Virginia Lawyers Weekly

When personal-injury lawyers want background medical information, they often pick up the phone and call a doctor. Perhaps they walk down the hall to talk to a senior partner or corner a knowledgeable lawyer at a bar meeting.

But when the time comes to depose a medical expert or cross-examine one at trial, lawyers may need a written source they can cite in a courtroom.

Medical literature also can supplement and update the lore attorneys cull from colleagues and advisers.

The resources personal-injury lawyers rely on range from a slim volume that med students carry around to multi-volume encyclopedias.

Both plaintiff’s and defense counsel have identified publications that personal-injury lawyers should consider for their medical libraries.

J. Rudy Austin of Roanoke, a past president of the Virginia Association of Defense Attorneys, said he counts on a journal called Hippocrates’ Lantern.

The publication “reviews and digests the medical literature having to do with injuries commonly encountered in litigation,” he said. “It does an excellent job of discussing and critiquing various injuries.”

The quarterly publication is subtitled “Casting Light on Questionable Medical Claims.”

Most of the articles in the journal are written by doctors, and “each author cites prominent medical authorities and treatises,” said Austin. “Generally, the information is so thorough that I don’t have to go further,” he added.

He said he used one of its articles on bulging discs to cross-examine a neurosurgeon. “In many cases, diagnosis of a bulging disc is attributed to a car crash, but most people have [such symptoms] anyway; until they impinge upon a nerve root, they’re clinically insignificant,” Austin explained.

James W. Morris III of Richmond, another past VADA president, also hailed Hippocrates’ Lantern as useful, saying it is “the kind I save articles from.”

He noted that the publication’s editor, Florida lawyer Stephen C. McAliley, led a crusade for several years that eventually “eliminated the thermogram as a credible diagnostic tool in personal-injury cases and in the medical profession.”

The publication has about 17,000 subscribers, according to McAliley. Although the journal is marketed to defense lawyers, he commented, the articles are balanced because lawyers need to be aware of all schools of thought on a topic.

When McAliley traveled around the country representing insurance carriers in cases involving thermograms, he said he determined that a need existed for defense lawyers to know more about medicine.

“I had defended medical malpractice for many years, but without that experience, I would have been in the dark,” he said.

Richmond attorney Thomas W. Williamson Jr., president of the Virginia Trial Lawyers Association, said that he uses a one-volume work that every medical student buys, which describes how to conduct a physical exam.

The book’s title is Bedside Diagnostic Examination, but it is known as DeGowin and DeGowin, who are the authors.

The book can be used “anytime you want to argue that a physician didn’t do a good examination or how he should have done the examination,” said Williamson.

If an expert who performed a neurological exam gets on the stand, he will describe a lot of tests conducted on the patient, Williamson said. “The jury may be thinking [it] sounds like they tested everything.”

But the test may have nothing to do with an L-5 disc, for example. “This test would rule out a brain tumor, but we didn’t think he had a brain tumor,” said Williamson.

The first edition of the DeGowin book came out in 1965, so it has been around a long time, he said. “Every doctor would have to concede they owned one in medical school.”

He added, “A lot of this information might be in Courtroom Medicine, published by Matthew Bender, but you can buy some of these medical texts cheaper.”

Williamson also said he uses a book known as the Bible of pharmacology when he needs to determine the effect drugs would have on the plaintiff’s condition.

The book is titled The pharmacological basis of therapeutics and is known as Goodman and Gilman.

“It talks about every drug or chemical that you might ingest, how it works and what its complications are,” he said.

“There’s no need to go to that book in the garden-variety neck case, but it could be useful in some personal-injury cases. Also, it’s a great starting point in medical-malpractice cases involving drugs,” said Williamson.

He recalled one suit where a patient had experienced post-operative meningitis, but had no elevated temperature as would be expected. Williamson discovered that the patient had received large doses of aspirin, acetaminophen and steroids, which reduced the patient’s normal temperature and, therefore, his elevated temperature.

John K. Messersmith IV, a Richmond lawyer who handles exclusively insurance defense, said the source he uses most often to show that injuries are not as severe as claimed is published by the AMA.

The American Medical Association Guides to the Evaluation of Permanent Impairment allows one to measure the impairment to particular parts of the body, said Messersmith.

“On cross-examination, it’s tremendously effective to utilize this book and ask the doctor to go through the steps used” in gauging the plaintiff’s disability, he said.

“Very often, [doctors] can’t do it.” Most estimate disability, Messersmith explained. The calculations in the AMA Guide are complex and take a lot of time, he said, and doctors frequently do not spend the necessary time.

The fourth edition of the AMA Guide came out in 1993, according to Messersmith. Occasionally, a doctor will have used an earlier edition that provided for a higher disability rating, too, he said.

Robert T. Hall of Fairfax, a past president of the VTLA, offered some general resources that help attorneys understand personal injuries.

Two particular nursing textbooks explain injuries in more fluent prose than books written for lawyers or doctors, Hall suggested. One is The Lippincott Manual of Nursing Practice; the other is Medical-surgical Nursing: Assessment in Management of Clinical Problems.

These volumes are useful to help the attorney understand the treatment and the recovery cycle more than for use with an expert, said Hall.

“They are well-illustrated, too,” he said.

Hall also commended the books published by Gray’s, which is a multiple-book series that covers many topics, such as anatomy. “It is our Encyclopedia Britannica. It covers the waterfront,” he said.

Still, a lawyer who only has a single volume, would have Cecil’s Textbook on Medicine, said Hall, adding “almost everyone has that.” His copy is well-worn with a broken back and pages falling out.

Like other lawyers, though, Hall said when he runs across a real mystery case, “I pick up the phone and ask a physician to look at the chart and consult with us.”

Hall said he wishes he had a book to explain the most difficult cases: “I just put down a file where a 26-year-old was in a one-car accident, went to an emergency room and was dead two hours later after a cardiac arrest,” he said.

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