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Cross-Examining Defense Medical Experts

Fairfax Injury Lawyer Brien Roche Addresses Cross-examining Defense Medical Experts

Brien Roche

Cross-Examination of Defense Doctor

The cross-examination of the defense doctor who did the defense exam or is appearing for the defense should address several issues. If standard of care is an issue then see the page dealing with that. Also see the pages dealing with cross-examination:Cross-examination in general, cross-examining expert witnesses, cross-examining brain injury experts

Lack of Independence

The lack of independence and objectivity of the doctor can be pointed out through the following:

  • Meaning of the word independence
  • Meaning of the word objective
  • Not hired by the court
  • Hired by defense counsel
  • He was paid by the defense
  • Talked extensively with a defense lawyer before testifying
  • Wrote a report for the defense lawyer
  • The defense lawyer is the one who brought him to court
  • No longer doing surgery
  • When you were doing surgery how much make per year from surgeries
  • This makes up for the loss of income
  • Percentage plaintiff vs defense
  • Money from defense work
  • Percentage of income from forensic vs patients
  • Prior testimony for defense
  • Frequency
  • Last time
  • Frequency of testimony for this defense counsel or colleagues
  • This at least creates appearance that you are not independent
  • You make a lot of money doing this type of work
  • That may mean that you’re really good at what you do.
  • But in your case the money mostly comes from the same group of people
  • And you recognize that if you were to agree with the plaintiff on a regular basis, you wouldn’t be making this kind of money
  • That is, your opinions are quite predictable

Cross-Examining Defense Medical Experts-Pre-Existing Issues

Your client was involved in a medium impact collision.  The client is 60 years old.  The client had no symptoms before but did have degenerative arthritis in the spine.  How do you deal with that? Get the doctor to state:

  • This is part of the natural aging process.
  • It is some times called wear and tear arthritis
  • People who do physical labor are more likely to show symptoms than are those who have a sedentary existence.
  • Anyone over 40 probably has some arthritis in their spine.
  • They are probably asymptomatic.
  • The harder a person has worked over their life the more of it they have

Low Speed Impacts

Low speed impacts are touted by the defense as being innocent. Low speed means minor damage. Minor damage to the car means minor damage to the person. However what that ignores is that it is not the speed at impact that counts. It is the suddenness of the change in speed. If I pull the chair out from under you as you sit down your movement to the floor is no more than 5 mph. However your injury may be major. When you hit the floor the stopping was sudden. It is that suddenness that caused the injury. Therefore keep in mind you need to look at the suddenness of the stopping or starting.

Differential Diagnosis

  • The process of using differential diagnosis means identifying possible causes and then eliminating all but one of them
  • Here the plaintiff had a positive straight leg raising test right after the injury
  • This means a nerve is being compressed
  • The possible causes are a tumor or bulging or protruding disc
  • There is no evidence of a tumor

Soft Tissue Injury Cases

  • You recognize that soft tissue injuries may be real injuries
  • Sometimes you see patients with soft tissue injuries
  • Sometimes these injuries are serious and prolonged
  • You have on occasion made certain diagnoses in regards to soft tissue injury cases, haven’t you and you’ve done so in instances where no particular injury showed up on the x-ray.  In fact you’ve done so in instances where there is no picture that expressly portrays the injury
  • This is because the radiographic devices are not sensitive enough to pick up the injury
  • In some of these cases you have prescribed physical therapy
  • In some of these cases you have prescribed medication
  • These patients for whom you prescribe physical therapy and medication have legitimate injuries
  • However in this case you don’t think that any of that applies to this plaintiff.

Now There Are Symptoms

  • Trauma such as a collision can trigger symptoms.
  • The arthritis is pre-existing but it produced no symptoms.
  • Persons with wear and tear arthritis might go their entire life with no symptoms
  • Now the symptoms are painful.
  • There may have been a loss of flexion.
  • These are symptoms that you typically don’t expect to get better.
  • Physical therapy however may help relieve the symptoms.
  • If the arthritis was made worse, that may cause some pain down the back of the leg.
  • The client can expect these flare-ups upon activity.
  • You’re not able to say when or if these symptoms will ever go away.

Cross-Examining Defense Medical Experts-Testing the Opinions

To test how strong the opinions are ask:

  • Opinions based on exam that lasted 20 minutes and record review
  • This usual pattern as basis for opinions
  • Treating doctor’s opinions based on course of treatment
  • Number of times come to court disagreeing with the treating doc
  • Can the witness state the opinion with 100% certainty
  • If not then why not
  • Ask how they handle this in their own practice

Cross-Examining Defense Medical Experts-The Document Review Doctor

Where the doctor has only done a document review and not examined the patient, ask the following:

  • In your own practice, you don’t render diagnoses without actually seeing the patient, do you?
  • In fact doesn’t the American Medical Association require that you see a patient before you render a diagnosis?
  • Are there practice guidelines requiring that you see a patient before you render a diagnosis?
  • What is a diagnosis?
  • What is the reason for these practice guidelines requiring a person is examined before rendering a diagnosis?

Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with cross-examination in general.

