Special problems, preparation, and pattern examinations.
by Kim Patrick Hart
Excerpted from Deposing and Examining Doctors
Neurologists are used at trial in two distinctive types of cases. The first is when the plaintiff has a clear-cut neurologic injury, usually with devastating effects. These injuries can be as serious as total or partial paralysis or as simple as a severed nerve that results in lack of function and permanent numbness. These types of injuries are easy to deal with at trial. There is no debate on whether or not they exist and the doctor can explain in quite simple terms how the auto crash or an injury at work caused the problem.
But in 99% of the cases where neurologists are involved, these are not the injuries you are dealing with. Instead, neurologists are being called to testify concerning vague neck and back complaints or general complaints of pain. You will be dealing with controversial diagnoses such as reflex sympathetic dystrophy (also called complex regional pain syndrome), fibromyalgia, thoracic outlet syndrome, and others. In these types of cases, the jury’s decision will be based primarily on the credibility of your client. But a supportive neurologist who is properly prepared for trial can help you point the jury to the conclusion that your client is legitimate and his pain is real.
Preparing for trial is a lot like cooking. Many of the ingredients must be prepared beforehand and timing is crucially important. That’s why I like to prepare a timeline for each case as soon as we receive a Notice of Trial.
The purpose of the timeline is to focus my thinking on all the things that need to be accomplished before the trial begins. The notice of trial gives you the endpoint of the timeline by setting the date of the trial. From there you work backwards, allowing yourself enough time to complete all the tasks necessary to be fully prepared and ready for the main event.
Sequence is important here. Obviously, exhibits need to be done before the trial testimony of the neurologist is taken. I’m a big believer in jury research. This needs to be completed two to four weeks before trial to allow enough time for your jury expert to interpret the data and prepare proposed voir dire questions for you.
If I’m going to present my treating neurologist at trial on videotape, I like to schedule the videotaped deposition within two weeks of the trial itself. Before that deposition, I try to arrange for my client to be examined by the doctor. Often, if it can be arranged, we set up an examination immediately before the videotaped deposition. By doing this, the neurologist is prepared to give up to the minute testimony concerning the client’s current condition, and since the client is physically there, she can be used as an exhibit to demonstrate to a jury on videotape where she is having pain or functional problems. Form 6:10 gives you an example of a Preparation for Trial Timeline.
Recently, high-tech computer generated exhibits have become all the rage. Many younger trial lawyers Power Point their way seamlessly through opening statements and closing arguments. But I still believe that the low-tech poster board exhibits are most effective at trial. I have primarily two problems with computer-generated exhibits. First, they are two-dimensional. When medical bills are enlarged and placed on poster boards, they have a feel, a texture that seems to make them more real to a jury. When they are simply projected on a screen, I think they are easier to ignore. Second, when exhibits are physical in nature, you can grab them at any time and put them on an easel. There is always some setup, and of course the likelihood of computer glitches, when using Power Point and other similar programs.
There are two documents that I recommend to be blown up and put on poster boards for virtually every personal injury case. They are your medical bill summary sheet and verdict form. I use the medical bill summary sheet during the direct examination of my client and treating neurologist and in closing argument.
A blow-up of your verdict form is an invaluable tool at closing argument. I use it as my outline for arguing damages once the issue of liability has been discussed. I walk the jury through every question and write on the exhibit the dollar amount of damages that I recommend be awarded for each element of damages.
Invariably, after my closing statement, the defense lawyer gets up, takes the poster board and turns it against the wall. By doing so, he underlines for the jury my suggestions for damages. The jury will often take one last look, fearful that they won’t see these figures again.
Medical illustrations showing your client’s injury in graphic color detail certainly assist both your neurologist in explaining the injury and the jury in understanding it. But professionally prepared exhibits cost on average $2500.00 to $5000.00 depending on size and detail.
My general rule is the more obvious the injury, the less these are necessary. For instance, if your client has broken his leg and a doctor had to do an open reduction using plates and screws, simply showing an X-ray of the leg containing all that hardware will speak volumes. But if you are dealing with a complicated diagnosis such as fibromyalgia where an X-ray cannot show your client’s injury, it makes good sense to spend the money for medical illustrations that will help you demonstrate an injury that will not be obvious to a jury through their observations of your client. With fibromyalgia an exhibit can be made to show the trigger points of pain and to list the diagnostic criteria that the doctor used to determine your client’s problem. This underscores for the jury that your client has a real problem.
§6:04 Live or Videotape?
From my experience, direct examination of a treating neurologist tends to be pretty boring stuff. Although there are exceptions, neurologists themselves don’t tend to be the “Robin Williams” of the medical field. Many are basically shy, intellectual types with all the charisma of soda crackers.
This is just one additional reason why videotaped depositions of neurologists for use at trial make more sense than bringing them live. Normally the doctor feels more comfortable in her office. The doctor also can be more doctor-like and clinical when looking at a camera with only a few people around than when she is in an intimidating courtroom having to explain medical concepts to six jurors.
