Advantages, preparation, outline, and pattern questions.

by Kim Patrick Hart

Deposing and Examining Doctors

Excerpted from Deposing and Examining Doctors


Chiropractic physicians are still an important part of personal injury practice. In your early years, when you are handling injuries of a less serious nature, you will be dealing with them constantly. So it is important to understand the advantages and disadvantages of using them as witnesses.

When I first started as a defense lawyer, I didn’t have a clue what chiropractors did. I knew that my grandmother went to one weekly, but I didn’t know why. I also knew that my father had less respect for them than doctors because he always referred to the chiropractor as “that quack.”

In my defense practice, I saw chiropractors as the main supporting characters in the classic soft tissue scenario. Next to the plaintiff, he was the most important person to testify. In my defense mindset, he was evil personified.

But now, having the advantage of many years of practice and having done both defense and plaintiff’s work, I have come to realize that there are lots of advantages of working with a chiropractor, both for my injured clients and myself as their attorney.

From the clients’ viewpoint, chiropractors in general spend more time with them and seem more caring. Chiropractors also are more likely to work with clients on financial matters than medical doctors, waiving co-pay and readily accepting letters of protection.

From a medical standpoint, recent studies have suggested that treatment by a chiropractor during the first eight to ten weeks after an auto crash might actually be more effective in treating muscle and ligamentous strains and sprains than seeing an orthopedic. If there are no broken bones and no need for surgical intervention, chiropractors can provide effective treatment.

From a trial lawyer’s standpoint, chiropractors are more accessible than medical doctors. They are more likely to return your telephone calls and they will happily spend more time with you preparing for their depositions and will eagerly go to trial. Most want to maintain a good relationship with you in hopes that you will recommend them to your clients.

§2:02        Disadvantages of Using Chiropractors as Experts

Testimony by a chiropractor also has some disadvantages. Many people on your jury will have fixed opinions as to whether or not the care chiropractors provide is beneficial. So it is important to determine prospective jurors’ life experiences with chiropractors when selecting a jury. Also, many chiropractors tend to recommend continuous treatment that never ends. It is often hard to convince a jury that a person who did not need surgery or was not hospitalized is going to need to see a doctor for treatment once or twice every week for the rest of his life. It goes against the jury’s common experience.

Finally, the two biggest obstacles in using chiropractors are you and the chiropractor. Many plaintiff’s lawyers learn their craft defending insurance companies. During this initial phase of their careers, they develop deep-seated prejudices against chiropractors. If you are going to be a successful plaintiff’s lawyer handling soft tissue cases, you have to let go of these feelings. First, like many pre-conceived notions, these prejudices are not supported by the facts, and second, they will inhibit your ability to be a successful advocate for your clients.

The other stumbling block is the chiropractor’s mindset. Over the years, I have noticed that many of them seem apologetic about being chiropractors. They constantly live in the shadow of medical doctors and many of them are self-conscious about it. This sometimes comes through in their testimony as defensiveness. This needs to be neutralized both at deposition and trial.

§2:10        Pre-Suit Affidavit

The treating chiropractor’s deposition is usually taken by the defense. Since most treating chiropractors will cooperate with you fully, there is no need for you to take their deposition. If you need to establish what the treating chiropractor’s testimony will be for negotiation purposes, it is better to use an affidavit to effectively communicate his or her opinions in a concise and controlled manner.

§2:11        Pre-Deposition Meeting

Since chiropractors tend to be quite generous with their time, I suggest you take advantage of this. Your pre-deposition meeting with a chiropractor should be at least a half-hour. During your conference, share with the chiropractor the facts you hope to develop through her testimony, review thoroughly the chiropractor’s medical records demonstrating how a defense lawyer will try to use them to weaken her testimony and warn the chiropractor about expected areas of cross-examination.

§2:12        Points to Establish

The main issues that need to be proven by a plaintiff in a personal injury lawsuit are fairly constant regardless of the specialty of the physician. Make sure your chiropractor is prepared to testify that:

  • The plaintiff has an injury.

  • The injury was caused as a result of the auto crash or fall.

  • The plaintiff has incurred medical expenses in the past related to this incident.

  • The medical treatment by the chiropractor was reasonably necessary for the patient to get better.

  • More likely than not, the plaintiff will incur medical expenses in the future, and what those expenses will be.

  • Plaintiff’s current problems and how they affect his life.

  • Plaintiff’s disability rating.

  • Future effects of the injury on the plaintiff’s life.

  • How the injury prevented the plaintiff from working in the past.

