By Dorothy Clay Sims

Excerpted from Exposing Deceptive Defense Doctors

§18:11 Background

Q:        Doctor, can you tell me if you had any formal classes in medical school devoted solely to treatment of pain? [This is extremely rare in U.S.medical schools.[i]Most doctors have had no formal training in understanding pain.]

Q:        What is the name of the class?

Q:        And certainly there is a transcript confirming this?

Q:        Doctor, have you taken the examination for pain management approved by the American Board of Medical Specialties (ABMS)?

Q:        Do you even know what I am talking about?

Q:        Are you a member of the American Board of Pain Medicine (ABPM)?

Q:        Doctor, are you board certified by the American Board of Medical Specialties Physical Medicine and Rehabilitation subspecialty in Pain management?

Q:        Are you board certified in Pain Management by the American Academyof Experts in Traumatic Stress?

Q:        How about the subspecialty of Pain Management for the American Society of Anesthesiologists?

Q:        Are you board certified in Pain Management by the American Board of Medical Specialties?

Q:        Are you board certified in Pain Management by the AmericanAcademy of Pain Management?

Q:        Doctor, are you board certified in pain management at all?

Q:        Doctor, have you ever published any articles on [lumbar] pain in any peer review journals?

            Assuming the doctor is board certified in something:

Q:        Doctor, did you pass the test on the first try? [This is a sensitive issue with defense doctors because they may have flunked the first time, but won’t volunteer this information.]

§18:12 Case Preparation, Research

Q:        Doctor, are you familiar with the International Association for the Study of Pain, otherwise known as the IASP?[ii]

Q:        Are you familiar with the IASP Task Force on Taxonomy publication, Classification of Chronic Pain?[iii]

Q:        Do you know who sits on the Task Force?

Q:        Are you aware that the IASP Task Force is l2 years old?

Q:        Are you aware that l3 countries are represented on this Task Force?

Q:        Are you aware the Task Force consists of over l00 internationally known and respected doctors who got together and created a book containing descriptions of chronic pain syndromes and definitions of pain terms?

Q:        The Task Force was responsible for the development and widespread adoption of universally accepted definitions of terms and a classification of pain syndromes, correct?

Q:        Have you looked up my client’s condition in the Classification of Chronic Pain?

Q:        So you have not even researched the international standards for classifying pain?

Q:        Doctor, show me any articles/journals you reviewed in preparation for this lawsuit.

Q:        Have you done a meta-analysis on treatment of [your client’s condition, e.g., chronic pain or herniated discs with radiating pain] with the symptoms/findings in this case?

Practice Point: What is a meta-analysis?

A meta-analysis is a review of many articles on a subject, i.e., lots of research to see what peer-reviewed journals say on the topic, not just a review of those articles that support the conclusion you want to reach. If the doctor says he has done a meta-analysis, ask him to identify a single article by name which supports your position. Make sure you have examples of these articles helpful to the plaintiff. Point out that he may have reviewed lots of articles to support the defense position, but if he had done a fair literature review, he would have articles in his file supporting both sides. Ask the DME:

Q:        Doctor, you would agree that prior to rendering an opinion on this topic, it is important to stay current in the science and literature?

Q:        You would also agree that it would be unethical to research and copy only those articles supporting the defense position right?

Q:        Doctor, you mentioned earlier, when I showed you my research, that there are articles on just about everything that take one side or another on an issue, correct?

Q:        That being the case, show me where you found articles that supported the plaintiff’s side?

Q:        Doctor, I have dozens of articles supporting our position and it looks like you only have research that support’s your position. Why did you ignore the articles supporting the plaintiff?

Practice Point: If he produces scientific evidence, what is the source?

When the doctor produces medical articles, ask him if the defense sent them to him. Look for the defense law firm’s fax number at the top of the document.

Q:        Doctor, can you show me any articles you’ve researched on this condition?

Q:        What? You haven’t researched this at all?

Q:        Doctor, aren’t they paying you $___ per hour with no cap?

Q:        You make more money in forensics [than in your clinical practice], right?