The other advantages of videotape also play out here. Since the doctor’s testimony is taken weeks before trial, you know what she says and you know exactly how it will play to the jury. There are no surprises.
You also are given the luxury of putting it on at the most convenient time in your case. When you call a doctor live, you must work around the doctor’s schedule and most times call him out of turn.
There is a great fear among trial practitioners that a jury will discount the testimony of their treating neurologist if she appears by videotape and the defense calls their compulsory medical examiner live, but even in soft tissue cases, I haven’t found this to be true. Our jury research and trial experience suggest that in cases where an injury cannot be physically shown to a jury, the testimony of the treating physician and the CME doctor usually cancel each other out. The tie-breaker is whether or not the jury likes your client.
There are exceptions to my general rule of videotaping treating physicians. Every now and then, I encounter a doctor who is just personable. You like her and jurors like her, too. She has that unique ability to talk in plain English and explain things so that everyone understands them. If you stumble across a gem like this, by all means call her live at trial if she is agreeable. If she has any reluctance at all, videotape.
§6:05 Special Problems
The main problem with neurologic injuries is they cannot be easily demonstrated to a jury. Unless the client has suffered a catastrophic injury where nerve damage has totally taken away the function of arms or legs, you are usually dealing with a situation where a neurologist is trying to explain vague and continuing complaints of pain that occurred after an auto crash or fall. When faced with these kinds of problems, your doctor needs to be as specific as possible about what the injury is, how it was caused, and how it is affecting your client’s life.
In many instances, your job is not only to convince the jury that your client is really injured, but that the diagnosis made by your doctor is real and makes sense. For instance, if your doctor is claiming that your client had reflex sympathetic dystrophy as a result of an auto crash, you are not only going to have to define that term, you are going to have to break it down into its basic elements and have the doctor show point by point that each element required for the diagnosis is there. The doctor must be prepared to explain the mechanism of how the auto crash caused this injury. He is also going to have to recommend a treatment or a medical approach to the problem that makes sense to the jury.
These same types of problems arise with a diagnosis of fibromyalgia, which the defense lawyer and his compulsory medical examiner will label as a “garbage pail diagnosis.” They will try to convince a jury that the syndrome does not actually exist and this term is used when a physician has no real explanation for complaints of pain. They will try to supply the jury with a better explanation by suggesting that your client is simply faking the symptoms to increase the value of the claim.
In this circumstance, your doctor will have to explain how she made the diagnosis. With fibromyalgia, your neurologist will have to identify the trigger points of pain and note how many of these trigger points were active in your client. The jury will benefit by knowing that this is a recognized diagnosis by the American Medical Association and will tend to accept this diagnosis if they are given a complete history of how the American Medical Association was able to determine that these are real problems and that there are scientifically accurate ways of diagnosing and treating this syndrome. When dealing with neurologic injuries, keep repeating the same mantra throughout your preparation: “Make the injury real to the jury.”
Preparing the Treating Neurologist to Testify
§6:10 Review Main Points
Neurologists, like orthopedists, are very busy people. For that reason, you will probably have no more than 30 minutes to prepare your doctor for her trial testimony. Your preparation time may actually be as short as 15 minutes. So be prepared to review the main points you hope to establish on direct examination quickly.
These points usually include:
Patient was in an auto crash (or other accident).
As a result of that auto crash, he was injured.
The mechanics of how that crash (or accident) caused the injury.
What the injury is.
An explanation of how the doctor was able to diagnosis the injury.
How the doctor treated the injury.
If the injury is permanent in nature.
Causation—the injury would not have occurred but for the auto crash.
The future effects of the injury.
All past medical bills related to this injury would not have been incurred but for the auto crash.
Expected future medical expenses related to these injuries.
The effects of the injury on your client’s ability to earn income in the past.
The effects of the injury on your client’s ability to earn income in the future.
§6:11 Medical Illustrations and Exhibits
If you are going to use medical illustrations during your doctor’s trial testimony, you should have included the doctor in the process of preparing them. Hopefully before your preparation meeting the doctor has seen initial drawings and has made recommendations on how they can be more accurate.
At your pre-trial meeting, review the final product with the doctor and discuss how it can be best used during her examination. Also review with the doctor any exhibits that you may want to introduce at trial through the doctor’s testimony. The most obvious are a list of the medical bills. My recommendation is always to use a summary of these bills, not the actual bills themselves. The problem with the actual bills is that they often include information concerning collateral sources and payments received from health insurance carriers. By the time you try to remove these, the bill looks like a crossword puzzle. It is simpler to summarize medical expenses.
Use your preparation meeting to determine whether or not your doctor feels comfortable in using your client during her testimony. If she is, have her demonstrate where the pressure points of pain are and the functional loss that has occurred as a result of the crash by using your client as a model. This works well both on videotape and live.