  • How the injury will affect the plaintiff’s ability to earn income in the future.

§2:13        Specificity Regarding Injury

In preparing the chiropractor to testify, it is essential to encourage her to be as specific as possible concerning the injury. The chiropractor should be able to identify which muscles, tendons, or vertebrae are causing the problem. She should be ready to explain in simple terms how the mechanics of the particular auto crash or fall caused this injury. Finally, the chiropractor must be able to explain how the treatment provided by a chiropractor helps a patient feel better and function more normally.

§2:14        Credibility and Future Treatment

It is often like pulling teeth to get an orthopedic surgeon to provide favorable testimony on the need for future medical care. The opposite is true with chiropractors. Here your job may be to tone the chiropractor down.

The credibility of your chiropractor will often depend on how long she has been treating your client since the incident and what she projects your client’s needs will be in the future. A chiropractor who has been providing care two or three times a week to a plaintiff for over a year and testifies that the plaintiff will need that the rest of his life has very little credibility with a jury. At this point, jurors begin to suspect that this is just a money-making scheme for the chiropractor.

However, when a chiropractor aggressively treats a patient in the first eight to ten weeks after an incident, and then gradually tapers off treatment to a point where the patient is told to come in on an as-needed basis, the chiropractor’s credibility increases. I much prefer a chiropractor who says that in the future she would anticipate my client only needing treatment for flare-ups. An estimate that a person needs only five to ten chiropractic adjustments a year is far more believable than putting up big future medical numbers based on two to three adjustments a week for life. A smaller number that a jury might actually award is preferable to a larger number that totally undermines the credibility of my doctor.

§2:20        Client’s Past Medical Records

Most auto crash cases tend to be clear liability situations, so the defense is left with trying to defend such cases by arguing that the injuries were not caused by the incident. Because of this, it is extremely important for you to get your client’s previous medical records. It is my practice to get all clients’ medical records from ten years before the auto crash. By reviewing and outlining these, you will know if there is any factual support to the defense’s obvious argument that the neck and back sprain being treated by your chiropractor was a pre-existing condition.

In preparing your chiropractor for deposition, be sure to give her copies of the records and your outlines. Even though outlines are discoverable, and the defense will cross-examine the chiropractor as to where she got the records and the outlines, I have never had them used successfully against me in cross-examination at trial. Providing the chiropractor with an outline gives her a quick way of reviewing the medical records immediately before the deposition. With a chiropractor, you run a good chance that she will not only review the outline but also the entire medical chart.

In your pre-deposition meeting, point out to the chiropractor specifically every previous medical visit that could in any way be argued to be a pre-existing condition. Take the chiropractor through a mock cross-examination on these entries so she feels comfortable in dealing with them.

§2:21        Chiropractor’s Own Records

In addition, go through the chiropractor’s own medical records carefully. Point out to her how the defense will use any positive statement in the medical records to suggest that the plaintiff is no longer suffering from the injury. Even a comment as simple as “he is feeling somewhat better today,” will be commented on by the defense.

Warn the chiropractor that all negative notes will also be used against her. If after six months of treatment, the records reflect, “His problems are the same as when the accident first occurred,” the defense will ask the question, “Well, doctor, it appears after six months of treatment and $10,000.00 worth of bills, the patient is no better than when you first saw him. How do you explain this?”

§2:22        Records of Compulsory Medical Exam

Finally, review with the chiropractor the compulsory medical examination. This will usually have been done by a neurologist. Prepare the chiropractor to be able to explain the difference between treating muscles, ligaments and bones as compared to treating nerves. Defense questions generated by the compulsory medical examination present an excellent opportunity to set up the argument at closing that these doctors are different medical specialists and as such are oriented to look for different things. Point out the positive aspects of the compulsory medical examination and encourage the chiropractor to comment on them when given an opportunity by the defense. If you can show that your treating chiropractor agrees on many of the medical points with the defense CME neurologist, you will strengthen the plaintiff’s argument that despite the fact that there are no broken bones or surgery, this is a real injury.

§2:30        Chiropractors Are Not Medical Doctors

The intellectual arrogance of defense lawyers compels them to overemphasize during the deposition of a chiropractor that she is not a medical doctor. Typical defense questions include:

  • Now doctor, you are not a medical physician, correct?

  • You can’t prescribe drugs, right?

  • You can’t perform surgery, isn’t that true?

  • How would you treat a broken leg?

  • How would you treat cancer?

