This article was published in The Trial Lawyer, Spring 2024, Volume XII, Number 1 (click here to view publication – pgs 22-26 ).
The Importance of Medical Illustrations and Animations in Trial
By Tim O’Brien and Stephen Mader
In any trial involving personal injury or wrongful death, experience shows that a simple acronym reminds the trial attorney of the channels of efforts he should employ to give his client the greatest likelihood of a successful verdict: E.L.F. Put simply, the trial lawyer must: Eliminate as many of the bad facts and as much of the “white noise” from the trial as he possibly can; Leverage the undisputed facts to the best of his client’s advantage; and Focus the juror’s attention on the right side of the disputed issues. While the E primarily is achieved through pretrial motions practice, the L and F persist through the trial from voir dire to the last word in closing argument.
Figure 1: Medical illustrations can focus the juror’s attention on the critical matters of a PI file.
The Use Of Medical Illustrations And Animations
One of the key mistakes of young attorneys at trial is to quickly gloss over undisputed facts and go to trial preoccupied with winning the contested issues. The thought often is, “why waste time proving something that is not in dispute?” As an advocate, it is human nature to center one’s efforts on the contested issues to prove “I’m right” and “that other guy is wrong.” But the ultimate goal is to win one thing: the trial itself. The trial attorney must leverage the undisputed facts because he will win that particular battle every single time and gain credibility for the necessary efforts to prevail on the contested issues.
The use of medical illustrations and animations at trial are critical to maximizing the leverage of the undisputed facts and properly educating the jurors so that they focus on the correct side of the disputed facts. Jurors want to feel comfortable with complex medical issues. Using medical illustrations and animations empowers the jurors to understand the medical issue and, more importantly, to appreciate the magnitude and reason for the loss the plaintiff has experienced as a result of the defendant’s negligence. However, poorly conceived and executed medical illustrations can backfire on the trial attorney and put the trial team’s credibility at risk. The conceptualization and creation of medical illustrations and animations should be done at an early stage of the litigation. Design input and approval from the treating physician or medical expert are essential.
Figure 2: Medical graphics can portray a broad range of complex issues.
Case Example
Mr. Michael Ngo was the restrained driver of a large SUV that hit a semi. He sustained significant right lower limb injuries including to his thigh and ankle. Radiology reports indicated that his right femur demonstrated a “…comminuted…fracture of the proximal to mid-portion of the right femoral diaphysis” with “at least one shaft width medial displacement and at least 4cm of proximal migration of the major distal fragment.” A large posterior butterfly fragment and associated soft tissue swelling were also noted. His ankle was also found to be fractured.
Surgery that the orthopedic surgeon undertook to repair the femoral (thigh) and ankle fractures involved extensive multistep procedures — as described in the three-page operative note.
To repair the thigh bone, the surgeon applied traction to the leg to make the ends of the fractured bone align. A guidewire was inserted through the center of the femur and the drilling of a central core through the marrow (referred to as “reaming of the intramedullary canal”) was performed. An “intramedullary IM rod” was placed over the guidewire and hammered through this hollowed-out central core to bridge across the fracture site to facilitate healing. Screws were then inserted through the femur to secure the rod in place, preventing it from twisting or moving. Swelling over the mid-thigh was incised with a scalpel, draining 100 mL (almost half a cup) of blood from the fracture location. A drain was placed into the wound and the incisions were then closed with staples.
Creation Of Animations For This Case
Details contained in the operative report as well as the pre-op and post-op films were complex. A full-color 3D animation was created to visually communicate the key steps that were involved to repair the femoral injury, allowing the viewer to readily understand the intricacy of the surgery, the incisions that were made (and stapled closed) and the hardware inserted into Mr. Ngo’s leg.
Figure 3: Still frames from an animation demonstrating the details of a femoral fracture repair surgery.
A similar animation was created to demonstrate repair of a “…transverse medial malleolus fracture with [comminution] of the anterior medial aspect of the mortise” in a straightforward, understandable manner.
Figure 4: Still frames from animation demonstrating ankle surgery to repair a fracture.
The Picture Superiority Effect
Much has been written about how visuals are better at helping people remember information. This is called the pictorial superiority effect (Snodgrass 1977, Maisto 1992, etc.), and indicates people are more likely to recall information presented to them in picture format than in text or verbal format.
Retaining complex medical information relies on working memory, which has limited capacity. Visual stimuli are processed more efficiently, and retained and retrieved from memory more effectively, than verbal stimuli. Due to this, visually explaining the medical record is critical in any case where a significant amount of unfamiliar information is being discussed — such as in a trial that involves medical issues.
This principle was applied for the creation of the animations for this case. For example, details in the OR note were far too complex for the jury to understand, let alone retain them.
Visual Communication Of The PI Case
Several ideas should be considered when visually communicating the medical content of this kind of PI file. Overloading cognitive perceptions and processing can negatively affect recall of critical information when a jury is learning about a case and later deliberating on it. Packaging complex concepts into digestible chunks of information improves understanding and aids recall. Repetition and capitalizing on different learning styles can enhance retention. Simplifying information and other visual approaches can optimize working memory and perceptions.
Make it vivid, make it believable. The essence of demonstrating this case was to show the details of both surgeries in a clear and realistic manner. A vivid portrayal of the key steps employed in the operative procedures were necessary to provide a true understanding of what was involved. The surgeries on both the femur and ankle bones were extensive, entailing incisions, alignment of fractured bone ends, removal of loose bone fragments and insertion of hardware.
