The Best Medical Legal Exhibits: Medical Legal Illustration, Personal Injury Illustration & Medical Malpractice Illustration
"I have become a believer in using medical illustrations as part of presenting my case to a jury." -Jack H. Simmons, Personal Injury and Medical Malpractice Attorney
The Purpose of a Medical Legal Illustration
While a blackboard or a whiteboard may be used in the courtroom to draw specific details of a medical case, whenever size, shape, location, placement, distance, or other medical or anatomical details must be precisely reflected, a prepared medical legal illustration will be necessary.
A medical legal illustration is demonstrative evidence designed to help a layperson or anyone unfamiliar with a case to understand complicated medical and scientific information. Unlike generic or stock illustrations, which are often complex and designed for medical audiences, medical legal illustrations are
- Specific and customized to a particular case
- Reduce into one or a few exhibits the specific information from many interrelated X-rays, hospital records, scans, surgical notes, photographs, models, or mortality tables
- to a few selected key points
- Serve as guides to support medical experts in expressing complex information in a straightforward explanation
- Focused to inform the jury as well as the judge to give understanding, to a greater extent, the pain and suffering of a client, loss of income, shortened life expectancy, or body injury.
"In the majority of personal injury trials demonstrative evidence represents an essential part of the case. Such evidence, when used effectively, is an invaluable aid to clarify the issues during the course of the trial." -Paul N. Luvera Jr. "DEMONSTRATIVE EVIDENCE PROBLEMS IN A PERSONAL INJURY CASE"
Background Medical Legal Illustration
"Most trial lawyers believe that illustrations explaining oral testimony are essential for a complete understanding of the facts of a personal injury case." -Paul N. Luvera Jr. "DEMONSTRATIVE EVIDENCE PROBLEMS IN A PERSONAL INJURY CASE"
Brief History of Demonstrative Evidence in Court
Admissibility of demonstrative models and illustrations rests at the discretion of the trial court. To be admissible, demonstrative exhibits must “fairly and accurately represent the real object at the relevant time” (Federal Rules of Evidence 901, 902, and 1001-1004).
While the use of medical illustrations is widespread and historically a standard practice, precedents have been set to guide the decision making. Determination of their admissibility rests within the discretion of the trial court. A particular court case is often referred to as a way of setting the standard for admitting demonstrative evidence:
Demonstrative Evidence Versus Substantial Evidence
- Does the illustration assist the jury in understanding the case?
- Does the illustration assist the witness in explaining the testimony?
- Is the illustration “substantially like” the thing sought to be illustrated?
After a medical illustration has been created with these intents, it must be formally presented as demonstrative evidence by its proponent. With this approach, the evidence admitted into the official record of the case. The proponent will first ask for the evidence to be marked by the court for identification purposes. If it is not presented in this way, the evidence can only be used as a prop, as “substantial evidence”. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion“, and it is not taken as seriously in court.
After the evidence is marked for identification, the proponent of the demonstrative evidence must “lay a foundation”. To lay a foundation, the proponent will ask the judge or court commissioner to move the exhibit into the court record, where it is designated as a “full exhibit”. The proponent of the demonstrative evidence is not obliged to, but will typically show any demonstrative evidence to the opposing party before marking it for identification purposes. If it is a criminal case, the proponent is obliged, by law, to disclose all demonstrative evidence under the rules governing discovery (Brady v. Maryland).
If the evidence is admitted as a full exhibit, this allows the jury and court members to examine and refer to the evidence throughout the deliberation process. Demonstrative evidence like medical illustrations may be challenged for its relevance. Luvera suggested that a test of validity in a courtroom situation can be expressed very simply when demonstrative evidence is produced. I provide here a typical example of a test in-court:
Proponent: Doctor, I have produced what has been marked as defendant’s “Exhibit No. 1”. Please tell me what this figure represents.
Medical Expert: This is a drawing of the surgical procedure used to remove obstructed bowel.
Proponent: Is this figure reasonably accurate from an anatomical perspective?
Medical Expert: Yes.
