Tony Francis, MD, Orthopaedic Surgery, 12:53AM Jun 15, 2013
If you ever give a deposition, chances are some lawyer will ask you a hypothetical question. Before you get a chance to answer, the other side will chime in with vehement objections like, "assumes facts not in evidence", "beyond the scope of the witness' expertise", "beyond the scope of the testimony", "the question is completely irrelevant" "calls for speculation" and about a dozen other objections I can't recall at this moment.
A hypothetical question is one that usually involves a scenario created by the lawyer, which may or may not have some congruity with the actual case.
Hypotheticals represent several traps of which doctors should be aware. Perhaps the biggest one is that your reaction and answer can give the appearance that you are an advocate for one side or another. Nothing hurts witness testimony by doctors more than sliding into the role of being an advocate. One should always strive for complete neutrality. Witness demeanor is important. Don't get defensive. Just answer the question truthfully without injecting editorial comments. Sometimes I am guilty of this. I get hypotheticals sprung on me all the time. I answer truthfully, then sometimes add something like, "...speaking in the hypothetical or generic case, and not necessarily to the facts of the case at hand..." It depends on the case and the judge. It is fair to point out that you are not speaking about facts which have some bearing on the the case in which you are testifying. Once again, it depends on the circumstances. The judge and lawyers know that already. The jury may not. And it is not your role to point it out to them. Let the lawyer for the other side do that.
Of course, if you don't want to answer the question, you can always say, "I can give you a speculative answer" or "I can't answer the question without speculating." That will usually shut it down. All hypotheticals call for a speculative answer. Hypothetically speaking, that is. After all, if the facts were developed, then it wouldn't be a hypothetical. However, the hypothetical may assume facts which will be developed later on.
Hypotheticals have always received a mixed reception in the court room. For one thing, they are a way of getting the expert witness to do the job of the jury: be the finder of fact. They are also a way of letting the lawyer testify through the words of the expert. But on the other hand, they can be used to bring out the facts of the case in a more clear manner. I have told lawyers, "I think that is a question better directed to trier of fact, and not me..." It depends on the judge. Some will want the question answered anyway. Other judges will reword the question. Some will tell the lawyer to knock it off and get back on topic at hand. Sometimes, the judge will even pose a hypothetical. In that case, just answer it.
There are several ALRs which have discussed the issue of hypotheticals. One in my library has this:
56 ALR3d §2 p. 303 et seq (1974)
Introduced early in American law, the hypothetical question has long been recognized as the generally approved method of eliciting expert testimony. Essentially, it developed as a procedural device whereby an expert who has no firsthand knowledge of the material facts surrounding a particular occurrence can, based upon evidentiary data assumed to be true, offer an opinion relevant thereto. It permits the interrogator to substitute assumed data for evidence, at least temporarily, and invites the inference of the witness from that data, a function usually reserved for the court or jury. Over the years, much criticism has been directed toward the hypothetical question as a necessary device in the procurement of expert opinion testimony.
No less of an authority than Judge Learned Hand once described the hypothetical question as "the most horrific and grotesque when upon the fair face of justice," and Professor McCormick has observed that rules regarding the form and content of such questions have evolved "with perhaps more logical rigor than practicality." The most usual criticisms of the hypothetical question are that it is often so long and involved as to confuse rather than assist the jury, and that it is frequently slanted for partisan advantage, constituting but another method of argument or development of the interrogator's case, as well as a method of securing the witness' rubber-stamp approval of a conclusion inescapable from the assumed data. Thus while admitting that the hypothetical question is an ingenious and logical device for bringing the expert's scientific knowledge before the jury in relation to the facts of the particular case, Professor McCormick has complained that if we require it to recite all the relevant facts, it becomes intolerably wordy, but that if we allow the interrogating counsel to select such material facts as he sees fit, we tempt him to shape a one sided hypothesis.
Similarly, Professor Wigmore has assigned several major faults to the hypothetical question as it is presently employed, noting that, because it may be so contrived by counsel as to call for only partial conclusion, it has tended to confuse jurors and mislead them as to the purport of the expert opinion, and has artificially clamped the mouth of the witness, so that his answer to a complex question may not express his actual opinion on the case. As stated by one court, the hypothetical question permits the examiner, by a strategic selection of the facts to be included therein, to close the mouth of the expert witness by omitting those assumptions which could harm his case, the result being that the jury is confused and misled as to what the expert's opinion really is. And another court has expressed the criticism that the use of the hypothetical question frequently has a stultifying, somniferous effect on the jurors and presents to them at one time so great a quantity of assumed facts that it is not reasonable to expect them to have any clear idea of the bases on which the opinion is formed.
