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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

Not Independent, Not Objective, Actually Biased

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”
  • Meaning of the word “bias”
  • Review specialty guidelines from Pat Malone’s site that require doctors to be impartial and honest
  • Not hired by the court
  • Hired by defense counsel
  • 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: 95% paid by defendant
  • Percentage of income from forensic vs patients
  • Prior testimony for defense
  • Frequency, length of relationship, how long worked with defense counsel, socialize with defense counsel
  • Last time
  • This at least creates appearance that you are not independent
  • You realize the jury will be instructed that it may disregard expert testimony if not objective and if it is biased
  • You are not here as an advocate
  • You are not promoting one side
  • You simply call it as you see it
  • Your job is to be truthful

Money Cross-Examination

  • Money from defense work
  • 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
  • Fees in this case
  • You consistently testify for the defendant
  • This creates at least the appearance of you being allied with one side over the other
  • This creates the appearance of favoring one side over the other
  • If your reputation was one of being objective then probably both plaintiffs lawyers and defense lawyers would call you
  • It is predominately the defense lawyers that call you
  • Your litigation-related business is a well-oiled machine
  • It is a professional corporation
  • You have an elaborate fee agreement with the defense lawyers
  • Do you have any relatives on your payroll for that business?
  • How much do those relatives make?
  • The income that this professional corporation derives is essentially from a single source
  • The gross receipts of that business
  • You maintain that in spite of all that money that this professional corporation makes, that does not influence your judgment one bit
  • You are still objective
  • You are not biased
  • You are completely honest

No Duty to Diagnose or Treat

  • You owe no duty to properly diagnose the plaintiff’s condition.
  • You owe no duty to the plaintiff to properly treat the plaintiff’s condition.  The treating physician does owe a duty to diagnose properly.
  • The treating physician does owe a duty to treat the patient consistent with the diagnosis.

The Treating Doctor Got it Wrong and the Plaintiff is Lying

  • Your opinions are based upon one office visit with the plaintiff and record review
  • The treating doctor knows the plaintiff better than you do
  • Show me what facts in the record that the treating doctor was not aware of
  • Review the records of the treating doctor
  • Cover with the witness what is in his report that is not in the treatment records
  • Nothing in the treatment records that prescriptions were not justified based upon the complaints of pain
  • No one said that the plaintiff was not having real pain.
  • Force the witness to be honest to state expressly whether or not he thinks the plaintiff is faking or not
  • The treating doctor got it wrong
  • The numbers of times that testify that the treating doctor got it wrong
  • The plaintiff actually fooled the treating doctor
  • When the plaintiff said that his pain was 7 out of 10, was he lying?
  • The treating doctor committed malpractice when he wrote pain prescriptions for this plaintiff
  • The spouse was lying when he or she described the pain of the plaintiff
  • Who else is lying?
  • The lay witnesses lied

Facts Omitted from your Report

  • In a report you cited certain facts that you relied on
  • What are the facts in your report that support the need for the plaintiff’s treatment and that he is still disabled?  Cite those facts.  These are the only facts.
  • You omitted from your report a host of facts that support the disability of the plaintiff and the need for treatment.

Other Records

  • Was the opinion formed before the reviewing doctor had all the records?

Going Outside of Specialty

  • Your specialty is orthopaedics.  You have expressed opinions outside of that specialty.

No Medical Test is Perfect

  • No medical test known to man is 100% accurate
  • All have some false negatives
  • Explain what that means

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 sometimes 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.

There is no reliable scientific data to suggest that there is any correlation between the amount of property damage and the extent of personal injury.

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.
  • Where the defense doctor claims that the plaintiff should have healed within six weeks, inquire as to whether or not the stimulus is still present.  If the pain stimulus is still present, then one would expect the symptoms to still be present.
  • Get the doctor to acknowledge that everybody has a different pain threshold.  The doctor’s pain threshold may be very high. Another person’s pain threshold may be very low.  That governs their reaction to pain.

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.

Permanency

  • Regardless of where the symptoms came from, you agree that the symptoms now are permanent?

Herniations

In terms of cross-examining defense personal injury experts as to the cause of a herniated disc the questioning can go as follows:

  • An auto crash can cause a herniated disc.
  • The plaintiff had a crash.
  • The plaintiff had immediate low back pain.
  • The MRI showed a herniated disc in the lower back.
  • Are you aware of any other event that occurred right before her symptoms began that is the more likely cause of her symptoms?

