Planning for the Use of Medical Art in Mediation or Trial
Admissibility of medical art depends on what use the trier of fact is to make of it, and on its probative value versus its potential prejudicial effect. The criteria by which medical illustrations could be deemed inadmissible are immateriality, lack of necessity, irrelevance, unreliability, and being cumulative. In addition, the judge must be satisfied with respect to an exhibit’s integrity.
Anticipating objections, the lawyer and illustrator must be mindful of:
accuracy, correctness and clarity
distortion, exaggeration or unnatural colour
appropriateness of labels and citations
misleading suggestion
inflammatory or gruesome imagery
Medical illustrations are submitted as instructive aids in conjunction with the testimony of an expert witness: objections on the grounds of instructiveness, ‘not the best evidence’, and hearsay, are baseless.
Reliability of a medical artist can be assessed by a review not only of his/her portfolio but also of his/her curriculum vitae, since publication of artwork is an indicator of reputation and ability in the field. Graduation from one of North America’s accredited graduate programs in medical visualization should be a consideration.
As a creator of visual aids admitted to court, the medical artist may be called to testify as to their accuracy though this is uncommon. Testimony is to technical aspects of the creative process (e.g. software used), and to substantiate choices made regarding the depiction of anatomy. However, while understanding terms used radiology and surgery, the artist is not qualified to offer opinion evidence with regard to these or other medical disciplines. An example would be attempting to explain diagnostic findings or the suitability of a procedure.
Animation adds motion and the dimension of time to demonstrative evidence, and is usually offered as a simulation or reconstruction. In so doing, animation can distort time, space and gravity: introducing an appropriate expert such as a biomechanics engineer to comment on the movement of body parts is a precaution. Provided that the expert can attest to the accuracy of the animation, there should be no need to call the animator.
A medical artist’s report is not subject to early and full disclosure but can be included with the materials. The report summarizes the process of creating imagery and storyboard development, notes any expert review, lists references and reports used.
A medical illustration not only distills reports and notes into a clear image but enhances the impact of an argument, being retained in the mind’s eye while attention is otherwise engaged.