Compare and contrast visual elements. This case included x-rays documenting the trauma findings as well as the postoperative appearance of the femur and ankle. However, lay people are typically unable to understand radiological images due to their technical nature and inherent medical content.
X-rays and other types of images (e.g. MRIs, CT scans), require specialized knowledge to interpret. Segments in the animations created for this case translate the x-rays into visual
representations that make them understandable by lay people, and support the 3D-modeled anatomical pre-op and post-op portrayals.
Make it memorable. With the exposition of voluminous information entailed in the PI file — much of it complex medical concepts that are difficult to recall, making the key issues stand out is paramount. Visual images are more memorable because they engage multiple senses and cognitive processes. Not only do they simplify complex concepts, they also create mental associations and evoke emotional responses, fostering a deeper understanding and retention of key information.
Accommodate different learning styles. People don’t all learn the same way. Different learners may require different forms of demonstrative evidence that optimize connection to their dominant neurological channels and cognitive perceptions. Using a combination of auditory, visual and kinesthetic stimulation (in the form of medical illustrations, animations, interactive media and 3D models), reinforces key points and maximizes information retention throughout the duration of a trial.
Build on the obvious. It’s important not to assume the jury perceives evidence as self-evident. Demonstratives in a medical case can clarify key issues, provide context, and reinforce arguments to ensure all litigation participants end up on the same page. Addressing issues proactively in visual format ensures case intricacies are presented clearly and compellingly to the jury, while reinforcing messages that may not be obvious to all.
How To Use Medical Animations Effectively At Trial
At trial, the use of these kinds of medical animations must be metered so that the jury is not desensitized to the information conveyed and the magnitude of the client’s loss. In this case example, the automobile collision caused the plaintiff to suffer significant injuries that required open reduction internal fixation of the fractures.
Use the full-length animation one time during the evidence. Let the main expert or treating surgeon stop, rewind, and emphasize critical parts of the animation as she explains the cause of the fracture, the need for the surgery, the process of the surgery, and what will be in the plaintiff’s thigh and ankle for the rest of the plaintiff’s life. The entire animation may be only three minutes long if played from beginning to end. But the animation loses its impact without the surgeon stopping as she sees fit to emphasize or teach a particular point. It is an excellent didactic tool and, at the end of the twenty to thirty minutes of testimony from the surgeon, the complex medical issues will have been boiled down to an illustrated teaching that is no longer in length than the average American sit-com.
On cross-examination of the opposing medical expert, use quick “reels” from the animation that the expert has to agree with. The full-length animation should not be used again during the presentation of evidence: that will come later. Use stills or short reels from the animation and have them in the “holster” ready to go at the appropriate moment on cross. This is a particularly effective method to stop a narrating expert in his tracks and get back to the items that he has to concede because they are undisputed. Make the opposing expert watch the 20 to 30 second reel, and then ask simple yes/no questions about the manner of the injury, the need for the surgery, the permanence of the hardware placement, etc. This technique serves the dual purpose of corralling the opposing expert while reminding the jury about key portions of the full-length animation they saw during the plaintiff’s case-in-chief. Stills from the animation can also be used to remind the jurors about the plaintiff’s expert testimony and to stress the magnitude of damages and permanence.
While the full-length animation should be used only once during the presentation of evidence, it can and should be used again during closing argument. This takes practice and repetition. If the animation is two minutes and 30 seconds long, the attorney should craft a portion of his closing to exactly that portion of time so that he delivers a precise argument on the magnitude of damages while having the animation running at the same time. It takes practice and repetition and refinement, but it is worth the effort. For that discrete portion of closing argument, there should a well-defined argument that has a beginning, an emotional peak, and an appeal to logic — all within the runtime of the animation. This can be done, effectively, immediately before discussing what should be filled in on the verdict form damages line.
Jurors remember a lot more of what they see than what they hear. Through the effective use of medical illustrations and animations at trial, jurors are not only educated about the medical issues, they are empowered to better understand and appreciate the magnitude of the plaintiff’s loss. Through choreographed use of the elements of these tools, the trial attorney can better leverage the value of the undisputed facts and focus the jurors’ attention on the correct aspects of the issues in dispute.
All of these techniques were used in Mr. Ngo’s case. At baseline, his case involved a right-sided ankle fracture and femoral fracture, resulting from a motor vehicle collision: at trial, the attorneys decided to proceed with no economic damages blackboard. The undersigned attorney used these trial techniques in combination with the undersigned medical illustrator author’s illustrations and animations, to aggressively leverage the undisputed facts and focus on the correct aspects of the disputed facts that needed focus. The jury returned a verdict in excess of $8.2 million in non-economic damages. Prior to trial, the maximum settlement offer from the defendant was less than $100,000.00. The use of medical illustrations helped to leverage the undisputed facts and focused the jurors’ view of the disputed facts in such a way that they regarded them as facts in the plaintiff’s favor which never should have been disputed.
All images © Artery Studios Inc.
Timothy O’Brien is a senior shareholder at Levin Papantonio Rafferty board-certified civil trial attorney who concentrates his practice in the areas of mass tort litigation as well as single-event personal injury and wrongful death litigation.
Stephen Mader is a Certified Medical Illustrator and the President of Artery Studios Inc., and lectures on “Sequential Medical Communication: Demonstrative evidence for the courtroom” at the graduate level.