Strategies, outline, and pattern examinations.

Deposing and Examining Doctors

By Kim Patrick Hart

Excerpted from Deposing and Examining Doctors

Never forget that the orthopedic surgeon who has been hired to do a compulsory medical examination of your client is not your friend. He is hired to do a specific job and that is to minimize the damage aspects of your case. Some orthopedic surgeons are intellectually honest. They may be conservative in nature but they are consistent in their approach to injuries and their testimony is straightforward. Others have no moral center. They will say whatever they need to in order to advance their client’s cause. But no matter which type you are dealing with, their goal is still the same. So control the cross-examination as much as possible by asking leading questions. Structure your questions in a way that leaves the doctor little opportunity for editorializing.

Tips and Techniques

§9:71        You Are Not Smarter Than the Doctor

This is by far the hardest thing for lawyers to accept. No matter how brilliant you are, you are not smarter than the doctor in his field. Although the Internet has given us all access to medical information, we can never know a subject as well as a doctor who has dedicated his whole life to it. So do not try to out-doctor the physician. Instead, change the playing field to an area where you are the expert. Look for inconsistencies in the doctor’s testimony and bring them out in cross-examination. Emphasize the positive and create bits of evidence that can be woven into your final summation.

§9:72        The Compulsory Medical Examiner Is an Advocate

Most doctors are smart enough to know that they were hired by the defendant to minimize damages. They will answer every open-ended question in a way that helps their client’s cause. Do not expect them to give a fair answer. Do not expect them even to give an honest answer. Control them by asking leading questions and using their written CME report and deposition to hold their feet to the fire.

§9:73        Cross-Examination Is a Guerilla Attack, Not an Extended Battle

The shorter cross-examination is, the better the cross-examination. The longer you keep the defense doctor on the stand, the greater his opportunity to advocate the defense position. Cross-examination should be an ambush. Get in quickly, get out quickly, sit down and shut up. There is almost an uncontrollable temptation if things are going well to keep talking so that the jury can know just how brilliant you are. Resist that temptation.

§9:74        Cross-Examination Outline

In preparing for cross-examinations, I do not write out all my questions. This is because cross-examinations tend to be shorter and need to be more fluid. I do, however, prepare a one-page outline that can be scanned quickly to determine if all the major points have been covered before I announce to the court “no further questions.” A typical outline looks like this:

  1. Points of agreement

  2. Positive aspects of written CME report

  3. Inconsistencies between physician’s testimony and transcript of the CME or videotape of the CME

  4. The limited nature of the CME exam

  5. Records that were not reviewed or examined by CME doctor

  6. Doctor’s ongoing relationship with defense counsel

  7. The economics of doing compulsory medical examinations

  8. Inconsistencies with prior testimony

Let’s discuss each of these one at a time.

§9:75        Points of Agreement

No matter how much of an advocate the defense physician is, you will find things in his report that you can agree on. For instance, this is a perfect time to re-emphasize the points in your client’s history that bear underlining, such as cause of the crash, the severity of the impact, and the fact that your client was wearing a seatbelt. Beginning the cross-examination with five to ten leading questions with which the compulsory medical examiner admits he agrees is a great way to give the impression that there really is not much of a debate about the injury. It also sets up a great closing argument technique.

When I first became a trial attorney, I had the opportunity to train with one of the best trial lawyers in our area, Jim Franklin. In closing, he would always turn the opponent’s medical examiner into his witness. Often he would not even talk about the physicians he called as witnesses. He would instead concentrate on all the positive things he was able to get the adverse doctor to admit to. By doing this, he eliminated any credibility issue since he actually used the testimony of his opponent’s witness. It is a good technique.

§9:76        Positive Aspects of CME Report

Before attempting to cross-examine the defense orthopedic surgeon, dissect his written report. Most jurisdictions require the defense to supply you with a written report from their doctor. No matter how conservative it is, you will find things in the report to help you. Focus on the physical examination. Buried in there will be some positive findings. Emphasize them. If the expert is intellectually honest, he might admit to some permanent aspects of the injury. Again, highlight those in your cross-examination. In almost every report, a doctor limits his testimony to his own expertise. That sets up a perfect opportunity, if the CME is an orthopedic surgeon, to emphasize that he has no opinion concerning any permanent neurological damage, psychological damage or other types of medical injuries.