§6:20 Review Main Points
Since time will be of the essence, be prepared to hit the main cross-examination points quickly during your pre-trial meeting with the neurologist.
Review with her all the weaknesses in your client’s past medical records and in his medical history. For instance, if you are dealing with a client who has developed carpal tunnel syndrome as a result of an auto crash, show the doctor every pre-crash medical record that makes any reference to pain or unusual sensations in the fingers, hands or arms. If your client in his history to your treating neurologist has said that he has never had any previous problems with his right arm and his records indicate that he has, make this clear to the neurologist. Inaccurate histories are one of the most effective cross-examination bullets in the defense lawyer’s holster.
If you are dealing with a minor collision with very little property damage, show your neurologist the photos taken of the vehicles involved in the auto crash after it occurred. Make sure she is prepared to explain that significant injury can occur to the human body even in situations where metal and steel are not bent and broken.
§6:21 Review Previous Testimony
Before meeting the doctor, you should have reviewed her list of previous deposition and trial testimony to determine which ones involved injuries similar to yours. You should have gotten those depositions and reviewed them thoroughly. If she said anything in those depositions that can hurt you in your case, you need to alert her of the problem. She will be thankful you did because no one wants to look like a fool during cross-examination.
§6:22 Prepare for Questions Concerning Doctor’s Relationship with You and Finances
Make sure the doctor is prepared to handle the questions concerning her relationship with you. The best advice here is for her to be honest to a fault. If you have referred clients to her, she should admit it. If she has referred patients to you, this must be admitted also.
Finally, make sure she is prepared for the financial questions concerning how much she makes treating victims of auto crashes, giving depositions, and appearing at trial.
§6:23 Identify Two or Three Main Problems
Although preparing doctors for trial testimony is similar in every case no matter what the specialty, in each individual lawsuit there are two or three unique problems that need to be brought to the doctor’s attention. Identify these before meeting with her and make sure she has a thorough understanding of what the problems are and the best way to handle them.
Sample Direct Examination of Treating Neurologist (Fibromyalgia)
§6:30 Background Training and Experience
Q. Please state your name.
Q. What is your occupation?
Q. Can you explain to us what a neurologist is?
Q. Would you share with us your educational background, beginning with college?
Q. Where did you do your residency in neurology?
Q. Are you board certified in neurology and psychology?
Q. Can you explain to us what board certification means?
Q. Do you belong to any professional organizations?
Q. Which ones?
Q. Have you published any articles in the medical field?
Q. What were they about?
Q. Have you spoken at seminars?
Q. How often?
Q. What about?
Q. Do you have hospital privileges?
Q. At which hospital?
Q. Where is your private practice located?
Q. How many years have you been treating people with neurologic problems?
§6:31 Client’s Initial Office Visit
Q. Is Carol Comesy a patient of yours?
Q. When did you first see her?
Q. What were her health problems?
Q. At that time did you take a history?
Q. Would you share that history with us?
Q. After completing the history, did you do a physical exam?
Q. Was your physical exam helpful in diagnosing Carol’s problem?
Q. What were the significant physical findings?
Q. Doctor, after taking her history, listening to her complaints and doing a physical examination, did you have some early thought on what her problems were?
Q. What were they?
§6:32 Fibromyalgia Explained
Q. Doctor, what is fibromyalgia?
Q. Is it a clinical diagnosis recognized by the American Medical Association, the National Institute of Health, the World Health Organization, and the AmericanCollege of Rheumatology?
Q. Is it a syndrome composed of specific signs and symptoms?
Q. What are the signs and symptoms a doctor looks for to determine if a person has fibromyalgia?
Q. Focusing for the moment on Carol’s history, what was it that led you to believe that she might be suffering from fibromyalgia?
Q. Why was the fact that she had been in an auto crash on May 3, 2001, significant?
Q. Did it surprise you that she had seen four other doctors in different specialties before being referred to you?
Q. Is it common for people suffering from fibromyalgia to be misdiagnosed initially?
Q. What percentage of patients who are finally diagnosed with fibromyalgia are initially misdiagnosed?
Q. Carol described her pain to you as being burning and aching with constant soreness. Is this typical of a person with fibromyalgia?
Q. She also told you that she felt like she was bruised all over. Is this a common description from people who suffer with this problem?
Q. Since the auto crash, Carol’s pain has been constant, but the location changes and the intensity varies. Is this unusual for a person suffering from fibromyalgia?
Q. Is the fact that her pain is described as global and not focused in any one area important in your diagnosis?
Q. How important was her description of always being fatigued and tired to your determination that she was suffering from fibromyalgia?