The not-so-subliminal message here is, “Doctor, you weren’t smart enough to get into medical school and therefore a jury should not believe you over my exceedingly bright neurologist.” This is an area of cross-examination that ought to be simple for a chiropractor to handle. All she has to do is tell the truth. But because of chiropractors’ self-consciousness about not being medical doctors, sometimes they have a difficult time dealing with these questions without sounding defensive.

In your pre-deposition meeting, point out to the chiropractor that her particular specialty is one aspect of the healing arts. There are many different ways to make people feel better when they are injured. A chiropractor provides benefits to clients that are different from those provided by a medical doctor. The chiropractor should respond honestly and without apologies to cross-examination questions concerning whether or not a chiropractor is a medical doctor. She should simply answer the question that is asked and not try to be an advocate. Reassure the chiropractor that when you are at trial, you will give her an opportunity to discuss the benefits of chiropractic treatment on re-direct.

So in response to the standard defense questions the chiropractor should simply say:

  • No, I am not a medical doctor.

  • I would treat a broken bone or cancer by referring the patient to the appropriate medical doctor.

  • No, I do not prescribe drugs or do surgery.

§2:31        Relationship with Plaintiff’s Counsel

Let me begin this section with a disclaimer. My opinion on referring patients to a specific doctor is probably different than many plaintiff’s attorneys. I firmly believe that in most situations, especially immediately after an auto crash, lawyers should not manipulate the medical treatment. When someone who has recently been in a car crash calls my offices, I suggest that he see the physician of his choice and if that doctor believes the individual has a serious or permanent injury caused by the incident, the client should call me back. I rarely suggest a specific specialty, let alone a specific doctor.

The reason I take this approach is because I know eventually a defense lawyer will ask the client how he got to the doctor. I think it just looks “sleazy” to a jury if the answer is, “My lawyer sent me to her.”

Warn the chiropractor that she will be asked questions about her relationship with you and your law firm such as:

  • Have you or your law firm ever referred patients to the chiropractor?

  • If so, how many?

  • Was the plaintiff referred by you?

  • How many times has the chiropractor testified for clients that you represent?

  • And many more questions simply to show a relationship between the chiropractor and your law firm.

Remember to warn the chiropractor that this is going to be a two-way street. The defense lawyer will also question the chiropractor on whether the chiropractor has ever suggested to a patient that he should see an attorney, whether the chiropractor has ever specifically recommended you or your firm, and if so, on how many occasions.

The best way to deal with these questions is to answer them honestly with as much detail as possible. But to be able to do so, you may have to give up a sweetheart relationship where each of you is sending the other clients. It sounds a lot better during cross-examination when a chiropractor says, “I did recommend that he see a lawyer and I gave him a list of attorneys in town who I know do good work,” rather than, “Why yes, I did suggest he see his current attorney.”

§2:32        Objective vs. Subjective

From my vantage point this is the most ineffective defense cross-examination there is. I have never been in a case involving chiropractor testimony where there wasn’t a long series of questions trying to distinguish objective findings from subjective complaints. In the defense mind, an objective finding is something real that can not be debated. For instance, the X-rays showed a broken bone. Subjective complaints are things that cannot be tested by science but may simply reflect an opinion or feeling. The classic example is the patient has pain when bending over.

I don’t think the objective versus subjective dance is effective because it really is an issue of whether the jury believes the patient or not. If the jurors like and believe the plaintiff, they are going to go the plaintiff’s way even if there is not one objective sign that shows the plaintiff was injured in the car crash. Likewise, if they don’t like him, they are going to minimize damages even if the plaintiff is missing a leg.

Despite this, you can count on defense lawyers to continue this line of questioning and you should prepare your chiropractor for it. Before facing the defense lawyer at deposition, the chiropractor should be able to state clearly what objective signs of injury she saw. The chiropractor should also be able to explain how some things that may seem like subjective complaints can actually be objective signs when analyzed by a trained observer. For instance, “He said he was in pain when he turned his head to the right and I could feel spasms and tension in his trapezius muscle when he did.”

§2:33        Never Treated Plaintiff Before

One standard defense technique in soft tissue cases is to establish that a doctor had never seen your client before the auto crash occurred. Therefore, there were no pre-accident X-rays to compare. Defense attorneys love to point out that many people are walking around with bulging discs and they have no symptoms. If your client is over 40, defense attorneys will suggest that as much as 40% of the population in this age group would show a bulging disc if they had an MRI. Your chiropractor should know that these questions are coming and be prepared to handle them in a straightforward and consistent fashion.