Q:        So it would help you, economically, if you took the time to verify your opinions with cold hard facts, wouldn’t it? That is, of course, unless the science doesn’t back you up, right?

Q:        So, doctor, just to sum up: I believe you’ve testified that (a) you have had no specific classes in the treatment of pain; (b) you have not published on this topic; and (c) you are not board certified in the treatment of pain. Is that right?

§18:13 Basic Medical Knowledge of Pain

Practice Point: When to ask these questions

The next phase of questioning might be to ask the doctor specific medical questions about pain. It will astound you to learn how little doctors know about the mechanism of pain in the human body. You can ask these questions at deposition and/or trial, but make sure your own doctor is familiar with the answers (unless you are saving these types of questions for trial, after your expert already has testified). If the treating doctor does not understand the subtle nuances of pain, this fact should not hurt your case as long as he knows how to treat it and does so appropriately. In my opinion, it is far worse for a doctor to claim to be an expert in pain and truly not understand it, yet feel as though he has the right to claim your client is lying and should have his pain medications (which are helping him function) taken away.

Q:        Doctor, where in the body is pain generated?

Q:        Where are the pain signals transmitted?

Q:        Where is pain perceived in the brain?

Q:        What chemicals are involved in that process and how are they involved?

Q:        What is the difference in where acute pain is perceived in the brain as opposed to chronic pain? [Acute pain is perceived in the sensory cortex; chronic pain is perceived in the sensory cortex and frontal lobes. When frontal lobes are involved, there is more emotional dysfunction, i.e. depression.]

Q:        What are the functions of the following pain-related structures in the brain and how do they work?

  • The deep layers of the superior colliculus?

  • The red nucleus?

  • The pretectal nuclei (anterior and posterior)?

  • The nucleus of Darkschewitsch?

  • The interstitial nucleus of Cajal?

  • The intercolliculus nucleus, nucleus cuneiformis and even the Edinger-Westphal nucleus?

  • The periaqueductal grey matter (PAG)?

Q:        Are you aware of the increased incidents of depression due to pain?[iv]

Q:        Pain can interfere with sleep, which can make the pain worse, right?

Q:        Pain can disrupt concentration and memory, correct?[v]

Q:        Do you agree pain can decrease brain volume?

Q:        In other words, chronic [back] pain can actually cause the brain to shrink, right?[vi]

Q:        Do you agree pain can cause other problems, including stress-related hormones promoting tissue breakdown, energy mobilization, and cardiovascular responses like tachycardia, hypertension, ischemia and ventricular arrhythmias, immune impairment?[vii]

Q:        Doctor, are you aware of the research indicating that the combination of depression and pain makes treatment even more difficult?[viii]

Q:        Are you aware of research indicating that stress and pain leave patients more susceptible to infection and complications?[ix]

Q:        Pain can even kill, can’t it, doctor?[x] [Related to accelerated tumor growth]

Q:        Isn’t it true that pain is now considered to be the 5th vital sign?

Q:        And isn’t it also true that the Joint Commission for Accreditation of Healthcare Organizations and the Department of Health and Human Services have begun to include pain control criteria alongside other criteria for accreditation and reimbursement?[xi]

§18:14 Knowledge of Pain as Related to Client’s Condition

Let’s say your client has a herniated disc on the right side and is complaining of pain on his left side. Most defense doctors will claim your client is a fraud. The following questions help to expose the DME’s lack of knowledge of the basic anatomy of pain, as it relates to the client’s specific condition. You can use this technique and similar questions to expose the DME’s ignorance of your own client’s pain condition.

Q:        Doctor, are you aware of studies that clearly show that a nerve injury on one side of the nerve (in rats) actually resulted in contralateral neuropathic pain – that is, pain on the opposite side?[xii]

Q:        Did you know that hemilateral nerve injuries in rats were found to cause contralateral mechanical allodynia induced by the hemilateral spinal nerve, which was associated with upregulation of satellite cells and TNFa in the contralateral DRG?

Q:        Are you aware that additional research suggests that spinal astrocytes also played a part in these changes on the opposite side of the lesion?

Q:        Doctor, do you even know what TNFa is?