§6:33 Diagnosing Fibromyalgia—Physical Exam
Q. After reviewing her history carefully, did you suspect fibromyalgia before you began your physical examination?
Q. Is there a specific way that a doctor, through his physical examination, can diagnose fibromyalgia?
Q. What are trigger points?
Q. How do you determine whether a trigger point is tender?
Q. How many specific trigger points did you examine?
Q. How many of these did you determine were tender upon digital palpitation?
Q. How many trigger points must be painful before a doctor feels comfortable in making a diagnosis of fibromyalgia?
Q. Over what period of time must this pain have existed?
Q. So what you telling us, Doctor, is that on physical examination you looked at 18 specific areas of Carol’s body to determine if she had pain when you touched those areas?
Q. The results of your examination were that she had 12 trigger points mostly in the neck, arms and chest area?
Q. Since she had this pain constantly since the auto crash, you felt she fit the diagnostic criteria of a patient who has fibromyalgia?
§6:34 Test Used to Confirm Diagnosis of Fibromyalgia
Q. Doctor, did you do any labs or other types of studies to confirm your diagnosis of fibromyalgia?
Q. What was the purpose of determining the serotonin levels?
Q. Were her serotonin levels high or low?
Q. Is the fact that she has low serotonin levels further confirmation of your initial diagnosis of fibromyalgia?
Q. It is my understanding that you ordered a spinal tap? What was the purpose of this?
Q. Why was it important for you to determine what her substitute P and nerve growth factor were?
Q. Is the fact that the substitute P and nerve growth factor from Carol were four times greater than normal further proof that your diagnosis of fibromyalgia was correct?
Q. Carol has told us that she was hospitalized several nights for sleep studies. Did you order this?
Q. Is disruption in sleep a common complaint with people who suffer with fibromyalgia?
Q. Have you reviewed the sleep studies?
Q. What do they show?
Q. What is the significance of abnormal Alpha EEG waves?
Q. What is sleep apnea?
Q. What is sleep myoclonas?
Q. Can you explain to us what restless leg syndrome is?
Q. Does the fact that her EEG indicates that she is not experiencing deep restful sleep combined with your diagnosis of restless leg syndrome provide further evidence that she is suffering from fibromyalgia?
Q. Doctor, is there a definitive cure for fibromyalgia?
Q. How do you treat it?
Q. Can you share with us how you have tried to help Carol with her fibromyalgia over the last year and a half?
Q. Why did you prescribe Celexa?
Q. How does Celexa affect serotonin levels?
Q. How does this help a patient with fibromyalgia?
Q. You have also prescribed Ambien, correct?
Q. Has Ambien helped her obtain more restful sleep?
Q. Reviewing your records, it appears that you gave her trigger point injections approximately eight times followed by physical therapy?
Q. How are you currently treating her problems?
Q. How often have you recommended she receive therapeutic massages?
Q. How does this help her?
Q. Have you recommended that she do anything at home to improve her situation?
Q. How will stretching twice a day help?
Q. What type of aerobic exercises have you recommended?
Q. Is there research that shows that walking and using stationary bikes help people with fibromyalgia?
Q. Do we know why?
§6:36 Causation and Permanency
Q. Doctor, do you have an opinion within reasonable medical probability as to whether or not the auto crash of May 3, 2001, caused Carol’s fibromyalgia?
Q. Can you share with us the basis of your opinion?
Q. Do you have an opinion within reasonable medical probability as to whether or not Carol Comesy has suffered a permanent injury as a result of the auto crash of May 3, 2001?
Q. What is that opinion?
Q. Have you assigned a permanent disability rating to Carol related to the injuries that were caused by the auto crash?
Q. What is it?
Q. How did you make this determination?
Q. So it is your opinion, Doctor, that Carol will suffer the symptomatology associated with fibromyalgia as a result of the auto crash for the rest of her life?
§6:37 Past Medical Expenses
Q. Would you review Plaintiff’s Exhibit #1 with the heading “Medical Bills” for me, please?
Q. Doctor, do you have an opinion within reasonable medical probability as to whether or not the medical expenses shown on Plaintiff’s Exhibit #1 were incurred by Carol as a result of the auto crash of May 3, 2001?
Q. What is that opinion?
Q. Doctor, is it fair to say that but for the auto crash of May 3, 2001, Carol would not have incurred these expenses?
Q. Doctor, are you familiar with what physicians and hospitals routinely charge in our area for the types of services shown in Exhibit #1?
Q. Doctor, do you have an opinion within reasonable medical probability as to whether or not the charges listed are reasonable for the services rendered in our area?
Q. What is your opinion?
§6:38 Future Medical Needs and Expenses
Q. Doctor, do you have an opinion within reasonable medical probability as to whether Carol will incur future medical expenses related to her condition?
Q. What type of treatment can we expect her to need in the future?
Q. How often should she receive therapeutic massages?
Q. Do you anticipate she will need these for the rest of her life?
Q. How much does each session cost?
Q. You currently have her take Celexa and Ambien?
Q. Will she need these medications for the rest of her life?
Q. Can you estimate for us the current yearly cost for each medication?
Q. Do you believe that she will periodically need trigger point injections with lidocaine followed by aggressive physical therapy?