31A Am Jur 2nd §99 Expert And Opinion Evidence
A proper hypothetical question put to an expert and the answer given in response do not constitute an invasion of the province of the jury. Although the jury's role is to judge the existence of facts as to a particular matter in issue, the opinion of an expert in answer to a hypothetical question is not objectionable in that it may be an aid to the jury in finding the ultimate facts. A hypothetical question is erroneous, however, where it requires the witness to resolve questions of fact. Resolution of a factual dispute created because of conflicting evidence is beyond the scope of the hypothetical. The truth of the facts of assumed by the hypothetical question is a matter for the determination by the jury, and it must determine whether the basis on which the hypothetical question rests has been established. If the jury finds that the assumed facts are not proved, then the question is improper.
The trial court is responsible for exercising control over the propounding of hypothetical questions to expert witnesses, and also regulating the form and content of the questions. The trial court, in fulfilling this duty, exercises a judicial discretion with which an appellate court will not interfere unless it appears that the discretion has been abused or wrongly exercised.
New York Law Journal 10/31/2006
Hypothetical questions are a vital tool for a trial lawyer. Without them, we would have more difficulty proving cases, more difficulty disproving opposing theories, and more difficulty convincing juries of the righteousness of our cause.
Streamlined Hypothetical Questions
The premise behind all trial lawyers' strategic decisions at trial serve one uniform purpose: to convince the trier of fact that his position is correct. This is not an easy goal to achieve, particularly in personal injury cases where expert opinion is a mandatory part of the proof: to show that an injury is permanent and painful; that a doctor departed from accepted standards of medical practice; that the negligence in question caused a specific injury; that an injured victim can no longer work; or that scientific or technical expertise, such as that possessed by an accident reconstructionist, reveals which party was at fault. In truth, all of these opinions can be made clear by the effective use of hypothetical questions.
Consider a typical case involving an automobile accident where a 19-year-old plaintiff sustained a herniated lumbar disc in a rear-end accident. The trial lawyer could simply go through a direct examination of the treating physician, having her define medical terms, discussing the history given to her by the patient, and her findings. He can then ask the doctor her opinions as to injury, causation and future prognosis without using a hypothetical question. It is far more persuasive and far more dramatic, however, to ask a hypothetical question that incorporates the relevant facts that you have already proved through other witnesses and the expert physician herself. Such an approach strengthens the effect of the expert's testimony by focusing the jury on the facts upon which it is based:
Q: Doctor Patel, I would like to assume the following as true. That on June 29, 2004, my client, your patient, Tom McMurray, was sitting in his automobile stopped in traffic, looking straight ahead. That he was struck from behind by a garbage truck which the defendant testified weighed over three tons. That although Tom was belted in, his head, neck and back were thrown first backward and then forward. At that very time he felt a pain in his low back. He was taken to the emergency room, where X-rays were negative for fracture and came under your care the following day. By that time he had pain radiating from his back into his right leg and big toe. As a result you did a physical examination which revealed muscle spasm in his lumbar spine, an absent Achilles reflex and positive straight leg raising on his right side, the significance of which you've already informed this jury. As a result of those findings you made a presumptive diagnosis of a herniated lumbar disc which was confirmed on MRI the following day. That MRI that you showed this jury revealed a right-sided herniated disc at the level of L5-S1. That Tom has been under your care since that time up to the present time, and that you have prescribed anti-inflammatory medications and physical therapy. My question is as follows:
Q: Do you have an opinion, to a reasonable degree of medical certainty, as to whether or not the accident in question was a substantial factor in bringing about the herniated disc? What is the basis for your opinion?
Q: Do you have an opinion, also to a reasonable degree of medical certainty, as to whether or not the injury is permanent? Why do you say that?
Q: Do you have an opinion, to a reasonable degree of medical certainty as to whether or not that herniated disc is a competent producing cause of pain from the time of the accident until today?
Q: Do you have an opinion to a reasonable degree of medical certainty as to whether or not the herniated disc will be a competent producing cause of pain in the future?
Q: For how long, in your medical opinion, will he have such pain in terms of years?
Q: What is the basis of your opinion?
Q: Do you have an opinion as to what, if any, medical treatment Tom will need?
The hypothetical question is particularly important in the cases involving difficulty in proving causation. Take, for example, the same automobile accident, but this time with a 55-year-old plaintiff with a prior arthritic condition in the lower back. The use of a hypothetical question can crystalize your proof:
Q: Doctor, I would like you to assume the following. That at the emergency room right after the accident, Tom's X-rays showed an osteoarthritic condition. That although the X-rays showed bony spurs, Tom had never been treated for a back problem, and in fact, never felt pain in his lower back before this accident. That the MRIs you sent him for showed both a herniated disc impinging on the exiting S1 nerve root on the right as well as dessication or drying out of the disc at L5-S1 and narrowing of that disc space as well. Yet, as you told this jury not five minutes ago, the narrowing and dessication was a typical finding for a 55-year-old man, and that you could tell the herniation was an acute injury based upon the high signal or brightness of the herniated portion of the disc on MRI.