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Contact Us For A Free Consultation

Cross-Examining Defense Medical Experts

Fairfax Injury Lawyer Brien Roche Addresses Cross-examining Defense Medical Experts

Brien Roche

Cross-Examination of Defense Doctor

The cross-examination of the defense doctor who did the defense exam or is appearing for the defense should address several issues. If standard of care is an issue then see the page dealing with that. Also see the pages dealing with cross-examination:Cross-examination in general, cross-examining expert witnesses, cross-examining brain injury experts

Lack of Independence

The lack of independence and objectivity of the doctor can be pointed out through the following:

  • Meaning of the word independence
  • Meaning of the word objective
  • Not hired by the court
  • Hired by defense counsel
  • He was paid by the defense
  • Talked extensively with a defense lawyer before testifying
  • Wrote a report for the defense lawyer
  • The defense lawyer is the one who brought him to court
  • No longer doing surgery
  • When you were doing surgery how much make per year from surgeries
  • This makes up for the loss of income
  • Percentage plaintiff vs defense
  • Money from defense work
  • Percentage of income from forensic vs patients
  • Prior testimony for defense
  • Frequency
  • Last time
  • Frequency of testimony for this defense counsel or colleagues
  • This at least creates appearance that you are not independent
  • You make a lot of money doing this type of work
  • That may mean that you’re really good at what you do.
  • But in your case the money mostly comes from the same group of people
  • And you recognize that if you were to agree with the plaintiff on a regular basis, you wouldn’t be making this kind of money
  • That is, your opinions are quite predictable

Cross-Examining Defense Medical Experts-Pre-Existing Issues

Your client was involved in a medium impact collision.  The client is 60 years old.  The client had no symptoms before but did have degenerative arthritis in the spine.  How do you deal with that? Get the doctor to state:

  • This is part of the natural aging process.
  • It is some times called wear and tear arthritis
  • People who do physical labor are more likely to show symptoms than are those who have a sedentary existence.
  • Anyone over 40 probably has some arthritis in their spine.
  • They are probably asymptomatic.
  • The harder a person has worked over their life the more of it they have

Low Speed Impacts

Low speed impacts are touted by the defense as being innocent. Low speed means minor damage. Minor damage to the car means minor damage to the person. However what that ignores is that it is not the speed at impact that counts. It is the suddenness of the change in speed. If I pull the chair out from under you as you sit down your movement to the floor is no more than 5 mph. However your injury may be major. When you hit the floor the stopping was sudden. It is that suddenness that caused the injury. Therefore keep in mind you need to look at the suddenness of the stopping or starting.

Differential Diagnosis

  • The process of using differential diagnosis means identifying possible causes and then eliminating all but one of them
  • Here the plaintiff had a positive straight leg raising test right after the injury
  • This means a nerve is being compressed
  • The possible causes are a tumor or bulging or protruding disc
  • There is no evidence of a tumor

Soft Tissue Injury Cases

  • You recognize that soft tissue injuries may be real injuries
  • Sometimes you see patients with soft tissue injuries
  • Sometimes these injuries are serious and prolonged
  • You have on occasion made certain diagnoses in regards to soft tissue injury cases, haven’t you and you’ve done so in instances where no particular injury showed up on the x-ray.  In fact you’ve done so in instances where there is no picture that expressly portrays the injury
  • This is because the radiographic devices are not sensitive enough to pick up the injury
  • In some of these cases you have prescribed physical therapy
  • In some of these cases you have prescribed medication
  • These patients for whom you prescribe physical therapy and medication have legitimate injuries
  • However in this case you don’t think that any of that applies to this plaintiff.

Now There Are Symptoms

  • Trauma such as a collision can trigger symptoms.
  • The arthritis is pre-existing but it produced no symptoms.
  • Persons with wear and tear arthritis might go their entire life with no symptoms
  • Now the symptoms are painful.
  • There may have been a loss of flexion.
  • These are symptoms that you typically don’t expect to get better.
  • Physical therapy however may help relieve the symptoms.
  • If the arthritis was made worse, that may cause some pain down the back of the leg.
  • The client can expect these flare-ups upon activity.
  • You’re not able to say when or if these symptoms will ever go away.

Cross-Examining Defense Medical Experts-Testing the Opinions

To test how strong the opinions are ask:

  • Opinions based on exam that lasted 20 minutes and record review
  • This usual pattern as basis for opinions
  • Treating doctor’s opinions based on course of treatment
  • Number of times come to court disagreeing with the treating doc
  • Can the witness state the opinion with 100% certainty
  • If not then why not
  • Ask how they handle this in their own practice

Cross-Examining Defense Medical Experts-The Document Review Doctor

Where the doctor has only done a document review and not examined the patient, ask the following:

  • In your own practice, you don’t render diagnoses without actually seeing the patient, do you?
  • In fact doesn’t the American Medical Association require that you see a patient before you render a diagnosis?
  • Are there practice guidelines requiring that you see a patient before you render a diagnosis?
  • What is a diagnosis?
  • What is the reason for these practice guidelines requiring a person is examined before rendering a diagnosis?

Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with cross-examination in general.

Contact Us For A Free Consultation

Contact Us For A Free Consultation