When the defense expert claims that the condition should have healed within six (6) months, ask the doctor the exact day, hour and minute that the condition in fact healed.  Certainly the defense attorney will object that the doctor is being asked to speculate.  That of course is the point. Call, or contact us for a free consult.

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:

  • What does the term double standard mean
  • If you see a patient seeking treatment you take a history, examine, question about any apparent inconsistencies.
  • You did none of that here
  • 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?
  • You agree that seeing the plaintiff gives you more information than not seeing the plaintiff?
  • Applying the Daubert standard or that equivalent, record review constitutes a lack of scientific rigor.  Normally an expert would meet with the plaintiff, examine the plaintiff and form opinions based upon that.  That was not done here.

Getting Into the Negative Space

The negative space is that area that the defense doctor typically does not want to talk about.  It may be as broad as your imagination and include such things as:

  • Relationship not only with defense counsel but with the multiple other lawyers in the defense firm.
  • Documents received but ignored or given insufficient weight.
  • Variations between standard office policy and how the defense medical exam is conducted.
  • Huddling with defense counsel in the hallway outside the courtroom for hours but only spending 10 minutes examining the plaintiff.
  • Relevant questions that never were asked of the plaintiff.
  • Helpful statements made by the doctor to the plaintiff during the exam.

Patient Should have Recovered in 12 Weeks

Frequently the defense doctor will say that the patient should have recovered in 12 weeks.  That is based upon what patients normally do.  That should be followed up with the following

g:

  • What data do you have for what patients normally do?
  • In particular what data do you have from your own patient base as to what patients normally do?
  • Give the names of each such patient.
  • Have you presented the patient records of each such patient?
  • Do you have any compelling data as to what would constitute a normal patient for this type of injury?
  • What facts do you have to indicate that the plaintiff would be in that normal category?
  • Have you ever had a patient that took more than 12 weeks?
  • What is the longest period of time that a patient took to recover?
  • With those patients that took more than 12 weeks, what did you do?
  • Did you eventually refer those patients to pain management?

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

Not Independent, Not Objective, Actually Biased

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”
  • Meaning of the word “bias”
  • Review specialty guidelines from Pat Malone’s site that require doctors to be impartial and honest
  • Not hired by the court
  • Hired by defense counsel
  • 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: 95% paid by defendant
  • Percentage of income from forensic vs patients
  • Prior testimony for defense
  • Frequency, length of relationship, how long worked with defense counsel, socialize with defense counsel
  • Last time
  • This at least creates appearance that you are not independent
  • You realize the jury will be instructed that it may disregard expert testimony if not objective and if it is biased
  • You are not here as an advocate
  • You are not promoting one side
  • You simply call it as you see it
  • Your job is to be truthful

Money Cross-Examination

  • Money from defense work
  • 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
  • Fees in this case
  • You consistently testify for the defendant
  • This creates at least the appearance of you being allied with one side over the other
  • This creates the appearance of favoring one side over the other
  • If your reputation was one of being objective then probably both plaintiffs lawyers and defense lawyers would call you
  • It is predominately the defense lawyers that call you
  • Your litigation-related business is a well-oiled machine
  • It is a professional corporation
  • You have an elaborate fee agreement with the defense lawyers
  • Do you have any relatives on your payroll for that business?
  • How much do those relatives make?
  • The income that this professional corporation derives is essentially from a single source
  • The gross receipts of that business
  • You maintain that in spite of all that money that this professional corporation makes, that does not influence your judgment one bit
  • You are still objective
  • You are not biased
  • You are completely honest

No Duty to Diagnose or Treat

  • You owe no duty to properly diagnose the plaintiff’s condition.
  • You owe no duty to the plaintiff to properly treat the plaintiff’s condition.  The treating physician does owe a duty to diagnose properly.
  • The treating physician does owe a duty to treat the patient consistent with the diagnosis.