One way of responding to these types of questions is to point out that people can have non-symptomatic conditions that are made symptomatic by trauma. This is often the basis for relating neck and back problems to an auto crash where a person had underlying pre-existing arthritic conditions. Obviously, if your client has had any previous neck or back X-rays, actual copies of these X-rays must be given to your chiropractor so she can review them and be able to distinguish post-incident changes.

§2:34        Treatment Is Palliative and Not Curative

I personally believe this is the jury’s biggest problem with testimony concerning chiropractic treatment. While it is not difficult to convince them that initially after an auto crash, chiropractic treatment can be helpful, the further you are away from the date of injury, the less likely they are to believe that chiropractic treatment is helpful in any way.

Defense lawyers love to take advantage of this. If your client has been treating with a chiropractor for six months or more, defense counsel will certainly point out in examining the doctor that despite thousands of dollars worth of treatment, the patient is still not better.  Normally chiropractors handle these questions by stating that their treatment allows a patient to stay at a certain plateau and not get worse. I’m not sure that is terribly convincing to a jury.

Perhaps a better approach is to simply bite the bullet and admit that at a certain point, chiropractic treatment is primarily designed to help alleviate pain. In taking this approach, a chiropractor can discuss how these treatments enable clients to continue work and try to function normally without becoming dependent on pain medication. The theme here is that a natural way of dealing with pain is preferable to masking it with chemicals. This is a theme a jury will accept.

§2:35        Positive Notes in the Chiropractor’s Records

A good defense lawyer reviews the chiropractor’s own records and does his best to accentuate the positive. Defense counsel will bring up every negative X-ray, every negative exam, and every point in the record where the client suggests that he has had some improvement or is feeling better.

The best way for a chiropractor to handle this questioning is to simply admit that all these things are true but then point out where she noted the problems the patient was still having.

§2:36        The Economic Aspects of Being a Chiropractor

Whether or not a defense lawyer has the guts to admit it, a defense theme in every soft tissue case involving chiropractic treatment is: “A chiropractor is a quack who continues to recommend chiropractic procedures that are not necessary and will not help the patient simply to line his own pockets with gold.” During this phase of cross-examination, defense counsel will emphasize how much each of the procedures cost, how many patients the doctor sees a day, and how much of the doctor’s work is related to injuries caused by auto crashes, falls, and on-the-job accidents.

If you and the chiropractor have a long-term relationship, the defense lawyer will again attempt to underline that sweetheart deal by getting estimates of how many of your clients the chiropractor has treated, and then multiplying that number by the average number of procedures each client receives to hopefully show that a large part of the chiropractor’s yearly income is being generated by you and your firm.

The best way of dealing with this area of cross-examination is to have your clients choose for themselves the chiropractors and doctors who will treat them. The next best defense is a chiropractor that terminates weekly adjustment at a reasonable time after the incident and then sees the patient only on an as-needed basis.

§2:37        Letter of Protection

It is common for plaintiff’s attorneys to provide certain physicians with letters of protection. Exhibit B gives you an example of one. In essence, with a letter of protection a lawyer is promising that before distributing any settlement funds or jury awards to the client, the attorney will contact the physician and make sure that the physician’s bill has been taken care of.

Since chiropractors are usually quite good at working with patients on the financial aspects of their treatment, there will be a letter of protection in almost every chiropractor file. Defense lawyers often seize on this to try to create the impression that the doctor has a financial interest in the case.

Typical defense questions are:

  • Doctor, can you identify this letter for me?

  • Isn’t this what is commonly known as a letter of protection?

  • This was sent to you by the plaintiff’s attorney, wasn’t it?

  • In this letter the attorney is promising that you will get paid when this case is resolved, isn’t he?

  • The truth of the matter is, Doctor, that you have a financial interest in this action, don’t you?

This line of questioning is easy to deal with as long as the chiropractor knows it is coming and isn’t self-consciousness about having received a letter of protection. In responding to these questions, all a chiropractor needs to say is that it is standard practice to obtain a letter of protection, it does not create a financial interest in the case, and she will be paid regardless of what happens in the lawsuit. All the chiropractor has done as a treating physician by accepting the letter of protection is to agree that she will wait to be paid until the legal matters are concluded.

By dealing with these defense questions this way, the chiropractor not only gives a potential jury the truth about letters of protection but also suggests to them that she is a nice person treating the injured client without demanding immediate payment.

§2:38        Pre-Deposition Meetings

One of the clearest signs that you are dealing with a defense attorney with only a few year’s experience is if he cross-examines the treating chiropractor about your pre-deposition meeting. Most experienced defense lawyers drop this line of questioning later in their careers since it really never goes anywhere. But in soft tissue cases, defense attorneys are usually young and inexperienced since these are the entry level types of injuries. So you need to be prepared for this line of questioning.