§9:77        Inconsistencies Between Physician’s Testimony and CME Transcript or Videotape

In Florida and many jurisdictions, the courts have ruled that a plaintiff is allowed to have a court reporter and a videographer at the compulsory medical examination. Always take advantage of this. The advantages you gain far exceed the costs involved. For example, sometimes a physician will try to play Mr. Nice Guy at the CME exam to put your client at ease and try to elicit information that might be helpful to the defense. In doing so, he may say things like, “Oh, I can see that could be very painful,” or, “That must be very frustrating for you.” If a physician is two-faced and projects Mr. Nice Guy at the compulsory medical examination but Attila the Hun at trial, showing the jury a tape of the examination can communicate to them instantly what a schemer he is.

Another advantage of videotape is that doctors will always base their opinions of no injury on their physical examination. For instance, a doctor might say in his report, “The patient had no problem in bending forward.” But by reviewing the videotape, a jury will be able to see why the patient was having no problem bending forward: the doctor was doing all the bending for him. The doctor had a hand on the patient’s back, a hand on the patient’s front, and was actually moving the patient very little. When the doctor asked the patient if that hurt, of course the patient said no.

Finally, even if all you are allowed to have at the examination is a court reporter, do it. One especially nice thing about having a court reporter there is that the reporter always records the time when the examination starts and finishes. Often a doctor will claim that he examined your patient for 30 minutes to an hour. At that point you read the court reporter’s transcript which says the exam started at 4:00 p.m. and ended at 4:10 p.m. This has devastating effects on the doctor’s credibility.

§9:78        Limited Nature of CME Exam

This is the part of the cross-examination when you emphasize that this doctor has only seen your client once. The examination took only ten minutes. The examiner had never seen your client before nor does the examiner ever anticipate seeing your client again. This is a good time to get an admission from the doctor that he was not hired actually to give any advice that would help your client. The examiner was hired by the defendant simply to examine your client. A technique I like to use at the defense doctor’s deposition is to ask him if he has any advice that will help my client feel better. 70% of the time the doctor says no. This allows me to make an argument in closing that the doctor was not hired to help my client. He was hired solely to be a mouthpiece for the defense. If however, the doctor has some advice on either treatment or pain medication that might help, that gets plugged into my future damage argument. “Even the defense’s own doctor told you that he feels that my client would benefit from taking pain medication for the rest of his life.”

§9:79        Records That Are Not Reviewed or Examined by Defense Surgeon

I was a defense lawyer for ten years. Because their livelihood is based on hourly billing, defense lawyers are kept exceedingly busy. That means they can often forget to do the little things, like sending the compulsory medical examiner all the X-rays and records. When you depose a defense doctor, identify all the items he was sent. Invariably, there will be something your treating doctor has that the defense doctor does not have. During cross-examination, highlight the records the defense doctor did not have to review and use them as another reason why your treating physician has a clearer picture of what is really going on with your client.

§9:80        Doctor’s Ongoing Relationship With Defense Counsel

This is a technique of cross-examining a compulsory medical examiner that we all use and often spend a lot of time developing, but to be truthful, I’m not really sure how effective it is. There is no doubt, that defense lawyers have favorite doctors. Insurance companies are especially guilty of this. If you live in a community of 500,000 people or fewer, you are going to know, inside of a year, who the most conservative orthopedic surgeons are and almost verbatim what they will say about any specific injury. It is not difficult to show that the doctor has done 20, 30, or more CMEs for any particular defense counsel. But I have never been convinced that this really moves a jury. What is probably more important to them is what their family or friends have said about this particular doctor. If they know nothing about him, they usually will give the doctor the benefit of the doubt because “he is a doctor.” Still, if a defense lawyer or the lawyer’s client has used the defense doctor more than two or three times, I always cross-examine the doctor on this issue.

§9:81        The Economics of Compulsory Medical Exams

This is the part of cross-examination I like to call “fun with numbers.” I live in a resort community in Florida. Six months out of the year physicians do not have time to eat or sleep, let alone do compulsory medical examinations. The other six months of the year, no one is here and they use this type of work to supplement their income. It seems that as reimbursement for medical procedures from insurance companies have gone down, costs of doing compulsory exams have gone up. By establishing the number of CMEs the doctor does in a year, the average cost, the average cost of a deposition, and the average cost of appearance at trial, you can come up with a very big number. My favorite technique is to use a blank sheet of poster paper at trial, plug in the figures and multiply them out. It is fairly dramatic, and I think it does communicate effectively that the doctor has an interest in giving the defense what they want to avoid jeopardizing his income stream.