Q. How often do you think she will need these?
Q. Can you share with us the cost of trigger point injections?
Q. How many sessions of PT following each injection do you usually recommend?
Q. What do they cost?
Q. Is it your opinion within reasonable medical probability that but for the auto crash of May 3, 2001, Carol would not need these treatments nor incur these expenses in the future?
§6:39 Past Lost Wages
Q. Doctor, do you know what Carol Comesy does for a living?
Q. How long has she worked as a cashier at Wal-Mart?
Q. Do you have an opinion within reasonable medical probability as to whether or not Carol missed any work immediately after the auto crash because of her injury?
Q. What is your opinion?
Q. When she returned to work, was she able to go back full time?
Q. Why not?
Q. Doctor, it has now been over three years since the auto crash. Has Carol shared with you how many hours a week she has worked?
Q. Why can’t she work full time?
Q. Doctor, is it fair to say within reasonable medical probability that but for the auto crash of May 3, 2001, she would not have missed this time from work?
§6:40 Future Inability to Earn Income
Q. Doctor, do you believe that Carol will ever be able to work more than 25 hours a week?
Q. Why not?
Q. How old is Carol?
Q. Do you have an opinion within reasonable medical probability as to whether or not she will be able to continue to work 25 hours each week until she reaches 65?
Q. Why not?
Q. What do you expect to happen to her ability to earn income in the future?
Q. When would you expect her to decrease her work to approximately ten or 15 hours a week?
Q. When do you expect her to have to totally stop working?
Q. Are all your opinions concerning her ability to earn income in the future held within reasonable medical probability?
§6:41 Current Problems
Q. What problems is Carol experiencing now as a result of the auto crash?
Q. How does her inability to get a full night’s sleep affect her life?
Q. Why is she always so tired?
Q. How often does she currently experience aching throughout her body?
Q. Can you explain why she has more pain and stiffness in the morning?
Q. Doctor, Carol has told us that when she gets home from work she is exhausted and must lie down for an hour. Is this consistent with fibromyalgia?
Q. She also tells us that she used to bowl in a league, but since the auto crash has had to give it up because of pain and fatigue. Is this related to her fibromyalgia?
Q. Doctor, since the accident, Carol has been diagnosed with irritable bowl syndrome. How is this connected to her fibromyalgia?
Q. Carol has also reported suffering from chronic headaches. Is this consistent with the injuries she received from the auto crash?
§6:42 The Future
Q. Doctor, do you expect Carol’s condition will ever improve?
Q. Do you believe that her problems related to her fibromyalgia will get worse in the future?
Q. If they do get worse, what will you or other physicians be able to do to help her with those problems?
Q. Will Carol’s life ever be like it was before the auto crash?
Q. How will it be different?
No further questions.
Cross-Examination of Defense Neurologist
§6:50 Review CME Report
The quality of your cross-examination of the defense neurologist will be proportional to the time and effort you have put in preparing for it. My approach is to begin with a dissection of the neurologist’s compulsory medical examination report. I first review it to determine whether all positive points contained in the four corners of the document can be used at trial. The focus here is to identify facts contained in the history that help support my theory of negligence and any other positive findings noted by the doctor.
§6:51 Review Deposition Transcript
Next, I tear apart the deposition of the defense neurologist. Again, I’m looking for anything that positively impacts on my case from a liability or damage standpoint. In structuring my questions for the doctor, I try to use the exact words she did in answering my questions at deposition. That gives the doctor less wiggle room when responding to me at trial. Defense neurologists are usually well prepared. The neurologist will read her deposition shortly before taking the stand. When the doctor hears her own words contained in the question itself, she realizes it and usually simply agrees with the points I’m trying to make.
In reviewing the deposition, I work from the court reporter’s transcript. I keep a lookout for potential video clips to use in cross-examination at trial. With today’s computer programs such as Power Point, you have the ability with the right technical setup to instantaneously playback any portion of the doctor’s testimony. If it is loaded in your computer or copied on a DVD so that you have easy and instantaneous access to it, this can be a very effective cross-examination tool.
§6:52 Review Doctor’s Testimony and CMEs in Previous Lawsuits
The next step is to turn to the information you obtained in expert interrogatories or through subpoena duces tecum regarding all the cases in which the neurologist testified in deposition or trial in the three years before your case. Take the time necessary to contact the plaintiff’s attorneys in these cases. Get copies of the compulsory medical examinations. Get copies of the transcripts. Look especially for cases with injuries similar to yours. This is very time-consuming work but can lead to some of your most effective cross-examination at trial. For instance, if the doctor has done 30 CMEs for insurance companies and other defense lawyers in the three years before your case and has never found a permanent injury, you can ask at trial whether the doctor has ever done a compulsory medical examination where he found something wrong with the patient caused by an auto crash or fall. When the doctor suggests that he has, you can lay out all 30 CME reports in front of him in dramatic fashion and ask the doctor to pick out the ones reporting a permanent injury. When the doctor cannot, the point will be made.