The typical examination related to pre-deposition meetings looks like this:

  • Doctor, did you meet with the plaintiff’s counsel immediately before this deposition?

  • How much time did you spend with him?

  • This wasn’t your first meeting with him, was it?

  • You actually met with him many months ago when he prepared an affidavit for you to sign to help him with his case, didn’t you?

  • Today’s meeting was to prepare you for this deposition, wasn’t it, Doctor?

  • In fact, he probably warned you about what kind of questions I would be asking and gave you suggestions on how to handle those questions, didn’t he?

  • Doctor, I have never talked to you on the phone about your patient, have I?

  • I have never met you in person concerning this case, have I?

  • In fact, if I had asked to meet privately with you to discuss this patient, you wouldn’t have done so, would you?

The best way for a chiropractor to handle this line of questioning is to be truthful, but to keep the answers vague. Typical responses might be:

  • Yes, I did meet with the plaintiff’s counsel immediately before the deposition.

  • During this meeting we simply discussed my treatment of the patient.

  • No, he did not suggest any answers to me; all he told me was to tell the truth, which I have done.

When I prepare a chiropractor for her deposition, I always end by telling the chiropractor to tell the truth. This gives the chiropractor a perfect response when an aggressive defense lawyer tries to suggest that you are putting words in the chiropractor’s mouth. My favorite witness response to this line of questioning actually came from a little old lady who was a fact witness in a fall down case. At trial the testimony went like this:

Q.   “Mrs. Smith, you met with Attorney Hart before taking the stand today?”

A.  “Yes, sir, I did.”

Q.   “And he told you what questions he was going to ask you?”

A.  “Yes, sir.”

Q.   “In fact, he also suggested to you what your answers should be, didn’t he?”

A. “No, sir, all Mr. Hart told me to do was to tell the truth. But he didn’t need to do that because I always tell the truth.”

At that point, the defense lawyer slinked back to his defense table kicking himself for asking “the one question too many.” Telling the truth is the perfect comeback to the suggestion that there is something improper about a lawyer preparing a witness for trial.

§2:50        Compulsory Medical Examination by Chiropractor Is Rare

You will rarely have the opportunity to take the deposition of a chiropractor who has done a compulsory medical examination. Insurance companies do not hire chiropractors to do these. The reason is that all chiropractors are playing on the same field as the plaintiff’s treating chiropractor. They were trained the same way and hold the same beliefs in the power of chiropractic to help people.

By hiring a chiropractor to do a compulsory medical examination, the insurance company immediately gives up its favorite argument that a chiropractor is not a medical doctor. By relying on a chiropractor to do a CME, the insurance company gives instant credibility to the whole profession. Chiropractic must be worthwhile if the insurance company believes in it enough to use a chiropractor to do its compulsory medical examination.

Plus, using a chiropractor exposes their CME doctor to questioning from the plaintiff that won’t occur with a neurologist or an orthopedic surgeon. Every chiropractor is going to have to admit that she has had patients that required extended long-term chiropractic treatment. Every chiropractor has at least a few patients that have been seeing her one or two times a week for many years. This, of course, bolsters the plaintiff’s future medical needs argument.

Finally, chiropractors, when doing compulsory medical examinations, tend to be a lot less likely to totally “deep-six” a plaintiff. What they will usually do is state that chiropractic treatment initially was necessary but that the patient is now better and does not require any future care. They will rarely throw out the “plaintiff is a malingerer” card. But insurance companies can usually find at least one orthopedic surgeon and neurosurgeon in every community who is happy to quickly jump to the conclusion that all plaintiffs are lying about their injuries.

§2:51        Preparation Checklist

Preparation for a deposition of a chiropractor who has done a compulsory medical examination is the same as with any other medical specialty. Your checklist should include:

  • Arranging for the CME to be videotaped.

  • Arranging for a court reporter to be present at the compulsory medical examination.

  • Reviewing the CME report thoroughly.

  • Reviewing the transcript and videotapes of the CME and comparing them to the report.

§2:52        Documents to Request with Subpoena Duces Tecum

Serve the chiropractor with a subpoena duces tecum requesting the following items:

  • The chiropractor’s curriculum vitae.

  • Copies of all records received from the defense.

  • Copies of all films received from the defense.

  • Copies of all medical articles, computer research, and medical research that the chiropractor has reviewed in preparation for the examination of the patient or before preparing her report.