§9:82        Inconsistencies of Prior Testimony

It is a reality that as plaintiff’s attorneys, we are constantly competing with others for business. But despite that fact, in our community all the plaintiff’s attorneys try to cooperate and help each other in our cases. For instance, we hold monthly meetings to compare notes, talk about common problems, and try to work out the solutions. Within the organization, we have tried to set up repositories for depositions of compulsory medical examiners who testify often. By setting up a central location for these, we can wade through prior testimony and, once in a while, find a gem that helps us in our case. Nothing is as devastating to a doctor on the stand as being cross-examined with a sworn statement the doctor has made in another case that appears to say the exact opposite of what the doctor has just testified to in your case. It is very time-consuming to go through these depositions to look for that gem. But when you find it, it is gold.

Sample Cross-Examination of Defense Orthopedic Surgeon (Lateral Tibial Plateau Fracture of Left Knee)

§9:90        Points of Agreement

Q.   Doctor, my name is Kim Hart, and I represent Al. I always like to start on a positive note, so let’s see if we can help the jury understand the things that we agree on first, okay? We agree that Al was in an auto crash on May 1, 2001, don’t we?

Q.   We agree that this was a head-on collision where a car crossed the center line and hit him on his driver’s side?

Q.   We agree his car was totaled?

Q.   We agree that he lost consciousness as a result of this auto crash?

Q.   We agree that he had a scalp laceration that required suturing in the hospital?

Q.   We agree he suffered a lateral tibial plateau fracture of the left knee as a result of the auto crash?

Q.   We agree that Dr. Raymond did surgery repairing the fracture by inserting two screws?

Q.   We agree that Dr. Raymond also did a partial lateral meniscectomy?

Q.   We agree that Dr. Raymond in his surgery found that the lateral meniscus was torn and removed part of it?

Q.   We also agree that this torn portion of the lateral meniscus was in the same area and the same side of the knee as the fracture?

Q.   We agree that this fracture involves the knee joint, don’t we?

Q.   And it’s fair to say that fractures that involve the knee joint are worse than those where the knee cap alone is broken?

Q.   This is because when you have the knee joint involved, it can create an uneven surface that can cause irritation every time the knee joint is moved. Correct?

Q.   Now, when you have the articulating surface of the knee joint involved in a fracture like this, it can lead to traumatic arthritis, can’t it?

Q.   Doctor, you certainly don’t disagree that it’s possible that Al’s knee fracture will lead to traumatic arthritis?

Q.   In fact, you actually expect Al to experience some traumatic arthritis as he gets older, don’t you?

Q.   And you don’t dispute that this could possibly destroy his knee joint, eventually requiring him to have a total knee replacement operation?

Q.   You agree with me that Al never had any problems with his left knee before the auto crash?

Q.   And that Al now has pain in his left knee every day?

Q.   Do you agree that Al is experiencing clicking in the left knee?

Q.   Do you agree that clicking often means that a tendon is popping over a bone spur or a screw?

Q.   Al also told you he was having problems with his knee locking?

Q.   And, you would agree that locking, catching, or clicking are all symptoms that suggest a problem in the knee joint?

§9:91        Positive Aspects of Written CME Report

Q.   Doctor, during your examination you observed that Al was limping. In fact, he was limping even when his attention was directed to other things?

Q.   Is this one of the things you do during a compulsory medical examination to try to determine if a limp is real?

Q.   And in his case, it was real?

Q.   You also found in your examination that he had significant swelling of the lower leg?

Q.   You determined this by comparing his injured leg with the one that hadn’t been fractured, correct?

Q.   You also determined in your examination that he had a bad case of varicose veins that was contributing to this swelling?

Q.   You would agree with me that his fracture and his torn meniscus could have contributed to the blood flow problems that you noted in his leg?

Q.   Doctor, you found tenderness on the side of his knee joint?

Q.   You found this tenderness on the side of the knee joint where the fracture had occurred?

Q.   You also found synovitis and that this is consistent with his injury?

Q.   Doctor, what is synovitis?

Q.   Is it a good thing?

Q.   Why not?

Q.   Doctor, you agree with me that the auto crash certainly caused the tibial plateau fracture?

Q.   You agree that Al has continued to have problems related to that fracture and his torn meniscus?

Q.   You would also agree with me that this type of injury will inhibit his ability to walk long distances?

Q.   You agree that the way he is today is the way you expect him to remain? And by that, I mean, that you do not expect his condition to improve from this point?

Q.   In fact, you believe there is a chance that he may actually get worse?

Q.   You would agree with me that the limping that you saw during your exam is consistent with his injuries?

Q.   Doctor, you also agree that the swelling that you found in his knee is also consistent with these injuries?

§9:92        Positive Aspects of Doctor’s Deposition

Q.   Doctor, I want to show you a list of medical bills that Al has incurred since this auto crash. Would you agree with me that all these medical bills are causally related to the auto crash that Al was in?