The Treating Doctor Got it Wrong and the Plaintiff is Lying

  • Your opinions are based upon one office visit with the plaintiff and record review
  • The treating doctor knows the plaintiff better than you do
  • Show me what facts in the record that the treating doctor was not aware of
  • Review the records of the treating doctor
  • Cover with the witness what is in his report that is not in the treatment records
  • Nothing in the treatment records that prescriptions were not justified based upon the complaints of pain
  • No one said that the plaintiff was not having real pain.
  • Force the witness to be honest to state expressly whether or not he thinks the plaintiff is faking or not
  • The treating doctor got it wrong
  • The numbers of times that testify that the treating doctor got it wrong
  • The plaintiff actually fooled the treating doctor
  • When the plaintiff said that his pain was 7 out of 10, was he lying?
  • The treating doctor committed malpractice when he wrote pain prescriptions for this plaintiff
  • The spouse was lying when he or she described the pain of the plaintiff
  • Who else is lying?
  • The lay witnesses lied

Facts Omitted from your Report

  • In a report you cited certain facts that you relied on
  • What are the facts in your report that support the need for the plaintiff’s treatment and that he is still disabled?  Cite those facts.  These are the only facts.
  • You omitted from your report a host of facts that support the disability of the plaintiff and the need for treatment.

Other Records

  • Was the opinion formed before the reviewing doctor had all the records?

Going Outside of Specialty

  • Your specialty is orthopaedics.  You have expressed opinions outside of that specialty.

No Medical Test is Perfect

  • No medical test known to man is 100% accurate
  • All have some false negatives
  • Explain what that means

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 sometimes 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.

There is no reliable scientific data to suggest that there is any correlation between the amount of property damage and the extent of personal injury.

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.
  • Where the defense doctor claims that the plaintiff should have healed within six weeks, inquire as to whether or not the stimulus is still present.  If the pain stimulus is still present, then one would expect the symptoms to still be present.
  • Get the doctor to acknowledge that everybody has a different pain threshold.  The doctor’s pain threshold may be very high. Another person’s pain threshold may be very low.  That governs their reaction to pain.

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.

Permanency

  • Regardless of where the symptoms came from, you agree that the symptoms now are permanent?

Herniations

In terms of cross-examining defense personal injury experts as to the cause of a herniated disc the questioning can go as follows:

  • An auto crash can cause a herniated disc.
  • The plaintiff had a crash.
  • The plaintiff had immediate low back pain.
  • The MRI showed a herniated disc in the lower back.
  • Are you aware of any other event that occurred right before her symptoms began that is the more likely cause of her symptoms?

When the defense expert claims that the condition should have healed within six (6) months, ask the doctor the exact day, hour and minute that the condition in fact healed.  Certainly the defense attorney will object that the doctor is being asked to speculate.  That of course is the point. Call, or contact us for a free consult.

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:

  • What does the term double standard mean
  • If you see a patient seeking treatment you take a history, examine, question about any apparent inconsistencies.
  • You did none of that here
  • 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?
  • You agree that seeing the plaintiff gives you more information than not seeing the plaintiff?
  • Applying the Daubert standard or that equivalent, record review constitutes a lack of scientific rigor.  Normally an expert would meet with the plaintiff, examine the plaintiff and form opinions based upon that.  That was not done here.

Getting Into the Negative Space

The negative space is that area that the defense doctor typically does not want to talk about.  It may be as broad as your imagination and include such things as:

  • Relationship not only with defense counsel but with the multiple other lawyers in the defense firm.
  • Documents received but ignored or given insufficient weight.
  • Variations between standard office policy and how the defense medical exam is conducted.
  • Huddling with defense counsel in the hallway outside the courtroom for hours but only spending 10 minutes examining the plaintiff.
  • Relevant questions that never were asked of the plaintiff.
  • Helpful statements made by the doctor to the plaintiff during the exam.

Patient Should have Recovered in 12 Weeks

Frequently the defense doctor will say that the patient should have recovered in 12 weeks.  That is based upon what patients normally do.  That should be followed up with the following

g:

  • What data do you have for what patients normally do?
  • In particular what data do you have from your own patient base as to what patients normally do?
  • Give the names of each such patient.
  • Have you presented the patient records of each such patient?
  • Do you have any compelling data as to what would constitute a normal patient for this type of injury?
  • What facts do you have to indicate that the plaintiff would be in that normal category?
  • Have you ever had a patient that took more than 12 weeks?
  • What is the longest period of time that a patient took to recover?
  • With those patients that took more than 12 weeks, what did you do?
  • Did you eventually refer those patients to pain management?

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

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