  • A list of all cases in which the chiropractor has done a CME for the defense law firm or the insurance company for the last three years.

  • A list of all cases where the chiropractor has testified as a treating physician on behalf of a defense law firm or insurance company for the last three years.

  • The amount of money the chiropractor has received from either the defense law firm or the insurance company for doing compulsory medical examinations, depositions, trial testimony and any other medical work in the past three years.

  • What the chiropractor has received for performing the CME on your client.

§2:53        Points to Cover

 

If the insurance company uses a chiropractor to do the CME, take advantage of it. As we’ve discussed, an insurance company will rarely hire a chiropractor to do a CME. But if it does, use the insurer’s choice to your client’s benefit. Go through the chiropractor’s training and credentials extensively. Get her to explain that chiropractors have the same training as doctors for the first two years. Have her explain thoroughly the theory of chiropractic in layman’s terms and why manipulation can be so beneficial. Don’t forget to have the chiropractor discuss the advantages of natural treatment versus surgery or drug therapy. Coming from the mouth of the insurance company’s own physician, this is gold.

Talk to the chiropractor about her own practice. Be sure to point out that the chiropractor has many clients whom she has treated for years. Some see the chiropractor as often as two or three times a week. These are clients who weren’t injured as a result of the carelessness of others, but have found long-term benefits and relief from continuing care. Get the chiropractor to admit that sometimes long-term chiropractic care is needed and helpful.

Have the chiropractor discuss studies that have shown chiropractic treatment to be more effective in treating soft tissue neck and back problems immediately after an incident than either orthopedic surgery or neurology. Have the chiropractor explain why. Have her admit that in this particular case, the treatment received the first two to three months was appropriate, necessary and helpful.

By focusing on these matters, you will effectively leave the defense with only one argument about whether your client needs chiropractic care in the future. Everything else will be a given.

§2:60        Training and Qualifications Are Similar to Those of Medical Doctors

Q.   State your name, please.

Q.   What is your occupation?

Q.   To become a chiropractic physician, did you first have to graduate from college?

Q.   Where did you go to college?

Q.   What did you receive your degree in?

Q.   How many years did it take you to get your undergraduate degree?

Q.   After obtaining your degree, what did you have to do to be accepted into a chiropractic college?

Q.   Is admission to these colleges competitive?

Q.   What is the percentage of students who apply that are accepted at these colleges?

Q.   Which chiropractic university did you attend?

Q.   How many years of training after your undergraduate degree did it take to become a chiropractor?

Q.   Describe your first two years of schooling in chiropractic college?

Q.   How does that compare to how medical physicians are trained?

Q.   So for the first two years, chiropractors and medical doctors receive exactly the same training?

Q.   How does their training differ after the first two years?

Q.   As a chiropractic physician, did you spend time as an intern and a resident?

Q.   Is board certification available in your specialty?

Q.   Are you board certified?

Q.   What does that mean?

Q.   What did you have to do before you could be board certified?

Q.   How does this compare to certification in the medical specialties?

Q.   Doctor, did you bring a copy of your curriculum vitae today?

Q.   May I have it, please?

(Attach his Curriculum Vitae as Plaintiff Exhibit #1.)

Note: Don’t be afraid to spend time on fully developing the CME chiropractor’s training and experience. Your goal here is to show a jury that chiropractic is a legitimate healing specialty. By building up the CME chiropractor, you build up the entire profession, including the credibility of your own treating chiropractor.

§2:61        Chiropractic—A Valid Healing Approach

Q.   What is a chiropractor?

Q.   What does she do?

Q.   How does she heal a person who has an injured back?

Q.   How does this approach differ from that of an orthopedic surgeon?

Q.   How does it differ from the approach of a neurologist?

Q.   So these different specialties approach the same problem from a different viewpoint with a hope of resolving a patient’s pain?

Q.   Have there been studies done which show chiropractic treatment is as effective as or even more effective in treating back problems than orthopedics or neurology?

Q.   Who did these studies and what did they show?

Q.   Can you explain to us how chiropractic treatment works?

Q.   As a chiropractor do you prescribe drugs?

Q.   Are there advantages in not using pain medication, muscle relaxants, and other drugs when treating back injuries?

Q.   What are the advantages?

Q.   As a chiropractor do you ever perform surgery?

Q.   Does chiropractic treatment help patients with back pain avoid surgery?

Q.   Is this a good thing?

Q.   Would it be fair to characterize chiropractic as a more natural healing approach to neck and back pain as compared to the medical specialties of orthopedics and neurology?