If you take the time to get the compulsory medical examinations in other cases, you will also find that the doctor’s wording is almost identical in each one. In fact some of these doctors actually have a computer template that they use instead of dictating separate findings on each new compulsory medical examination. When you find ten CMEs with identical language and point that out to a jury, it is quite effective.
When reviewing previous cases in which the doctor has testified, be on the lookout for ones where he was actually the treating neurologist. We sometimes forget that even the most defense-oriented doctors primarily make their money by actually treating patients. If the doctor has treated auto accident victims in the past, he may have given very plaintiff-oriented testimony at trial in those cases. Showing the jury a case in which the doctor as the treating physician testified that a patient with symptoms and a history identical to your client’s had permanent injuries can again underline the bias of the doctor’s approach when hired by the defense.
§6:53 Review Video of Compulsory Medical Examination
Next, read the transcript and review the videotape of the compulsory medical examination. See if the doctor said something offhand that might be used to your advantage at trial. Look carefully at the videotape to see if the doctor’s report accurately reflects what happened that day. If you find glaring contrasts, be prepared to underline them at trial.
§6:54 Visit the Doctor’s Website
Finally, don’t forget to do an Internet search on your doctor. I’ve had discussions with other attorneys who have actually found that doctors pad their curriculum vitaes online. If you can show, for instance, that the doctor claims to be board certified and is not, his whole credibility collapses. Further, since doctors rarely put together their own websites nor even actually read them, you may find material there that actually helps you. You then during cross-examination ask the doctor if his office ever provides erroneous or false information to patients concerning neurologic or other medical problems. The doctor will normally take the bait and say no. Then, ask the doctor if he agrees with various statements you have found on the doctor’s website that support your theory of the case. If the doctor fails to agree, you then point out to him that the information came from the doctor’s own website.
§6:60 Begin by Underlining Points of Agreement
Always begin your cross-examination on a positive note by underlining the points that everyone agrees on. It is an unusual case where the CME neurologist will not agree on the basic facts of the auto crash or fall and on the subsequent treatment your client has received. The doctor also will be smart enough not to disagree with anything found in her own written report or deposition.
You begin with the positive because you do not want to attack the doctor’s credibility until you have established the points on which you agree. Once this is done, you then need to focus on the crucial issues of the case.
§6:61 Move on to Crucial Issues
Those issues are always the same. Was your client injured in the auto crash and are your client’s current problems related to it? It is really that simple.
Although most testifying neurologists know that they are hired guns, they usually will admit to general facts that can be used effectively at the end of trial in your closing argument. Most will agree that they are specialists in treating injuries and diseases of the nerves and this was the focus of their examination. This allows you to argue at closing that your client’s injuries involved muscles and ligaments, not nerves. Therefore, the specialty of the doctor chosen by the defense to examine your client was wrong. They might as well have chosen a gynecologist since your client does not have those types of problems either.
Most will admit that the American Medical Association Guide to Permanent Disability does assign a permanency rating for continuing complaints of pain over a six-month period. Most will also agree that a permanent rating is appropriate when there is limitation in motion for a significant period of time after an injury. They usually also will agree that auto crashes can cause the type of injuries your client is claiming and that doctors can disagree on their diagnosis and treatment of specific neurological problems. Finally, most will admit that they have treated people who have had injuries similar to your client’s who did not get better even years after an auto crash.
§6:62 Show Limited Nature of CME
The next fertile area of cross-examination is showing the limited nature of the doctor’s exam. Your treating physician will have seen your client on multiple occasions over several years. The CME neurologist will have seen him once for about fifteen minutes. During cross-examination just ask the doctor how much time he actually spent with your client. Wait until closing argument to point out to the jury that your doctor spent far more time with the plaintiff and so is in a better position to determine the plaintiff’s injuries.
§6:63 Fun With Numbers
I usually finish my cross-examination with a section I like to call “fun with numbers.” This is where you lay out for a jury how often this doctor does compulsory medical examinations and what he makes from them. Fortunately for us, doctors usually answer one question at a time without thinking about the long-term consequences of what they have just said. For instance, it is not unusual for a compulsory medical examiner to estimate that she does approximately two examinations a week and charges $500.00 each for them. The doctor will usually admit to having her deposition taken 20 times a year at a cost of $1500.00 per deposition and her trial testimony five times a year at approximately $3000.00 an appearance. The doctor will then in the next breath tell you that this work is less than 5% of her total income. When you do the math, it doesn’t match up and a jury usually sees that.
§6:64 A Final Thought
In cross-examining the defense neurologist below, you’ll notice that I asked her very few questions concerning her opinion as to whether my client had a real problem. Many lawyers feel a compulsion to repeat negative opinions expressed during direct examination. There is no need to do this. Accentuate the positive and sit down. Always remember, the defense neurologist is not there to help you, but to hurt you. A great cross-examination of a compulsory medical examiner takes many hours to prepare but only minutes to execute.
