1. Cross examination: one fact one question.
The only way to keep control of the doctor on cross examination is to ask questions with one fact that calls for a yes or no answer. You are giving a speech in the form of questions. The facts in your questions should stand on their own and not depend on any information the witness has in their head. When deposing the defense doctor, there are plenty of facts to pull from. Here are some sources to pull facts to put in to your leading questions. The defense doctors report, plaintiff’s medical records, the doctor’s deposition in your case, depositions the doctor has given in other cases, journal articles written by the defense doctor.
2. Summarize the important admissions with leading questions.
Many times a defense doctor will admit a few things in deposition that help your client’s case. We should all confirm those facts with leading questions on cross examination. For example in most cases defense doctors will admit that a traumatic event can result in an injury that is appropriate to treat with physician supervised physical therapy or chiropractic care within six weeks of the injury. Confirm the amount of the bills he or she agrees the collision was a substantial factor in causing.
At deposition get the defense doctor to admit that your client experienced pain following the injury and that patients of theirs have complained of pain for varying periods after an event like the one your client went through. Most defense doctors will admit that a certain segment of the population is predisposed to injury and that prior injury can make people more susceptible to greater harm from a later injury. Here are some questions to try at the defense doctor’s deposition. These are not cross examination questions for trial.
Q. Would you agree that some people are more fragile than others?
Q. Would you agree that fragile people are often predisposed to greater injury or pain from an injury-producing event?
Q. Do people experience pain differently?
Q. Some people have a greater threshold for pain than others?
Q. Is there a precise way to measure pain?
Doctors understand that a person’s body can be “healed” but they can still have pain. A defense doctor may be using the work “healed” to mean that, architecturally, the body has reached maximum medical improvement. Some defense doctors will admit that symptoms, such as pain, last long after the body has “healed.” Focus on symptoms rather than injuries or healing.
3. If the defense doctor’s file is incomplete…
Often defense doctor’s files will be incomplete. They may not have all of the prior medical records and most commonly defense doctors will not look at the radiology images themselves. Typically their review will rely on the written report of the radiologist who interpreted the images. This is a good opportunity to point out where the defense doctor got his information. Walk through with the defense doctor how he got the records of plaintiff. Ask, “All the records you got were provided by the defense attorney, correct doctor? Confirm the defense attorney did not provide the images of plaintiff’s spine from her X-ray, MRI or CT scans. Most doctors will admit that it is their general practice to review MRI images themselves before making a decision on whether or not to perform surgery.
Remember this issue applies with equal vigor to the plaintiff’s treating doctors and testifying healthcare providers. Beware, treating doctors who are not made aware of important medical records, or information about prior trauma are just as susceptible to this type of cross examination.
4. Some symptoms improved: You believed my client when she said her headaches went away?
Keep an eye out for symptoms or pain the plaintiff has that get better. For example it is common for injured people to have multiple locations of pain early on, some of which resolve, only to be left with one or two chronic conditions that are significantly affecting their lives. If this is the case, you can employ the following cross examination.
Q. Did Ms. Jones’s say her headaches went away?
Q. Did Ms. Jones’s say her low back pain went away?
Q. Did you believe Ms. Jones when she said her headaches went away?
A. I did.
Q. Did you believe Ms. Jones when she said her low back pain went away?
A. I did.
Q. She was honest with you about that.
A. Yes she was.
Q. Did she have any complaints in any other part of her body when you examined her?
A. Well, yes she said her neck was still hurting?
Q. Did you believe her when she said her neck was still hurting?
A. Well No or Yes I did. [Either answer is good here.]
Q. [If they Say no.] You do not state anywhere in your report that you did not believe her, true?
Q. Did you label Ms. Jones as a malinger in your report?
5. Show that the defense doctor is more familiar with law firms in town than the names of the people he has testified against in court.