Q:        How does the upregulation of satellite cells occur?

Q:        How do spinal astrocytes play a part in this pain reaction?

Q:        Can we assume you would not take the position that the rats are malingering?

§18:15 Exaggerated Pain

Q:        Doctor, did you have my client complete a pain diagram?

Practice Point: Compare pain diagram with standard dermatomes

Many doctors will have your client complete a pain diagram. See, e.g., Appendices 18-A, B, C. See also §18:03. Make sure you get it. Compare it to standard dermatomes. You can find them on the Internet in Google Images, as well as in the beginning of the American Medical Association Guide to Permanent Impairments. A dermatome is an area of skin innervated by sensory fibers from a spinal nerve.[xiii]  For example, a left-sided herniated disc in the lumbar spine may cause pain to follow a dermatome from the spine down the left leg, which can cause left leg pain. Make sure you show the pain diagram to your treating doctor to see if it is consistent with the plaintiff’s condition.

Q:        Doctor, do you disagree that the pain diagram is consistent with a known dermatomal pattern on an L4-5 disc?

Q:        What is my client’s pain level? [The DME didn’t check.]

Q:        Did you use any pain scales? [No.]

Q:        What is the normal pain level for this condition? [He won’t know. You can find out by checking the DME’s subspecialty website. See Chapter 3, Appendix 3-B, List of Medical Websites. These websites provide invaluable information on various conditions.]

Q:        So you don’t know my client’s pain level or the normal pain level for this condition, but you claim my client is exaggerating his pain?

Q:        Please identify each and every behavior that you believe is an example of this alleged “exaggeration” or “exaggerated pain response.”

Q:        Please identify each and every statement my client made which represents “exaggeration” or “exaggerated pain response.”

Q:        What exact symptom is my client malingering? [The DME typically won’t have an answer. Defense doctors wish to paint a broad picture of a malingering plaintiff, without filling in the details. See generally Chapter x: Malingering.]

Q:        Doctor, do you agree individuals can feel pain differently?

Q:        Are you aware of studies that were done wherein all the individuals were given the same exact painful stimulus, and fMRIs of the brain revealed they actually experienced the pain differently?

Q:        Therefore, you cannot say my client is exaggerating his pain complaints, can you?[xiv]

Q:        Are you saying my client is lying when he says he hurts? [Make sure your client is present via phone at the deposition. Advise the doctor of this prior to the deposition and provide notice to the defense attorney.]

Q:      Are you saying it is anatomically impossible for this condition to cause pain?

Q:       Why did you think it was more important to spend your valuable time listening to my client’s lung sounds, which were not relevant to this case, instead of documenting the level, type, and consistency of my client’s pain before you claimed he was not honest?

§18:16 Treatment with Narcotics

If the DME claims the treating doctor gave too many narcotics or the wrong narcotics ask:

Q:        Doctor, the treating doctor prescribed ______.  Can you tell me when the peak time is for that medication? (i.e., how long after ingestion before the medication is at its maximum benefit)

Q:        Can you tell me the half-life of the medication prescribed by the treater?

Q:        Doctor, if you can’t tell me the peak time or half-life of the medication, that means you don’t know:

  1. How long it takes before the medication starts to help the patient after he takes it; or

  2. How many hours the medication is typically beneficial.

If you can’t even tell me this basic information about the medication that was prescribed, please explain how you have the expertise to testify that it is the wrong medication.

Q:        Doctor, some people have highly efficient livers, such that they metabolize or breakdown a medication and flush it from their system faster than other individuals, right?

Q:        Before accusing the treating doctor of over-medicating the patient, don’t you think it might be a good idea to see if the patient’s body is metabolizing the medication (flushing it out of his system) at a rate that makes the treating doctor’s suggested frequency of narcotic appropriate?

Q:        You would do that by clinical correlation, which is to say, by asking the patient if the frequency is such that it makes his pain manageable, correct?

Q:        Many different factors can play a part in metabolism of medication, correct?

Q:        Show me where you factored that into your equation before you accused my client’s treating doctor of overmedicating.