Proponent: Does it specifically reflect the surgery performed on the plaintiff?
Medical Expert: Yes.
Proponent: Will this drawing aid you in explaining your testimony?
Medical Expert: Yes.
Proponent: Your honor, plaintiff offers into evidence plaintiff’s “Exhibit No. 1” for illustrative purposes only.
Why use Visual Information instead of Verbal or Written Information to Educate a Jury?
There is a growing body of evidence over the past 60 years, revealing the importance of visually presented information as a powerful learning tool. Briefly stated, a few major points:
- Research has revealed that attorneys are inclined to be auditory or verbal learners. However, 2/3rds of their juror pool, the general public, are visual learners. For an extensive list of studies to support the importance of visual evidence in revealing information to jurors, read this.
- Visual aids assist in the storytelling of a case, which forms the primary thread in a juror’s comprehension of case details.
- Visual aids hold the jury’s interest, which increases comprehension.
- Set goals for what the legal illustration is to accomplish
- Use the illustration as a part of the story you will tell, and also a road map for the case.
- Explain to the jury what the illustration is intended to show. And then, after presenting the illustration, summarize what the illustration has shown.
- While illustrators are taught to prepare illustrations in a neutral way, anticipate, if relevant, any negative reactions to the medical details from jurors, and address them during the verbal presentation.
- Again, while the illustrator is trained to prepare the illustration as simply as possible, plan for the illustration to be simple and direct to the point.
- Practice the presentation and prepare the technology so there are no glitches which keep the jury and judge waiting
Steps Involved in Preparing a Medical Legal Illustrations
Preparing medical legal illustrations, whether to be used in a courtroom situation or in outside negotiations, is a fairly complex process. But the steps are fairly similar in each case, and follow this general arrangement:
- The illustration process begins once a tentative deadline is established. If the illustrator is expected to review evidence, allow sufficient time for preparation of first sketches.
- Together the illustrator and attorney agree how many illustration panels might be expected.
- The attorney sends the medical illustrator relevant medical records to the medical illustrator, either digitally or by mail. These include emergency room reports, clinical notes, radiological reports, surgical reports, x-rays, and follow-up records.
- The medical illustrator makes suggestions for exhibits: how many panels and what content each will hold. Suggestions will be offered so that each panel entirely reveals one injury or one aspect of the case. If there are several injuries in different regions of the body, an overview illustration may be recommended.
- The attorney reviews these suggestions, offers personal perspective, and a discussion of the details will finalize the concepts to be demonstrated in each panel.
- The finalized proposal is sent to the attorney including the suggested illustrations and cost.
- The attorney signs the proposal, including an agreed-upon portion of payment so that the illustration process may begin.
- Medimagery prepares preliminary sketches for the attorney. The medical illustrator consults with the treating physician or other experts, as necessary. Within the timeframe allowed, physicians and other experts may be requested to offer approval of sketch materials.
- The medical illustrator forwards sketches to the attorney for initial approval. After receiving the preliminary sketches, the attorney and any consultants will review the sketches and make any necessary corrections.
- The experts return the sketches signed with an approval or with any corrections indicated. A sketch revision may be necessary and will be sent for approval. If signed and approved the sketches from both the attorney and the experts have not been returned by the deadline, the attorney will be notified. The attorney will decide whether Medimagery completes the medical legal exhibit/s. Approval is necessary before proceeding.
- Once authorization is received for the sketches, the final medical exhibit/s are completed, labeled with any pertinent medical terminology and delivered by print in the form agreed-upon. All changes must be made during the sketch phase. Any changes made after the sketches are approved will be charged at an additional rate.
- After delivery of the medical-legal exhibits, a bill is sent for the final costs and shipping. The process is complete.
Medical legal illustrations or models, used as demonstrative evidence in the courtroom, are now a mainstay in medical malpractice cases, personal injury cases, and certain criminal cases. If you have any questions or anything to add to this material, please write to me. I would be grateful for the feedback.
November 2, 2017
Laura Maaske, MSc.BMC.
Health App Designer