You may be able to make the point on cross-examination that the defense doctor is very familiar with the names of the defense law firms that refer him defense medical exams, but less familiar with all of the individuals he has testified against. At the doctors deposition see how familiar the doctor is with the names of the more prominent firms that send him cases. Ask which firms refer him the most defense medical examinations. If he says he does not remember, provide the names of some firms you know have referred business his way. He will remember some.
Q. Do you know the law firm of Smith, Jones and Johnson?
Q. Do you know the law firm of Levi & Louis?
Q. These are law firms who have referred you business?
Q. Doctor do you know Javier Martinez?
Q. Do you know Tom Jones?
Q. Do you know James Lee?
Q. Do you know Sally Smith?
[Make sure you get real names from real people, and have the old reports ready to back it up.]
Q. You know the law firms I asked you about, true?
Q. You don’t know the names of any of the people you have testified against in Superior Court?
Q. You don’t remember any of them do you?
Q. You don’t have any responsibility for these people do you?
Q. You don’t care for them as their doctor do you?
Q. You don’t treat them?
Q. You don’t have to worry about them at all
Q. You just have to produce a report that says they are not hurt?
Q. You just have to produce a report for the law firm that hired you?
6. Doctor do you have any private patient’s that you’re responsible for?
Many defense doctors still have a few private patients that they see. Here is a line of questions that exposes that absurdity that everyone gets better at the same rate, all within six weeks time, all with a short course of physical therapy and some home exercises.
Q. Dr. Do you have any private patient’s that you’re responsible for?
Q. Do some of them get hurt in accidents?
Q. Do some of them get hurt swinging a golf club?
Q. Playing tennis?
Q. Jogging down the street?
Q. Stepping of a curbing
Q. Bending over the counter to shave?
Q. Changing a baby’s diaper?
Q. Any impacts in any of those incidents?
Q. Any property damage?
Q. Do you ask for pictures of golf clubs, or baseball bats, or tennis racquets?
Q. Do you have any pictures inside your private patient’s charts?
Q. Have you ever taken care of anyone who was ever hurt in an auto accident?
A. Yes I have.
Q. Have any of them had neck injuries?
A. Yes some of them.
Q. Have any of them had back injuries?
A. Some of them have.
Q. Do you actually treat them for this?
A. Yes I do.
Q. Some of them get well right away.
Q. Have you ever heard of the word chronic?
Q. What does that mean?
A. Well it means something that long lasting and long standing.
Q. Over the years have any of your patients had chronic back problems?
A. I am sure there have been a few of them.
Q. Do any of them have chronic neck problems?
A. Occasionally that will happen.
Q. Well if they say they are still hurting do you still take care of them?
Q. Do you send some of them out for MRI’s, PT, or pain management?
Q. My client told you the truth. Her headaches got better, her neck got better, and her back is not better?
Q. And she was in an auto accident just like some of your private patients.
Q. Don’t you think doctor that she could have been hurt to in this accident?
A. [There is not a lot he can say.]
7. Doctor do you have pictures of vehicle damage in any of your private patients charts?
Here is a line of questions to point out the absurdity of basing a medical diagnosis on property damage estimates or photographs of car bumpers. Typically you can get these admissions during the deposition of a doctor. Many medical doctors will admit at deposition that there is little correlation between the extent of injury to the amount of damage to a vehicle.
Q. Dr. Did you get a copy of the repair estimate in this case?
Q. Did you put a copy of the repair estimate in the plaintiff’s file?
Q. Have you ever asked any of your own patients for a repair estimate from a body shop?
Q. Don’t you just ask your patients if they were hurt?
Q. Don’t you listen to their subjective symptoms?
Q. Aren’t their subjective complaints the best tool you have to diagnose their problems?
Q. Do you have any pictures of a fender or a bumper in any of your private patient’s file?
Q. Have you ever made a diagnosis of any spinal condition bases on a photograph of a bumper?
This is a good rebuttal to the common defense in the low impact case of just use your “common sense”. The trial that starts with a big picture of a bumper and the refrain, “use your common sense.” We need to turn that around and say, “Yes, use your common sense. Members of the jury, when you want to know why your back hurts do you look at your golf club, or your tennis racquet or your bumper? No, you feel the pain and you tell your doctor.”