Q:        Doctor, overmedicating someone can be medical malpractice, can’t it? [Most doctors are afraid to accuse other doctors of malpractice, due to fear of retribution if the claim is unscientific.  However, a few doctors still go too far. If the doctor claims it is malpractice, ask him if he has reported the treater to the board of medicine like he is supposed to do if he is aware of a doctor committing malpractice.]

Q:        What are the signs of overmedication you can document? [respiratory depression, hypotension, lethargy/sedation. Be careful not to confuse lethargy/sedation with depression. If the DME points to lethargy and/or sedation, ask how he was able to differentiate narcotics as the cause, as opposed to depression.]Q:        What objective factors can you document?

Q:        What subjective factors?

Q:        If the patient is still having pain, then it is likely the treater may actually need to increase the dose, right?

If the doctor recommends no narcotics for pain treatment:

DMEs may do this because it reduces the defense cost in a life-care plan or, perhaps, to paint the plaintiff as a drug addict to the jury, thus increasing the likelihood of a defense verdict. Ask the DME:

Q:        Doctor, you testified that my client should not have narcotics because it could cause him to become addicted, correct?

Q:        Can you show me where there is evidence that my client met the “high risk” definitions, as set forth by the American Academy of Pain Medicine?

Q:        Do you even know what they are?

Q:        Let me show you:

1.  First they require active substance abuse.[xv]  Can you show me evidence of this?

2.  Ok, how about a major untreated psychological disorder — did you find evidence of this in your report and diagnose my client or refer him out?[xvi]

3.  Show me specific evidence of the criteria that involves “significant risk to self and practitioner.”[xvii]

Q:        Let’s take a look at the definition of “low risk”[xviii] for addiction to narcotics which includes:

1.  No past/current history of substance abuse.

2.  Noncontributory family history of substance abuse.

3.  No major or untreated psychological disorder.

Doctor, can you identify a single example of a past or current history of substance abuse?

Q:        How about a family history of substance abuse?

Q:        Can you show me an example of an untreated psychological disorder? [If not, then the doctor must admit, at least according to the only published definition of risks of addiction on the table, that your client is in the low-risk category.]

Q:        Doctor, are you familiar with [look at your article so he knows you have the science behind you) the published statistics which indicate the actual addiction rate of individuals given narcotics?

Q:        Are you aware the actual “addiction” rate of narcotics is only 2-5%?[xix]

Q:        You indicate that you are concerned about the plaintiff so you recommend discontinuing his narcotics. Is that right?

Q:        So, even if the medication helps him, and the odds are 95-98% likely he won’tbecome addicted, you still want to take away his medicine?

Q:        Doctor, does that mean you consider my client to have a doctor/patient relationship with you? [Many doctors will deny this to avoid liability in the event anyone actually relies on their opinion.]

Q:        So, let me see if I understand your testimony:

1. You agree my client’s symptoms decreased with narcotics.

2.  You agree he has a condition known to cause pain.

3.  You agree you are not his doctor and he is not your patient.

Yet, you still claim here, under oath, that you have the ability to take away his medications? [That is the essence of his testimony.]

Q:        Doctor, do you normally make medical recommendations for individuals who are not your patients?

Q:        Doctor, isn’t it true that the real reason you claim this man is not your patient is to avoid liability if you commit malpractice?

Q:        Doctor, I understand you recommend no narcotics for the treatment of pain, is that right?

Q:        Are you familiar with the “patient rights and organizational ethics” as set forth by the Joint Commission Standards on Pain?[xx]

Q:        Now, let’s see:

1.  You have no formal training in pain management;

2.  You have not published on this subject and have done no research for this case; and

3.   You are suggesting this plaintiff has had NO narcotics, even though he is functioning and working and driving.

            Is that correct?

Q:        Where did you admit this in your report?

Q:        So, you would admit that if you take away my client’s narcotics, it can decrease his level of function, right?

Q:        Do you think that is kind, doctor, or the right thing to do — to demand that someone stop taking medicine that is actually helping him?

Q:        Are you willing to be considered a treating physician if doctors follow your advice, such that you would be subject to potential malpractice claims?  I mean, how deep does this feeling run?