Q.   So it’s fair to say, within reasonable medical probability, that Al would not have incurred $42,567.10 in medical bills but for the crash?

Q.   As a person who is familiar with our medical community, Doctor, is it fair to say that these medical bills fall within the reasonable and customary charges you would expect for these kinds of services in our area?

Q.   We have talked about the possibility of a knee replacement. What do you charge for a total knee replacement?

Q.   What is involved with a total knee operation?

Q.   Is the patient hospitalized?

Q.   For how long?

Q.   Are there office visits afterwards?

Q.   Are there X-rays?

Q.   Is anesthesia involved?

Q.   Are blood, urine and other tests taken?

Q.   Is there physical therapy afterwards?

Q.   What type of physical therapy?

Q.   Doctor, do you have an estimate of what the entire procedure costs?

Q.   You would agree with me, Doctor, that the use of an anti-inflammatory medication is appropriate for Al’s current problems?

Q.   One of the more popular anti-inflammatories right now, in fact, the one that you, yourself, prescribe on occasion is Celebrex, correct?

Q.   And Celebrex costs about $100.00 a month, doesn’t it?

§9:93        Limited Nature of the CME Exam

Q.   Doctor, at the time you examined my client, there was a court reporter present, wasn’t there?

Q.   Have you had an opportunity to see the transcript of your examination?

Q.   Doctor, I am handing you a copy of the court reporter’s transcription now. Would you look at the front page for me, please?

Q.   Does she note the time you started the exam?

Q.   What time did it start?

Q.   Did she note the time you finished your exam?

Q.   What time did it finish?

Q.   So your entire exam took 12 minutes?

Q.   Doctor, had you ever met Al before this exam?

Q.   Do you ever expect to see Al again?

Q.   What was your understanding as to why you were hired to do this exam?

Q.   So the people who hired you weren’t interested in any opinions you had concerning treatment that might help Al have a more complete recovery?

Q.   The truth is, you were hired to see Al on one occasion so that you could testify as to your observations during this trial?

§9:94        Records Not Reviewed by Doctor

Q.   Doctor, it is my understanding that you never actually had an opportunity to see Al’s X-rays. Is that true?

Q.   They were never sent to you by the defense lawyer?

Q.   Now, when you treat your own patients, don’t you like to look at their X-rays yourself?

Q.   And don’t you prefer to interpret those X-rays yourself?

Q.   But for some reason the defense lawyer didn’t give you that opportunity here with Al, did he?

Q.   Doctor, I would like to give you a chance to look at Al’s X-rays. Would you take a look at Exhibit 1? Do you agree with me that it is a May 1, 2001 X-ray of Al’s knee?

Q.   Does it show a tibial plateau fracture?

Q.   Can you show us where that would be?

Q.   Does it involve the articulating knee joint?

Q.   Can you show us?

Q.   Doctor, we have an artist rendition of that fracture. Is that a fair and accurate representation of what the X-ray shows?

Q.   We also have a drawing of a lateral meniscal tear in the area of the tibial plateau, don’t we?

Q.   Is that accurate?

Q.   Does it show the part of the meniscus that was removed by Al’s treating physician?

Q.   Why do we have a meniscus in our knee?

Q.   Is it better to have a meniscus than not to have one?

Q.   Doctor, would you agree with me that of all the possible causes in the universe, the most likely cause of Al’s torn meniscus was the auto crash?

Q.   Now, Doctor, you had an opportunity to review all of Al’s past medical records before the auto crash didn’t you?

Q.   And the truth is, Doctor, you didn’t see any evidence in his previous medical records of problems with his left knee before the auto crash?

Q.   In fact, in your initial report, it was your conclusion that the meniscal tear was caused by the auto crash, isn’t that true, Doctor?

Q.   Well, Doctor, I have a blow-up of page two of your independent report, the one you prepared and sent to the defense counsel. Let’s read it together just to make sure I’m getting this right. Doesn’t the first sentence of the second paragraph say, “My assessment of this patient is that he sustained a lateral meniscal tear and a lateral tibial plateau fracture as a result of this motor vehicle accident?”

Q.   Doctor, I would like to show you another X-ray. This one is of Al’s knee taken approximately two months after the auto crash. Now, you never had an opportunity to see this X-ray before today, have you?

