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The Use of A Learned Treatise In The Trial of A Medical Negligence Case

The use of a medical textbook, treatise, article or other document in a medical malpractice action is governed by Federal Rule of Evidence 803(18). Pursuant to FRE 803(18), the following are not excluded by the hearsay rule, even though the declarant is available as a witness:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

FRE 803(18) [hereinafter “the rule”] answers the following three essential questions relating to the use of a medical textbook, treatise, periodical article or other document [hereinafter collectively referred to as “treatise”] in medical malpractice litigation: (1) what foundation must be established; (2) who may establish the foundation; (3) how may the treatise be used.

What foundation must be established

Before a treatise may be used as substantive evidence in a medical malpractice case, the treatise must be established as a “reliable authority” in the particular filed of medicine. See e.g., Carroll v. Morgan, 17 F .3d 787, 790 (5th Cir. 1994); Meschino v. North American Drager, Inc., 841 F .2d 429, 433 (1st Cir. 1988). The rule does not require a party to establish that a treatise is an “authoritative” work. A well-known strategy among medical experts in medical malpractice litigation is to avoid recognizing any work in a particular medical field as being “authoritative.” See, e.g., Constantino v. Herzog, 203 F .3d 164, 169 (2nd Cir. 2000) (plaintiff’s medical expert stated that “no journal is authoritative”); Carroll, 17 F .3d at 789 (defendant’s expert cardiologist stated that “he would not cite on particular source as the exclusive authority on endocarditis.”) The logic behind the strategy is to preempt impeachment by avoiding questioning from the “authoritative” document. For the most part, every medical expert agrees that there is not a single “authoritative” text in any field of medicine. However, most experts recognize that there are numerous “reliable authorities” in specific fields of medicine. Therefore, the litigator should focus on using the term “reliable authority” rather than on the term “authoritative.” An expert is more likely to recognize a work as a “reliable authority” versus an “authoritative” work because of a former term’s less definitive degree. Therefore, by using the term “reliable authority,” the litigator is more likely to be able to use the treatise to impeach an expert in cross-examination.

Who may establish the foundation

Although impeachment is most effective when an expert is discredited using a treatise the expert has acknowledged as a reliable authority, an expert on cross-examination need not recognize the work as a reliable authority in order for a party to use the treatise to impeach the witness. See, e.g., Constantino, 203 F .3d at 175; Carroll, 17 F .3d at 790. FRE 803(18) provides that the foundation for the use of a learned treatise may be established by the expert who is being questioned, another expert, or by judicial notice. See, e.g., United States v. Turner, 104 F .3d 217, 221 (8th Cir. 1997); Meschino, 841 F .2d at 434; Hemingway v. Ochsner Clinic, 608 F .2d 1040, 1047 (2nd Cir. 1979). Therefore, a party’s own expert or an opposing party’s expert may establish the foundation for the use of the treatise.

Due to the order in which witnesses testify, a party may have difficulty establishing the foundational requirement prior to the party’s attempted use of a treatise. For example, assuming that the defendant has not presented defendant’s case-in-chief and the plaintiff’s expert refuses to recognize a treatise as a reliable authority, defendant may be precluded from cross-examining plaintiff’s expert through the use of a learned treatise. Under this circumstance, defendant may request that the court, pursuant to Federal Rule of Evidence 104(a), recognize that the treatise is a reliable authority and allow defendant to cross-examine plaintiff’s expert using the treatise. The court is likely to recognize the admissibility of the treatise even though the defendant has not elicited expert testimony that the treatise is reliable authority, if defendant has established that the treatise is a reliable authority through an expert witness’s (either one of the defense’s experts or one of plaintiff’s experts) deposition testimony and if defendant establishes that the expert witness who testified in deposition will be called to testify in the case. The same scenario applies if plaintiff intends to use a treatise to cross-examine, as an adverse witness, the defendant physician prior to an expert testifying that the treatise is a reliable authority.

How may the treatise be used

Pursuant to FRE 803(18), the statements contained in the treatise are admissible as substantive evidence. See e.g., Tart v. McGann, 697 F .2d 75, 78 (2nd Cir. 1982). Therefore, the statements may be read to the jury and the jury may consider the statements as evidence. The statements from the treatise are admissible as substantive evidence because the expert who is being questioned “is on the stand and available to explain and assist in the application of the treatise is desired.” Fed. R. Evid. 803(18) advisory committee’s note. However, the treatise or portions of the treatise may not be admitted as exhibits. See, e.g., Tart, 697 F .2d at 78. The treatise is not admissible as an exhibit because the jury may misinterpret the statements contained in the treatise without the benefit of a medical expert in the jury room assisting in the comprehension of the document. See Fed. R. Evid. 803(18) advisory committee’s note.