Q.   Do you ever refer patients to orthopedic surgeons or neurologists?

Q.   Under what circumstances?

Note: Notice that during this line of questioning I ask very few leading questions. The reason is because I want the chiropractor to use his or her own words to describe just how wonderful the profession is. At trial I will use the chiropractor’s own glowing description of the benefits of chiropractic treatment to establish my point that chiropractors are real doctors.

§2:62        Compulsory Medical Exam: Basic Information

Q.   Now, Doctor, you were asked by the defense attorney in this case to do a compulsory medical examination on my client, George Gates, correct?

Q.   When and where did this take place?

Q.   Before the examination, were you sent anything to review?

Q.   Doctor, I sent you a subpoena asking you to bring certain things to this deposition, including all the materials you had received from the defendant. Have you brought them?

Q.   May I see them, please? (Attach as Plaintiff’s Exhibit #2 copies of all materials given to the CME physician.)

Q.   Was there any correspondence between you and the defense lawyer before or after the medical examination?

Q.   Did you bring these pursuant to my subpoena?

Q.   Can I see those now? (Attach as Plaintiff’s Exhibit #3 copies of all correspondence to and from the CME chiropractor.)

Q.   Who was present during your examination?

Q.   Was your examination videotaped?

Q.   Was any part of your examination conducted either before the camera was turned on or after the camera was turned off?

Q.   So if we reviewed the videotape of the CME, we should be able to see it in its entirety?

Note: It is important to have a court reporter and videographer at the compulsory medical examination. This will keep the chiropractor honest. But to lock her in, you need to get the chiropractor to admit that the entire examination was videotaped. This will prevent the chiropractor at trial from testifying as to observations that occurred either before or after the camera was turned on.

§2:63        Points of Agreement

Q.   Doctor, you began your compulsory medical examination by taking a history from George, isn’t that correct?

Q.   He told you he was hit by an automobile while riding his motorcycle on May 29, 2003, didn’t he?

Q.   That car had turned in front of his motorcycle and violated his right of way, correct?

Q.   He was thrown almost 50 feet landing on the roadway on his back. True?

Q.   He also told you that he had immediate pain in his low back area as a result of this?

Q.   Doctor, you agree that an ambulance was called to the scene and George was taken to the emergency room of CommunityHospital?

Q.   At the hospital they examined him and told George to follow-up with his general physician if he continued to have problems?

Q.   George did that two days after the auto crash, didn’t he?

Q.   You would also agree that George’s family doctor treated him with medication, physical therapy, and bed rest for a period of four to six weeks?

Q.   But despite this, George did not get any better and his doctor referred him to Raymond Brown, a board certified chiropractor in Ft. Myers, Florida?

§2:64        Appropriateness of Initial Treatment

Q.   Now, Doctor, we can agree that Dr. Brown started treating George with chiropractic treatment beginning January 26, 2003, can’t we?

Q.   You have had a chance to review his records, correct?

Q.   Those records indicate that he saw George three times a week for the first six weeks and on each occasion provided physical therapy and chiropractic adjustment?

Q.   Now, Doctor, you agree that the treatment provided to George by Dr. Brown during this six-week period was appropriate and reasonably necessary to help him recover from the injuries he received in the auto crash?

Q.   Doctor, you yourself would have done the same type of adjustments and seen the patient at the same frequency during these first six weeks, wouldn’t you?

§2:65        Compulsory Medical Exam: Positive Findings

Q.   Doctor, you conducted your own examination of George on December 1, 2003. Is that correct?

Q.   During your examination you tested the range of motion of his back, didn’t you?

Q.   Based on your examination, you determined he did not have a full range of motion, correct?

Q.   In fact, when it came to bending forward, you noted that he had only 60% of the normal range of motion for a man his age, isn’t that true?

Q.   Doctor, you also noted in your report that when asked to bend forward he had complaints of pain in the low back area?

Q.   You also found this to be true when he was asked to turn his torso to the left and the right, correct?

§2:66        Points of Disagreement

Q.   Now, Doctor, you have had the opportunity to review all of Dr. Brown’s chiropractic records on George, haven’t you?

Q.   From that review, you know that Dr. Brown and you disagree on several aspects of this case, isn’t that true?

Q.   Dr. Brown believes that George has a permanent injury resulting in a 6% whole person impairment, doesn’t he?

Q.   Dr. Brown also believes that George will periodically need chiropractic treatment in the future when his symptoms get extremely bad, right?

Q.   In fact, Dr. Brown has predicted that George will need probably about ten manipulations a year for the rest of his life?