Q.   Can you tell us what it shows?

Q.   Can you tell us why there are two screws in his knee?

Q.   We also have an artist’s drawing of his knee. Is it a fair and accurate rendering of what Al’s knee looks like now?

Q.   Are those screws still in his body?

Q.   Will they remain in his body for the rest of his life?

Q.   Doctor, is there a chance that they may have to come out at some time?

Q.   Why?

Q.   If they did have to be removed, what would be the total cost?

Q.   How long would the recovery period be?

Q.   Doctor, you have told us that it is possible that Al may need a total knee replacement operation sometime in the future. Would you take a look at Panel #3 and tell me if that artist’s rendering is a fair and accurate representation of how a total knee replacement is done?

Q.   Can you explain to the jury, using that diagram, how you do a total knee surgery?

Q.   Now, Doctor, you have already told us that a person who has a total knee operation is put under anesthesia, correct?

Q.   Is there at least some risk that a person will die from the anesthesia?

Q.   Does a person who has a total knee replacement run any risk of infection?

§9:95        Doctor’s Ongoing Relationship With Defense Counsel

Q.   Doctor, this wasn’t the first time that Attorney Brown has asked you to do a compulsory medical examination on one of his cases, is it?

Q.   The truth of the matter is that you and Attorney Brown have had an ongoing relationship for over ten years?

Q.   Your best estimate is that you have been asked to do approximately four or five examinations by him or members of his law firm each year since you have arrived in our community?

Q.   So it’s fair to say you have done 40-50 compulsory medical examinations for Attorney Brown or members of his firm?

§9:96        Economics of Doing Compulsory Medical Examinations

Q.   Now, Doctor, other defense attorneys in our area also hire you to do compulsory medical examinations?

Q.   In fact, your best estimate is that you do two or three a month on average?

Q.   So if my math is correct, you are doing approximately 24-36 a year?

Q.   Now, when you do these examinations, you usually charge $500.00, correct?

Q.   When your deposition is taken by a lawyer such as myself who represents an injured person, you charge us $600.00, an hour don’t you?

Q.   When your videotaped deposition is taken in a case like this by Defense Lawyer Brown, you charge $1500.00?

§9:97        Inconsistencies With Prior Testimony

Q.   Doctor, although you do a lot of compulsory medical examinations for defense lawyers, you also treat injured victims of car crashes, don’t you?

Q.   In those cases, you are often called by a plaintiff’s attorney such as myself to testify about your patient’s injuries?

Q.   In fact, several years ago, you testified in the case of Paul Pike?

Q.   Doctor, let me help refresh your memory. I have a copy of your trial transcript. Would you like to take a look at it?

Q.   Doctor, would you look at page 1, line 6?

Q.   Does that refresh your memory as to what Paul Pike’s injury was?

Q.   Doctor, Paul Pike had a tibial plateau fracture very similar to Al’s, didn’t he?

Q.   In fact, you treated it the same way by using two screws to hold the pieces in place, didn’t you?

Q.   Doctor, would you now look at page 36, line 8?

Q.   Would you read that line for us?

Q.   Doctor, you testified under oath in the Paul Pike case that more likely than not he would need a total knee operation sometime in the future because of his tibial plateau fracture, didn’t you?

Q.   But in this case, where you have been hired to testify for the defense, you believe it is only a possibility, is that true?

No further questions.

Cross-Examination of Defense Orthopedic Surgeon (Rotator Cuff Injury)


§9:110      Preparing Your Cross Examination of the Defendant’s CME Doctor

Preparation is the key to a successful cross examination of a defense doctor. Begin by reviewing his compulsory medical examination identifying all points that are positive to your case. Then do the same with his deposition. Next, do some Internet research on the injury, rotator cuff tears. Be sure to visit the American Academy of Orthopedic Surgeons site. It is hard for any board certified orthopedic surgeon to argue with information contained there. Check specifically for statements of fact concerning symptomology of the injury that are consistent with your client’s history.

Don’t forget to check and see if the doctor has a website and if rotator cuff tears are discussed there. If so, again review the materials carefully for statements that help your case.

Finally, focus on the doctor’s main negative opinions. If he is arguing that the rotator cuff injury occurred before your auto crash, review the medical records and look for lack of treatment, lack of complaints, and lack of symptomology consistent with a rotator cuff tear. Point these out during cross-examination.

If he is claiming that the injury was caused by the auto crash but has healed fully, check the post-incident records, especially physical therapy records, for evidence of limitation of motion, description of lack of strength, or complaints of pain.

Finally, if he is claiming that your client would eventually have needed rotator cuff surgery even without the auto crash because he works in a profession that is prone to these types of injuries, show clearly that there was no symptomology before the auto crash,  all symptoms occurred after the auto crash, and at the very least, the auto crash aggravated a previously existing condition in a significant way.