Sample Cross-Examination of Defense Neurologist (Reflex Sympathetic Dystrophy)
§6:70 Agreed Historical Facts
Q. Doctor, when you examined my client Maria Lopez, you began by taking a history, didn’t you?
Q. She told you that on August 5, 2003, she fell while walking her dog on a sidewalk in Naples?
Q. She indicated that her fall was caused by a section of the sidewalk which had been elevated by a tree root, didn’t she?
Q. She further told you that although several similar defects in the sidewalk had been marked with yellow paint by the City of Naples, this area had not been?
Q. Doctor, how did she describe her fall?
Q. So the elevated section of the sidewalk caused her to fall forward?
Q. When she did, she tried to catch herself with her left hand, didn’t she Doctor?
Q. Doctor, it’s true that she immediately felt pain in her left wrist when she hit the ground, isn’t it?
Q. And it’s also true that she was taken from the site of the fall by ambulance to NaplesHospital?
§6:71 Initial Medical Treatment
Q. Now, Doctor, at Naples Hospitalthey did an X-ray of the left wrist, didn’t they?
Q. That X-ray showed a non-displaced Colles’ fracture of her wrist?
Q. Doctor, did you review this X-ray yourself?
Q. Doctor, this is a positive print of that X-ray. Do you recognize it?
Q. Does it show a Colles’ fracture?
Q. What is a Colles’ fracture?
Q. Can you show us where the wrist fracture is?
§6:72 Agreement on Causation
Q. Doctor, you agree that Maria Lopez broke her left wrist when she fell on the sidewalk in Naples, Florida, on August 5, 2003?
Q. It is also true, isn’t it, Doctor, that but for this fall she would not have broken her left wrist and needed treatment for it?
§6:73 Initial Treatment by Orthopedist
Q. After X-rays were taken at Naples Hospital, what did the emergency room doctor do?
Q. Who is Dr. Rick Gannon?
Q. What is his specialty?
Q. Is an orthopedic surgeon the type of doctor who usually treats a broken wrist?
Q. Did Dr. Rick Gannon agree that Maria Lopez had a non-displaced fracture of her left wrist?
Q. How did he treat it?
Q. Do you agree that casting this non-displaced fracture was the right thing to do?
Q. After her wrist was cast, Maria Lopez was told by Dr. Gannon to return to his office in four weeks unless she had problems, correct?
§6:74 Initial Signs of Reflex Sympathetic Dystrophy
Q. But Doctor, Maria did have problems before her first office visit with Dr. Gannon, didn’t she?
Q. Approximately two weeks after her fall she started experiencing extreme burning pain in the area of her wrist and up her arm to her elbow, isn’t that right?
Q. She also experienced shooting and stabbing pains on occasion?
Q. About three days after this began, she started having tingling in her fingers, didn’t she, Doctor?
Q. At that point she called her orthopedist, Dr. Rick Gannon, and he told her to come into his office immediately?
Q. What did Dr. Gannon do?
Q. Why did he remove the cast?
Q. Doctor, do you agree that when the cast was removed, Dr. Gannon discovered localized swelling in her wrist?
Q. He also described the area in and around the fracture as cold, blue and extremely dry, didn’t he?
Q. In his report, he describes the area as being hypersensitive to touch and movement of the wrist being extremely stiff, doesn’t he?
Q. Now, at that time, Dr. Rick Gannon believed Maria’s problems were the result of her cast having been too tight, didn’t he?
Q. So he did not recast her but instead put her in a sling and asked her to return in two weeks?
Q. When Dr. Gannon examined Maria’s wrist two weeks later, he found that she was still hypersensitive to touch, didn’t he?
Q. At this time she had virtually lost all movement in the wrist, hadn’t she?
Q. He described her skin from her fingertips up to her elbow as being shiny and dry, correct?
Q. He also noted that the area of hypersensitivity was no longer limited to just the hand and wrist, but had extended up the arm, isn’t that right?
Q. Now, Doctor, you’ve had an opportunity to review Dr. Gannon’s medical records, haven’t you?
Q. Can you share with us what he thought was causing Maria’s problems at that time?
Q. So it was actually the orthopedic surgeon, Dr. Gannon, and not Maria’s treating neurologist, who first suspected that she might be suffering from reflex sympathetic dystrophy?
