Court and Supreme Court of British Columbia, as well as the Supreme Court of Canada. Susanne also serves on the Board of Governors of the Trial Lawyers Association of British Columbia. Susanne is actively involved in advocating for individuals living with disabilities, and serves as the Vice President of the Board of Directors as well as Chair of the Advisory Committee of the Cerebral Palsy Association of British Columbia.

tlabc.org | COLUMNS

the Verdict | Issue 149 | Summer 2016 19

is more persuasive.It is crucial, however, to understand the limits of using medi-

cal literature in cross-examination. Counsel is not permitted to simply read from various sources and have the literature thereby become evidence at trial. The basis of the objection to this strategy is that the content of the literature is unsworn and the authors are not available for cross-examination. The material cannot be chal-lenged for its accuracy or explored for qualifications respecting a particular fact scenario. On the other hand, medical literature has long had a place in cross-examination. The boundary of its appropriate use has remained consistent since it was drawn in R v Anderson in 1914:

I think an expert witness may be examined as to what is in the books. Medical works are produced which are recognized by the profession as standard authori-ties. An expert witness is being examined, who gives evidence as to specified diseases and their remedies. It is found by reference that his statements are at vari-ance with what is laid down by the best authors on the same subject. Surely it must be right of counsel to confront the witness with books written by scientific men, leaders in their profession, for the purpose of showing either that the witness is mistaken, or that he may explain and reconcile, if he can, the real or apparent difference between what he has said and what is found in the books. If it was otherwise, men

of insufficient learning, or veritable quacks, might palm off their crude opinions on juries as scientific knowledge. There is a marked difference between reading what is in a book as evidence to a jury, and testing a witness when examining him by reading to him from the same book. In the one case, you are reading as evidence what, after all, is only the opinion of a scholar, however learned he may be, without an opportunity to cross-examine him. In the latter, you are testing the opinion of one expert by the writings of another, admitted to be of high authority. It may be that the author’s views are placed before the Jury as effectually in one way as in the other; but, in my opin-ion, one way is objectionable, and the other is not.8

The proper procedure for conducting a cross-examination us-ing medical literature was articulated by the Supreme Court of Canada in R v Marquard:9

The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is “no”, or if the witness denies the work’s authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is “yes”, and the witness acknowledges the work’s authority, then the witness has confirmed it by the witness’s

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20 Summer 2016 | Issue 149 | the Verdict

COLUMNS | tlabc.org

own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case.

If the expert expresses ignorance of the work or denies the work’s authority, counsel cannot proceed to read extracts from it or to cross-examine the expert on it.10 The court in Marquard explicitly rejected the American approach of allowing the literature to be put into the record where there is some proof of, or where the judge is prepared to take judicial notice of, the general authority of the work.11 Unless the literature is introduced by its author or adopted by an expert as authoritative, it is inadmissible.

In addition, the literature is not stand-alone evidence. It is evidence adopted by an expert as his or her own opinion. When the expert acknowledges the authority of the work and confirms parts of it, the confirmed parts become evidence that the trier of fact can consider.12 If the expert acknowledges the authorita-tive nature of a particular medical journal but does not adopt the particular statement, the article cannot be admitted for the truth of its contents; it is only admitted to illustrate the focus of the questions and answers on the cross-examination.13 It is the fact that the author or text from which the statement was taken, recognized as authoritative by the witness, contradicts the opinion of the testifying expert, which is admissible, and not the substance of the contradictory opinion.14

It follows therefore that when medical literature is used by an expert in articulating their opinion or by counsel to cross-examine an expert, it should not be marked as an exhibit in its entirety because the whole of the literature is not evidence. Only the parts of the text that are referred to and confirmed by the experts as forming part of their opinions are evidence. As a result, only those parts of the text are properly admitted into the record.15

In conclusion, the use of medical literature can be an effective way to develop the expert evidence on behalf of your client as well as to undermine the expert evidence presented on behalf of the opposing party. However, it is important to keep in mind that medical literature cannot be used as stand-alone evidence. It can only be admitted if relied upon by your own expert or adopted by the opposing expert during cross examination, and in those circumstances is introduced as that witness’s own expert evidence. V

1 Ediger v Johnston, 2009 BCSC 386.2 Ediger v Johnston, 2009 BCSC 386.3 R v S.A.B., [2003] 2 SCR 678.4 R v D.D., [2000] 2 SCR 275.5 R v S.A.B., [2003] 2 SCR 678, R v Anderson (1914), 22 CCC 455 (Alta CA).6 Turpin v Manufacturers Life Insurance Company, 2011 BCSC 1159.7 [2000] 2 SCR 275.8 R. v. Anderson, 16 DLR 203, [1914] A.J. No. 34 (SC), at para. 68.9 [1993] 4 SCR 223.10 Philion v Smith, 2008 CanLII 43590.11 [1993] 4 SCR 223.12 Philion v Smith, 2008 CanLII 43590.13 Allen v University Hospitals Board, 2000 ABQB 509.14 1995 CanLII 3385 (BCSC).15 Philion v Smith, 2009 CanLII 43590.

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