§9:111      Outline of Cross-Examination of the CME Doctor

Trials are exciting. They get the heart pumping. But the excitement of the moment makes it difficult for you to review notes during cross-examination. That’s why it is important to prepare a one or two page outline that can be scanned quickly to make sure that all the points on cross-examination are covered.

Cross-Examination of Defense Doctor David Fullofit

Essential Points:

A.    Points of Agreement

1.     Details of the accident;

2.     Post-crash symptoms consistent with diagnosis of a rotator cuff tear;

3.     Conservative treatment did not work;

4.     Surgery was necessary;

5.     Post-surgical treatment was appropriate;

6.     All surgical charges and orthopedic expenses are reasonable;

7.     Plaintiff was unable to work for approximately four months.

B.    Areas of Disagreement

1.     Injury pre-existed auto crash:

a.     Doctor had access to plaintiff’s records for the ten years before the auto crash;

b.     In those ten years, there had only been two complaints involving the right shoulder;

c.     Those complaints were six years and two years before the auto crash;

d.     On each occasion, client was given a cortisone shot which took care of the pain;

e.     In a follow-up visit approximately eighteen months before the auto crash, physical exam showed full range of motion in the shoulder, normal strength and no complaints of pain;

f.      Shoulder pain that occurred before the auto crash is more consistent with bursitis than a rotator cuff tear.

g.     If indeed client had a rotator cuff tear before the auto crash, he would not have been able to work.

h.     Rotator cuff tears do not heal on their own.

2.     Because of the nature of his work, plaintiff would have had rotator cuff surgery even without the auto crash:

a.     Client had been working for two years before the auto crash without any complaints of shoulder pain;

b.     Client had immediate complaints of shoulder pain after the auto accident;

c.     Client was unable to work after the auto accident;

d.     Client’s symptoms after the auto crash were consistent with a rotator cuff tear;

e.     At the very least, the auto crash aggravated a pre-existing condition;

f.      This aggravation made surgery necessary.

3.     The Plaintiff has had a complete recovery:

a.     Plaintiff still lacked full range of motion at the time of his last orthopedic examination;

b.     Plaintiff was still complaining of pain;

c.     Plaintiff still showed evidence of lack of strength;

d.     Deposition of plaintiff demonstrates he still has problems;

e.     Doctor has patients with rotator cuff tears that have been surgically repaired;

f.      Many of these patients come back later complaining of pain;

g.     He has prescribed additional therapy, cortisone shots and other types of treatment for these patients.

C.   Sample Cross-Examination

Points of Agreement

§9:120      Details of Accident

Q.   Doctor, before we discuss points of disagreement, let’s talk about the facts that aren’t in dispute, okay?

Q.   For instance, we both agree that Frank Hamm was involved in an auto crash on August 15, 2007, don’t we?

Q.   At the time of the crash, Frank Hamm was sitting in the front right passenger seat, wasn’t he?

Q.   Now as a passenger, his seatbelt would have come across his right shoulder, correct?

Q.   This means when the crash occurred, a lot of force would have been put on that shoulder from the belt itself?

§9:121      Post-Crash Symptoms Consistent With Rotator Cuff Tear

Q.   Now Frank was taken from the crash scene by ambulance to Cape CoralHospital, wasn’t he?

Q.   You’ve had an opportunity to review the ambulance records, haven’t you?

Q.   They indicate that he was complaining of pain in the right shoulder, correct?

Q.   Pain in the right shoulder is one symptom of a rotator cuff tear, isn’t it?

Q.   When Frank arrived at the emergency room, he was examined by Dr. George Bell, wasn’t he?

Q.   Dr. Bell noted that he had limitation of motion, lack of strength, and pain in the right shoulder, didn’t he?

Q.   These symptoms are all consistent with a rotator cuff tear, aren’t they?

Q.   Now an x-ray of the shoulder was taken in the ER, wasn’t it?

Q.   This x-ray was negative, meaning there were no bony abnormalities?

Q.   But the rotator cuff involves ligaments and not bones, isn’t that true?

Q.   So you would not expect to be able to see a rotator cuff tear on a plain x-ray, would you?

Q.   As a result of his examination the emergency room doctor told Frank he needed to see an orthopedic surgeon and recommended Dr. Bobby Bones, didn’t he?