Q:        Doctor, do you really think you are in a better position to suggest my client stop his narcotics even though you’ve never treated him and, as you’ve said, he’s not your patient?

Q:        Doctor, you seem to criticize the plaintiff’s physician for prescribing pain medication, is that right?

Q:        Are you familiar with the journal Pain?[xxi]

Q:        Are you familiar with the research showing not only do opioids/narcotics decrease pain, they also increase function?[xxii]

Q:        Are you familiar with the standards for the use of controlled substances for treatment of pain as set forth by Agency for Health Care Administration and Florida Pain Commission, Florida Board of Medicine and Florida Board of Osteopathic Medicine?[xxiii] [Do some quick research for similar publications in your state.]

Q:        You are governed by the State Board of Medicine, right?

Q:        Are you aware that the Florida Board of Medicine maintains that “inadequate pain control may result from physicians’ lack of knowledge about pain management or an inadequate understanding of addiction.”[xxiv]

Q:        Doctor, have you researched whether physicians, like yourself, who have not formally studied or taken specific classes for pain management may undertreat their patients with chronic pain?

Q:        Pain can certainly increase the probability of developing a psychiatric condition, especially depression, right?

Q:        Depression can be fatal, can’t it?

Q:        Doctor, isn’t it true that pain is often undertreated in many populations of patients?

Q:        Isn’t undertreatment of pain just as much of a problem as overtreatment?’[xxv]

Q:        So, let me see if I understand this:

1.  My client has pain.

2.  His treating doctor prescribed narcotics.

3.  The narcotics help reduce the pain.

4.  He’s not your patient; and you only saw him one time and not in the capacity of a doctor/patient relationship, correct?

And you still claim he should not be given narcotics?

Q:        Even though they help his pain?

Q:        Have you considered increased limitations and decreased function if his pain is not under control?

Q:        Have you considered the potential for increased depression due to increased pain if he does not have the ability to take pain medications?

Q:        Have you considered the potentially devastating effects of difficulty sleeping that can occur when his pain is out of control?

Q:        Is this how you would treat your own patient? A patient who has a condition that is known to generate pain; he has taken a medication that helps the pain; and you would tell that patient, “Sorry, I know the medicine helps but I’m not going to prescribe it to you”?

For additional discussion and sample questions re narcotics, see Chapter 17: Spine, §17:16.

§18:17 Causation

These questions assume your client has pain from a herniated disc after a car accident. Use this same technique to pin the DME down regarding the facts of your case.

Q:        Doctor, a car accident can cause a herniated disc, right?

Q:        Herniated discs can cause pain, right?

Q:        Doctor, where in the records is it documented that my client had pain of this type, location, and severity before the crash?

Q:        So my client has been alive for [e.g., 20,000] days, and could have had back pain on any one of those days, right?

Q:        And it just so happens, with 1-out-of-20,000 odds of developing painful symptoms, my client spontaneously developed these symptoms after a car crash which, you admit, could cause the symptoms, but didn’t, and you don’t know what else did. Is that right?

Q:        Can what event in my client’s life was statistically more likely to cause this pain, other than the crash?

[i]  Paradise, LA and PP Raj, “Competency and Certification of Pain Physicians,”Pain Practice, 4.3 (Sept 2004): 235.

[ii]  International Association for the Study of Pain (IASP), 2006, The International Association for the Study of Pain, 14 Dec

[iii] Task Force on Taxonomy, Classification of Chronic Pain: Descriptions of Chronic Pain Syndromes and Definitions of Pain Terms, 2nd Edition, Eds. Harold Merskey and Nikolai Bogduk, Seattle, WA: IASP Press, 1994.

[iv]  “Depression following spinal cord injury. A clinical practice guideline for primary care physicians,” Washington, D.C.: Paralyzed Veterans of America (1998), National Guideline Clearinghouse, 29 Jan 2007, <>.

[v] For a good discussion of the relationship between pain, concentration and memory, see This site discusses how pain may disrupt the memory traces required to retain information.

