Emergency Physicians: Overlooked Front-Line Experts for Criminal Defendants

Steve Mercer, Esq and W. Anthony Gerard, MD

An emergency physician is an “overlooked front line expert” for a criminal defendant. In a wide range of criminal cases, victims, defendants, and witnesses may receive treatment in a hospital’s emergency department. A common occurrence is that an attorney may overlook the emergency physician as the best expert.

A medical expert’s review of the healthcare records can provide powerful exculpatory or mitigating evidence, but defense attorneys may encounter challenges when searching for the right medical specialist. Finding the right fit between medical authority and the scope of expertise required in a case can be difficult, and selecting among the numerous fields of specialized medicine can be overwhelming. Defense attorneys are too often unaware that emergency physicians are specialists on many relevant medical issues.

In a case where the victim, defendant, or witness received treatment in an emergency room, a criminal defense attorney (“CDA”) or public defender (“PD”) will likely benefit from consulting with an emergency physician (“EP”). There are many criminal cases with injuries including: assaults, robberies, pedestrian or vehicular traffic accidents, overdoses, drug use, and intoxication. EPs are trained across these areas and also have a broad scope of practice. These factors combine to give expertise that is helpful to criminal defense cases. Since they need to know how to manage emergencies in every specialty, the emergency physicians’ scope of practice includes every organ system from the cradle to the grave.

Many attorneys may have overlooked emergency physicians as expert witnesses. EP’s regularly interact with law enforcement and the legal system, and could be ideal experts for defense attorneys.

The following conversation between Defense Attorney Steve Mercer and Dr. Tony Gerard, highlights some of these issues.

Hello, I’m Steve Mercer. I’m an attorney, now in private practice, and formerly was the head of the Office of the Public Defender for Baltimore, Maryland.

Hi, I’m Dr. Tony Gerard (actually Wray Anthony Gerard, but I go by Tony). I’m a career emergency physician and a medical expert for criminal defense attorneys and public defenders.

Steve:  Tony, how did you become an expert for CDA and PDs? 

Tony (laughing):  Well, Steve, you may know more about this than I do, since you found me. If I remember correctly, you found my name on a list of expert witnesses, and asked if I would be an expert for your office. Maybe someone in your OPD in Baltimore found me through an internet search for expert witness?  I’m listed on a few websites for med mal experts.  Do you remember how you found me?

Steve:   I’m pretty sure it was an expert directory.

Steve: Did you know that you would be a good expert?

Tony: I was very comfortable with the medicine, and had already been doing medical malpractice cases, so I knew I was a good expert.  But I was surprised I could help in criminal defense.

I’m a full time ER doc (or more properly – EP – emergency physician). When I started working for your office, I was surprised at how often I could help. I’m not a trained forensic scientist, so there are questions and issues that I can’t address. But since a lot of  defense issues are related to an injury or overdoses I am often able to help. I also learned that some attorneys just need help understanding what is in a medical record. I’ve realized that reading a lengthy medical record is as for me as it might be for you to read a long legal document that looks intimidating. An attorney can easily read 20 pages of legalese that would take me many hours to get through, and I still wouldn’t understand a lot of what I was reading.

Steve:  Why do you think emergency physicians make good experts?

Tony: Well, I’m not trying to praise myself, but I think that the expertise of an emergency physician is helpful on many cases. I think this is an undeveloped resource for public defenders.

I’ve learned that I can often help with questions that the attorney has like: What are the actual injuries in this case? How is it most likely that this injury occurred? Do the injuries fit the description of what happened? How intoxicated was this patient? These questions are directly relevant to the expertise of an emergency physician.

Steve: How often do medical records help with criminal defense cases?

Tony: Well, you might be able to answer that better than me, but I’ve been surprised how often I can help. Even just understanding what’s in a medical record, or how the medical record is written is often helpful to attorneys.

With the advent of electronic medical records, finding relevant information in a huge medical record can be difficult. Often there are only a dozen or so pages that are helpful, and these are buried in hundreds or thousands of repetitive notes and template charting.

I’ve found that there is often medical information that is very helpful, or even clues to an alternate defense that the attorney did realize were there.

But even when the medical evidence is indeterminate, there are often reasons for there to be “reasonable doubt” about how an injury occurred.  And having an objective medical opinion—and clarity about the extent of injury or intoxication—is often helpful. 

What do you think, Steve?

Steve: Because of the pressure of caseloads and time, having an EP on “speed dial” is vital to success when there are medical records to review. In fact, even when your review tells the public defender that the medical evidence is unhelpful, that can be important information for the client to understand when making decisions about how to proceed with their case.

Steve: From your perspective, how do you think juries react to an emergency physician?

Tony: The public holds emergency physicians in high regard. They know we are on the front lines of medical care. In the last few decades, some of the best-known television medical dramas featured fictional emergency physicians who were brilliant and likeable. I think of George Clooney on ER. 

I’ve learned that most juries react favorably to an expert’s presence in the courtroom. Even if we are just telling the jury what is in the medical record, this objective testimony is often helpful.

Since my role as an expert is limited to objectively evaluating the medical evidence, I often don’t know what really happened. But I have learned a defendant’s version of events is often helpful. Even when a prosecutor challenges this by asking about other possibilities, the phrase, “the medical evidence is consistent with,” helps to tell a narrative can be very convincing to a jury or generate reasons to doubt.

I tell the truth every time. But medical facts are often more supportive than many attorneys realize.

Steve: Why don’t more emergency physicians do defense expert work?

Tony: I haven’t yet found a way to promote this among my EP colleagues. I think many emergency physicians would be good at this. All EP’s have the clinical expertise, but some make better expert witnesses. Medical experts need to be “likeable” to appeal to a jury, but also have gravitas and be able to give an authoritative medical opinion.

All emergency physicians have some training in forensics, but most are not forensic experts.  But my colleagues could help criminal defense attorneys if they were aware of the need. Even just reviewing medical information is often helpful to attorneys, and that is something we do every day. And most medical issues related to criminal defense are part of our clinical areas of expertise.

After two decades of working in criminal defense as an expert witness, I have come to recognize we (“ER docs” and public defenders) often serve the same segment of society. With overlapping clients, we see the same problems from a different perspective. We often share the same type of clients/patients, since our emergency department patients are like your clients or the alleged victim of a crime.

What are some of the challenges for attorneys in finding a medical expert?

Steve: The big challenges are practical: time and money. But also, defense attorneys would benefit from training about how to use an expert, like a EP, in a criminal case.

Do you have suggestions for attorneys who are trying to find experts?

Tony: With time constraints and financial limitations, finding a medical expert might be difficult for many public defenders and CDAs. However, a good EP could be a valuable resource for a lot of these cases for an initial review. For example, an initial expert review of the medical records can rule out defenses, inform the attorney about other issues, or point the attorney to another expert, like a neurologist or radiologist that the attorney retains for trial. Often, the EP can recommend a specialist within the field who is highly regarded by their colleagues.

Steve: Anything else you’d like to say to my attorney colleagues who are reading this?

Tony: I’ve come to admire the difficult work involved in criminal defense, and wanted to thank all of you who serve in this way. 

Please let me know if you have any questions, or if there is anything I can do to help you. (If you can’t find an emergency physician in your area who would be willing to serve as an expert witness, I might be able to refer you to someone). My contact information is listed on my website: https://www.tonygerardmd.com/

But Steve, I want you to have the final word on this, so what would you add?

Steve: Your work is a public service to many indigent defendants who deserve a tenacious defense.