§9:122      Conservative Treatment Does Not Work

Q.   Now Frank saw Dr. Bobby Bones on August 30, 2007, didn’t he?

Q.   Dr. Bones examined him and noted the same symptoms found by the ER physician?

Q.   This included pain in the right shoulder, limitation of motion, and lack of strength, correct?

Q.   Now in her initial notes, Dr. Bones stated that she suspected a rotator cuff tear but she wanted to try a conservative treatment first?

Q.   So Dr. Bones ordered two weeks of physical therapy, didn’t she?

Q.   Frank Hamm followed her advice and went to physical therapy three times a week for two weeks?

Q.   Despite physical therapy, Frank’s symptoms were the same the next time he saw Dr. Bones, weren’t they?

Q.   So Dr. Bones ordered an MRI to determine whether or not there was a rotator cuff tear, didn’t she?

Q.   An MRI was taken on September 21, 2007, correct?

Q.   Now you had a chance to review not only the MRI report but also the actual films, haven’t you Doctor?

Q.   They show a full thickness tear of the supraspinatus tendon with a four centimeter retraction, don’t they?

Q.   Doctor, I have the films right here. Would you be so kind as to review them with me?

Q.   Doctor, do you agree these films show a full thickness tear of the supraspinatus tendon?

Q.   Can you show the jury where it is?

Q.   Is there also a retraction of the tendon?

Q.   Can you demonstrate that to the jury?

Q.   So we all agree that the MRI, taken approximately three weeks after the auto crash, shows a clear rotator cuff tear?

§9:123      Surgery Was Necessary

Q.   Now Doctor, a rotator cuff tear like this will not heal on it’s own, will it?

Q.   Surgery was necessary to correct this situation, wasn’t it?

Q.   Dr. Bones did surgery on October 12, 2007, correct?

Q.   Now you don’t have any complaints with the surgical work done by Dr. Bones, do you?

Q.   It’s your opinion that rotator cuff surgery was necessary at that time and that Dr. Bones did it correctly, isn’t that true?

§9:124      Post Surgical Treatment Was Appropriate

Q.   You also don’t disagree with the treatment Frank received after his surgery, do you?

Q.   For instance, you yourself would have immobilized Frank’s right arm for the first four weeks after the surgery to allow healing of the tendon, wouldn’t you?

Q.   You also would have ordered aggressive and extensive physical therapy after the healing process with the hope that Frank would regain range of motion and strength in the shoulder?

§9:135      All Charges and Expenses Were Reasonable

Q.   Doctor you would also agree that Dr. Bones’ charges and those of the hospital related to the surgery were reasonable and customary for the services provided in our area, wouldn’t you?

Q.   If Frank had been your patient, the charges would have been similar for this type of work, wouldn’t they?

§9:136      Plaintiff Was Unable to Work for Approximately Four Months

Q.   Now Doctor, we can agree that there would have been no way for Frank to work eight hours a day painting ceilings during his recovery after surgery?

Q.   In fact, isn’t it true that Frank was unable to work from the date of the auto crash until approximately four months later?

Q.   So it would be fair to say that any income he lost in that four month period was because of the rotator cuff tear?

Areas of Disagreement

§9:150      Injury Pre-Existed Auto Crash

Q.   Now Doctor, in your direct examination, you tried to suggest to this jury that Frank’s rotator cuff tear actually occurred before his auto crash, didn’t you?

Q.   Is it fair to say that you based this opinion solely on the fact that he had complained of right shoulder pain on two occasions previous to the crash?

Q.   Doctor, let’s look at those complaints carefully; the first occurred six years before the crash, isn’t that true?

Q.   More specifically, on October 5, 2001, Frank saw an orthopedic surgeon named Dr. Jones and told him he was having pain in his right shoulder, correct?

Q.   He was not complaining of lack of strength at that time, was he Doctor?

Q.   Nor did he complain of lack of motion?

Q.   In fact, Dr. Jones examined him that day and found that he had full range of motion and good strength, but felt pain when he moved his shoulder, isn’t that true?

Q.   Dr. Jones’ impression at that time was bursitis, wasn’t it?

Q.   Nowhere in his records did Dr. Jones suggest that Frank had a rotator cuff tear, did he?

Q.   In fact, Dr. Jones treated this situation by giving him a cortisone shot, correct?

Q.   You would agree with me that a cortisone shot is the proper treatment for pain caused by bursitis?

Q.   Now after the cortisone shot, Frank got better and did not return to Dr. Jones, did he?

Q.   In fact, in his deposition, Frank said he got complete relief from the cortisone shot and did not need to go back to the doctor, isn’t that true?

Q.   Now after this first incident of shoulder pain, Frank didn’t have a similar problem for almost a year and a half, did he?