Q: Doctor, do you have an opinion, based on a reasonable degree of medical certainty, as to whether the disc herniation was caused by the accident?
Q: Do you have an opinion, to a reasonable degree of medical certainty, as to whether it was the pre-existing osteoarthritis or the accident that caused the herniated disc?
Q: Do you have an opinion as to whether it is the arthritis or the disc herniation which is the competent producing cause of Tom's pain?
Do not be concerned with streamlining your direct of the expert witness. The better method is to take a methodical approach to this problem, set forth objection-proof hypothetical questions, and enhance the opinion of your expert by using factual data already brought out on your direct case.
The use of hypothetical questions is equally as important in establishing liability. In any malpractice action, expert testimony is required to prove medical negligence. Here, hypothetical questions are the best way to prove liability. Imagine a scenario where the plaintiff's lawyer attempts to establish negligence in the absence of a hypothetical question:
Q: Dr. Caruso, did you review the records in this case?
Q: What did they reveal?
Q: Based on those records, do you have an opinion as to whether the defendant departed from accepted standards of medical practice as of June 29, 2003?
As you can see, this type of questioning is not particularly persuasive. Just as importantly, such bare-boned minimal questioning would most likely draw an objection from counsel based upon a lack of foundation. The better way is to question the doctor with a series of hypothetical questions which incorporates prior testimony of the defendant doctors and the records themselves:
Q: Doctor, I would like to assume the following facts as true. I would like you to assume that Tom McMurray was involved in an automobile accident where he was actually struck from behind by a truck. He felt immediate neck pain and was taken by ambulance to an emergency room. At that time they took X-rays of his Tom's cervical spine which were negative for fracture. While in the hospital he felt pain radiating into both arms. After a time he felt weakness and numbness in both legs. Do you have an opinion as to the significance of the pain in both arms and the numbness and weakness in both legs?
A: That is a clear sign of spinal cord compression.
Q: I would like you to further assume that the emergency room physician sent Tom downstairs for an MRI which revealed a large herniated disc at C4-C5 compressing the spinal cord. As a result, a neurosurgical consult was called with a Dr. Mechanowitz who observed diminished sensation to pin-prick in both arms as well as decreased biceps reflex, patellar reflex and Achilles reflex. Dr. Mechanowitz sent Tom home with instructions to come in to his office the following day. Tom's wife asked that Tom be kept in the hospital because she was afraid that her husband's health was rapidly deteriorating. Dr. Mechanowitz refused to admit Tom, so Mrs. McMurray asked that the ER physician intervene. Dr. Hannah, the ER physician refused, saying that was improper protocol. Do you have an opinion, to a reasonable degree of medical certainty as to what Dr. Hannah should have done at that time?
A: Dr. Hannah should have intervened and called the head of the service to see to it that Mr. McMurray was observed closely and not released.
Q: Do you have an opinion to a reasonable degree of medical certainty as to whether Dr. Hannah's refusal to intervene was a departure from good and accepted standards of medical practice?
A: It was a departure.
Departures and Causation
Do not forget, in a medical malpractice case, to immediately connect the departures with causation of injury.
Q: Do you have an opinion Doctor, as to whether that departure was a substantial factor in bringing about the injuries of Tom McMurry, including his paralysis?
A: It was a substantial factor, yes.
Q: I want you to further assume that, that night, Tom's pain increased and he could no longer hold his urine. He called Dr. Mechanowitz who told him to take two aspirin and call him in the morning. The next morning, Tom woke up paralyzed from the neck down. My question is Doctor, do you have an opinion, to a reasonable degree of medical certainty, as to whether or not Dr. Mechanowitz' failure to admit, follow and operate on Tom, was a departure from good and accepted standards of medical practice as of June 29, 2003?
Q: Do you have an opinion, to a reasonable degree of medical certainty as to whether Dr. Mechanowitz's failure to admit, follow and operate on the patient was a substantial factor in bringing about Tom's injury?
It is essential not to exaggerate or modify prior testimony in any way so as not to undermine your credibility while phrasing the hypothetical. Only those facts in evidence (or those taken subject to connection of proof to be adduced at a later point in time), may be included in the question. The manner, method and speed of delivery should be calculated to be of interest to the jurors and hold their attention throughout. Changes in the tone of your voice and position should be made to enhance your presentation.
9/21/2006 NYLJ 3, (col. 1)