Jurors don’t try to figure out if their back hurts based on a physics formula, they cannot understand. Pose the thought, “Has anyone in this courtroom ever gone up to the black board to figure out their injuries?”
8. Create leading questions with facts lifted from the medical records.
We should take some pointers from defense lawyers from their cross examinations of plaintiffs. The best cross examinations of an injured plaintiff uses leading questions with facts taken from the subjective complaints lifted from the medical records. A similar strategy can be used when cross examining the defense medical doctor. Here is a line of leading questions using facts lifted from medical records.
Q. You reviewed the medical records of Ms. Smith’s treating doctor, Dr. Jones?
Q. You are aware on May 1st Ms. Smith reported to Dr. Jones that her right thumb was numb?
Q. Again on May 15th she reported that her right thumb was numb?
Q. And that right thumb numbness was documented by Dr. Jones in her chart on that same day May 15th.
Q. Again on May 22nd Ms. Smith reported to Dr. Jones that her right thumb was numb?
Q. And again that symptom of right thumb numbness was documented by Dr. Jones on May 22nd.
Q. These facts are documented in Ms. Smith’s medical records.
Q. You do not dispute the truth of these facts do you?
9. Limit the defense doctor who wants to testify about malingering.
Defense doctors will often testify on matters on which they are simply not qualified to offer testimony. A common one is testimony about malingering or secondary gain. If the physician starts stating that the client is a malingerer, or advancing secondary gain, get them to admit that these are diagnoses under the DSM IV or DSM IV-R. Have a copy of the DSM criteria for malingerer and ask the doctor to tell you what they are. Typically they cannot. Get them to admit that they are not licensed to do psychology, that they are not practicing as psychologists or psychiatrists and they refer their patients to professionals in psychology / psychiatry if they think that they need such treatment. This demonstrates that they are not licensed in that field and, therefore, lack the qualifications to provide testimony on those subjects. Have them admit that they did not preform a psychological examination, psycho-social history and/or did not conduct the battery of psychological tests such as the MMPI or MMCI. This shows that they lack a foundation upon which to provide testimony as to a psychological diagnosis. Remember your deposition is as much about limiting the scope of testimony as it is about knowing what that testimony might be. File a motion in limine to preclude that testimony.
When preparing for your cross examination of the defense doctor keep in mind that each case is unique. Trying to use cookie cutter cross examination techniques many not serve you well. Practice your cross examination on your colleagues and friends. Have them read the DME report and deposition and see how well your leading questions work. Does each question truly stand on its own and call for a yes or no answer? Does each of your leading questions call for facts and not characterizations or opinions? After your preparation is complete, remember the jurors expect the plaintiff to take some hits from the defense doctor during the direct examination. Your job is to not make it worse on cross. Make some points using the powerful tool of the leading question and sit down. Remember the words of Voltaire: “The perfect is the enemy of the good.”
Our website is http://www.stoll-law.com. Follow us on Twitter @AlbertStoll. We are a firm of experienced personal injury attorneys taking on challenging cases when others back down since 1994. What separates us from the rest? We are the only California Injury law firm with a former California Highway Patrolman and accident reconstruction expert who now works as a full time lawyer.
Firm founder Albert G. Stoll, Jr. has been named to Northern California Super Lawyers each year since 2006, is AV rated by Martindale-Hubbell, and was awarded the 2009 “Civil Justice Award” by the San Francisco Trial Lawyers Association. In addition to Mr. Stoll’s experience, attorney Walter A. Haynes, IV is a former California Highway Patrolman, accident reconstructionist, and licensed private investigator, who has investigated over 3,000 motor vehicle accidents; attorney Stephen MacLean draws on two decades of experience in the medical industry to give the firm an understanding of important medical issues at play in personal injury, product liability and medical malpractice cases.