Q.   Now, Doctor, the fact that you and Dr. Brown don’t agree doesn’t mean that one of you is lying, does it?

Q.   You are both professionals trained as chiropractors, correct?

Q.   And it is not unusual for professionals to have differing opinions?

§2:67        Limitations of Exam

Q.   Now, Dr. Brown has treated George more than 40 times over a period of nine months, correct?

Q.   Would you agree with me that he has probably spent more than 25 hours dealing with George’s problem?

Q.   You have only spent 20 minutes with George during your compulsory medical examination, is that correct?

Q.   You had never met him before?

Q.   You do not anticipate ever seeing him again?

Q.   You were hired by the defense lawyer to do one specific task, the compulsory medical examination?

Q.   You were not hired to treat George, correct?

Q.   You knew at the time of the compulsory medical examination that if you felt George needed future treatment, it would not be provided by you, correct?

§2:68        Defense Chiropractor’s Own Practice

Q.   Doctor, as a chiropractor you see patients on a daily basis, correct?

Q.   Many of those patients have back problems just like George, don’t they?

Q.   And Doctor, I would assume that you have had some patients with problems similar to George’s that you have been treating for years and years, isn’t that so?

Q.   So you know, Doctor, that sometimes these low back problems never resolve themselves?

Q.   What is the longest that you have ever treated a patient for low back problems?

Q.   And over those five years, on average how often did you see this patient?

Q.   Are you still treating this patient?

Q.   How many times a week?

Q.   Now, Doctor, what do you charge for each of these visits?

Q.   So on a yearly basis, that patient has been paying approximately $1200.00 for your treatment. Would you agree with me, Doctor, that that treatment was needed by your patient?

Q.   And would you further agree with me that what you charge is reasonable and customary for the kind of treatment you have provided him in this community?

§2:69        Defense Chiropractor’s Relationship with Defense Attorney

Q.   Now, Doctor, you were asked by Attorney Bill Blue to conduct this compulsory medical examination of my client, weren’t you?

Q.   This isn’t the first time that you have done an exam for Mr. Blue, is it?

Q.   When did you first agree to do a compulsory medical examination for either Mr. Blue or a member of his firm?

Q.   So you have been doing these for over ten years for him or his colleagues?

Q.   Approximately how many do you do a year?

Q.   How many did you do this year?

Q.   What do you charge to do this?

Q.   So the exam itself costs $300.00?

Q.   How much are you charging for your deposition?

Q.   And if you testify at trial, how much will it cost Mr. Blue or his client for that testimony?

§2:70        The Economic Aspects of Compulsory Medical Examinations

Q.   Doctor, in my subpoena duces tecum I asked you to bring a list of all cases where you have done a compulsory medical examination in the last three years. Do you have that list? (Attach as Plaintiff’s Exhibit #4.)

Q.   Would you agree with me, Doctor, that in the last three years you have done 150 examinations like this?

Q.   Doctor, were these all for lawyers representing the defendants?

Q.   Have you ever done such an examination at the request of a plaintiff’s attorney?

Q.   Doctor, I also asked you to bring a list of all cases where you have given sworn testimony in the last three years. Do you have that list? (Attach as Plaintiff’s Exhibit #5.)

Q.   Would you agree that you have given your deposition or trial testimony in 50 cases in the last three years?

Q.   Reviewing the list of cases in which you have done compulsory medical examinations, did you charge your normal fee for each?

Q.   Reviewing your list of cases where you have given sworn testimony, did you charge your usual fee for depositions and trial appearances in each of those cases?

Q.   What percentage of your annual income would you estimate is attributable to litigation support for defense attorneys?

I have no more questions.

Form 2:10 Chiropractor’s Pre-Suit Affidavit

Download theChiropractor’s Pre-Suit Affidavit in Microsoft Word.

Form 2:20 Letter of Protection

Download theLetter of Protection in Microsoft Word.


Kim Patrick Hart has extensive jury trial experience and was a member of the first group to complete the requirements of The Florida Bar to become a Certified Civil Trial Lawyer. He was chairman of The Florida Bar, Civil Trial Lawyers Certification Committee, 1990-1991; and a member of the Board of Governors, Young Lawyers Section, 1980-1982. He is Board Certified as a Civil Trial Lawyer, both by the Florida Bar and the National Board of Trial Advocacy. He is an advocate of the American Board of Trial Advocates (ABOTA), serving on their National Board from 1998 to 2000 and from 2004 to 2006.  Mr. Hart is the author of Deposing and Examining Doctors, from which this article is excerpted.

   Updated 06/03/13