Q.   His next complaint occurred on May 5, 2003, didn’t it?

Q.   Once again, Frank went to see Dr. Jones, the orthopedic surgeon, correct?

Q.   Dr. Jones felt it was bursitis and gave him another cortisone injection, isn’t that true?

Q.   Frank had complete relief after the injection and never returned to Dr Jones again, did he?

Q.   Now Doctor, if indeed these two previous complaints of shoulder pain were symptoms of a rotator cuff tear, wouldn’t you have expected there to be some restriction in Frank’s arm motion?

Q.   Wouldn’t you have also expected some changes in strength?

Q.   But Dr. Jones’ records indicate that neither were present, don’t they?

Q.   Now Doctor, from May of 2003 until the auto crash of August 15, 2007, Frank continued to work as a painter 40 hours a week, didn’t he?

Q.   His work included painting walls and ceilings, did it not?

Q.   Doctor, wouldn’t you agree with me that if he had truly had a rotator cuff tear as significant as the one shown in the MRI of September 23, 2007, it would have been difficult if not impossible for him to do the kind of work his job requires?

§9:151      Plaintiff Would Have Needed Surgery Even Without Auto Crash

Q.   Doctor, in your direct examination, you also suggested that because Frank was a painter whose job often required him to work overhead, he was prone to develop a rotator cuff tear even without the auto crash. Have I summarized your testimony fairly?

Q.   But Doctor, you are willing to admit that there are many painters who have had long careers and never suffered rotator cuff tears, correct?

Q.   In fact, we can say that most painters do not go on to have rotator cuff tears, can’t we?

Q.   Now Doctor, before the auto crash, Frank had worked as a painter for over 20 years and had problems with shoulder pain only twice, correct?

Q.   In fact, he had absolutely no complaints of shoulder pain in the four years previous to the auto crash, isn’t that true?

Q.   But Doctor, immediately after the auto crash, Frank was no longer able to work, was he?

Q.   He remained unemployed until he recovered from his rotator cuff surgery?

Q.   So Doctor, looking at his work history both before and after the auto crash, you must admit that something happened during the crash that changed his previous health situation?

Q.   Doctor are you willing to at least admit that the auto crash aggravated the pre-existing shoulder situation that you claim he had?

Q.   Are you further willing to admit that but for this aggravation, he wouldn’t have needed surgery at the time he had it?

§9:152      Plaintiff Has Made a Complete Recovery

Q.   Now Doctor, another point you made on direct examination was to suggest that Frank has had a complete recovery from his rotator cuff surgery, correct?

Q.   Doctor, you’ve had a chance to review all the medical records of his treating physician and his physical therapist, haven’t you?

Q.   Don’t they indicate that when compared with his uninjured side, Frank lacks motion in his right shoulder?

Q.   He also lacks strength, doesn’t he?

Q.   According to the history taken by both the physical therapist and his treating physician, he is still suffering pain at work after he uses his arm for more than an hour or two, isn’t he?

Q.   Now Doctor, you’ve also had a chance to review the plaintiff’s deposition, correct?

Q.   So you know he has given up playing basketball and football with his kids because of his shoulder pain?

Q.   He has also given up tennis for the same reason, hasn’t he?

Q.   In fact, he admits that even with a simple task like lifting a half gallon of milk, he now favors his left arm rather than his right because of pain, isn’t that true?

§9:153      Plaintiff Will Not Need Future Medical Care

Q.   Finally, Doctor, on direct examination, you suggested that Frank won’t need any additional medical care for his shoulder in the future, isn’t that correct?

Q.   But Doctor, in your own practice, you have treated people with rotator cuff tears, haven’t you?

Q.   And some of your patients required surgery, didn’t they?

Q.   Isn’t it true that even after you did surgery, some of your patients still had problems?

Q.   Some never got back their full range of motion?

Q.   Others never regained their full strength, did they?

Q.   And still others continued to have periodic complaints of pain?

Q.   Now Doctor, in your own practice, if someone continues to have symptomology from a right rotator cuff tear even after you have done surgery, you don’t just abandon them, do you?

Q.   You try to help them, don’t you?

Q.   So even after rotator cuff surgery, you’ve recommended additional physical therapy for some of your patients, haven’t you?

Q.   You’ve also injected them with cortisone shots, right?

Q.   You’ve even prescribed pain medication for short periods of time for some of them?

Q.   So Doctor, are you willing to admit that since you’ve had patients who have incurred additional medical expenses even after rotator cuff surgery, that it is possible that Frank may incur similar expenses in the future?

No further questions.

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.