[vi] Apkarian, AV, et al., “Chronic Back Pain is Associated with Decreased Prefrontal and Thalamic Gray Matter Density,” Journal of Neuroscience 24.46 (17 Nov 2004): 10410-10415.

[vii] International Association for the Study of Pain: Pain Clinical Updates, “Pain Controls: The New ‘Whys’ and ‘Hows’,” Vol. 1, No. 1, Eds. DB Carr, et al., May 1993, 14 Dec 2006


[viii]  Blair, M, et al., “Depression and Pain Comorbidity: A Literature Review,” Archives of Internal Medicine 163.20 (10 Nov 2003): 2441. “[D]ifferent aspects of pain negatively affect several depression outcomes. Increasing pain severity, pain that interferes with daily activities, frequent pain episodes, diffuse pain, and pain that is refractory to treatment…”

[ix] M. Good, G. Anderson, S. Wotman, J. Albert, X. Cong, L. Chiang, E. Bernhofer, “Effects Of Relaxation/Music And Patient Teaching For Pain Management On Salivary Cortisol,”The Journal of Pain. vol. 9, issue 4 Supp. (April 2008). 

[x] International Association for the Study of Pain: Pain Clinical Updates, “Pain Controls: The New ‘Whys’ and ‘Hows’,” Vol. 1, No. 1, Eds. DB Carr, et al., May 1993, 14 Dec 2006 <

[xi] International Association for the Study of Pain: Pain Clinical Updates, “Pain Controls: The New ‘Whys’ and ‘Hows’,” Vol. 1, No. 1, Eds. DB Carr, et al., May 1993, 14 Dec 2006 <

[xii]  Hatashita, Satoshi, MD, et al., “Contralateral Neruopathic Pain And Neuropathology In Dorsal Root Ganglion And Spinal Cord Following Hemilateral Nerve Injury In Rats,” Spine, vol. 33: l344- 1355.

[xiii] 10/3/08

[xiv] Coghill, RC, et al., “Neural correlates of interindividual differences in the subjective experience of pain,” Proceedings of the National Academy of Sciences 100.14 (8 July 2003): 8538-8542.

[xv] Fine, Perry, MD, Fishman, Scott, Optimizing Opioid Therapy for Chronic Pain: Clinical and Legal Considerations, AmericanAcademy of Pain Management, Monograph, released 5/l/08, at 4.

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Fine, Perry, MD, Fishman, Scott, Optimizing Opioid Therapy for Chronic Pain: Clinical and Legal Considerations, AmericanAcademy of Pain Management, Monograph, released 5/l/08, at page 3.

[xx]Id. at 3.

[xxi]  The official publication of the International Association for the Study of Pain. Published by IASP, 7 Sept 2007. 

[xxii]  Rashiq, S, et al., “The Effect of Opioid Analgesia on Exercise Test Performance in Chronic Low Back Pain”, Pain 106.1-2 (Nov 2003): 119-25.

[xxiii]FloridaAdministrative Code, Chapter 64B8-9.013, p. 343 of 1559, 19 Oct 2003, The Florida Department of Health, 23 January 2007

[xxiv] Florida Administrative Code, Chapter 64B8-9.013(b), p. 343 of 1559, 19 Oct 2003, The Florida Department of Health, 23 January 2007.

[xxv] 1-/6 08  “the strengthened pain policy encourages boards to view undertreatment of pain as serious a violation as overtreatment.”

Dorothy Clay Sims has perhaps the most unusual legal practice in the nation. She helps lawyers cross-examine doctors in cases involving personal injury, long-term disability, medical malpractice, criminal law, family law, and workers’ compensation. In her 25 years as a lawyer, Ms. Sims has cross-examined thousands of doctors throughout the U.S. In addition to cross-examining doctors herself, Ms. Sims provides notebooks for lawyers to use in examining doctors which include background material on the expert as well as questions to use in deposition and trial. Ms. Sims is senior partner in Sims & Stakenbourg in Gainesvilleand Ocala, Florida, where her firm practices social security disability law and assists lawyers in understanding medical issues. Ms. Sims is the author of Exposing Deceptive Defense Doctors, from which this article is excerpted.