§6:75 Facts Concerning Reflex Sympathetic Dystrophy That Defense Neurologists Can Agree On
Q. Doctor, do you agree with me that reflex sympathetic dystrophy is often called RSD in the medical community?
Q. It is a pain syndrome recognized by the American Medical Association, isn’t it?
Q. Doctor, will you agree with me that RSD has been found to occur in about 5% of all traumatic injuries to the limbs?
Q. Will you further agree that RSD spreads in 70% of the patients who are diagnosed with it?
Q. Doctor, have you ever studied or read any literature on reflex sympathetic dystrophy?
Q. Then you know that even minor injuries, such as a sprain and strains, are frequently the cause of RSD?
Q. You also know that it is not unusual for the symptoms to begin weeks later?
Q. The medical community also recognizes that casting and immobilization can actually make RSD worse?
Q. It’s true, isn’t it, Doctor, that the pain experienced by RSD patients is usually different from the original pain sensation caused by their injuries?
Q. RSD pain is often described by victims as burning, throbbing, aching, shooting, stabbing and tingling?
Q. Doctor, do you agree that RSD is a clinical diagnosis and must be primarily based on history and examination?
Q. The usual clinical findings for RSD include extreme pain in the arm or legs, sensory changes, abnormal skin temperatures, edema and abnormal skin coloration, and alodynea, isn’t that true?
Q. Doctor, what is alodynea?
Q. Doctor, do you agree with me that a neurologist is an appropriate medical specialist for diagnosing and treating RSD?
§6:76 Initial Treatment by Maria’s Neurologist, Dr. Jerry Schwartz
Q. Once Dr. Gannon suspected reflex sympathetic dystrophy, he referred her to a neurologist by the name of Dr. Jerry Schwartz, didn’t he?
Q. In his initial examination on October 22, 2003, Dr. Schwartz noted the same physical findings as Dr. Gannon?
Q. In his report, he noted extreme pain in her right wrist and arm with burning, throbbing, shooting and stabbing pain from the elbow to the fingers, isn’t that true?
Q. After his initial examination, Dr. Schwartz, like Dr. Gannon, suspected that Maria had reflex sympathetic dystrophy, didn’t he?
Q. At that time he ordered a thermogram?
Q. That thermogram showed abnormalities in the skin temperature of her left hand, wrist and arm when compared to her right side, didn’t it?
Q. Doctor Schwartz began treating her by doing sympathetic nerve blocks?
Q. He reported that after each of the three nerve blocks that he conducted, she did have relief of pain for short periods of time, isn’t that correct?
Q. Doctor Schwartz also ordered physical therapy to be done immediately after each nerve block, didn’t he?
Q. Following the physical therapy, there was improvement in skin color, skin tone, and Maria’s range of motion, wasn’t there?
Q. But after six months of treatment, she still suffered from extreme pain in her left arm and was unable to use it in a normal fashion, isn’t that true?
Q. Now, Doctor, it has been almost nine months since Maria’s fall, correct?
Q. Recently Dr. Schwartz ordered a bone scan which demonstrated initial signs of osteoporosis?
Q. Doctor, you will agree that the development of osteoporosis is associated with RSD?
§6:77 The CME Neurologist Report
Q. Doctor, in your compulsory medical examination report, you have suggested that all of Maria’s problems now are psychological?
Q. Would you agree with me, Doctor, that if a person is in constant pain, that can lead to clinical depression?
Q. Would you also agree that the literature on reflex sympathetic dystrophy suggests that many of the patients do need psychological counseling as a result of being in unrelenting pain?
Q. Doctor, you have also suggested that any RSD symptoms she has will eventually go away?
Q. Can you refer us to even one clinical study that suggests that RSD burns itself out over time?
§6:78 CME Video
Q. Doctor, in your compulsory medical examination report, you suggested that Maria had full range of motion of her left hand, wrist and arm when you examined her?
Q. Doctor, would you watch with us this excerpt from the video of that examination?
Q. Doctor, would you agree with me that the video shows that she was able to move her right arm, hand, and wrist to a greater extent than her left?
Q. Will you also agree with me that on her own, she had very limited use of the left hand and arm?
Q. Doesn’t the video show that when you forced her arm, hand and wrist into positions that she could not do on her own, it caused her pain?
§6:79 Limited Nature of the CME Examination
Q. Doctor, how many times have you seen my client Maria?
Q. Was there a court reporter there during your examination?
Q. Have you read the transcript she took?
Q. Did you note anything that was inaccurate about it?
Q. Doctor, I am handing you a transcript of the CME examination. Would you look at it carefully?
Q. Is this the same one you reviewed?
Q. Would you turn to Page 2 of the transcript and read for us the time your examination began?
Q. So your examination began at 2:35 p.m., is that correct?
Q. Will you read for us the time your examination ended?
Q. So it ended at 2:49 p.m.?
Q. Doctor, can we agree that your examination of Maria only took 14 minutes?
Q. You had never seen her before this examination, correct?
Q. And you don’t anticipate ever seeing her again, do you?
Q. You knew when you were doing this examination that you were not treating Maria, isn’t that correct?
Q. You knew from the start that the only purpose for you seeing her was to determine what her injuries were and to testify on behalf of the defendant in this case?
Q. Neither the defendant nor his attorney ever asked you for your thoughts on how Maria’s situation could be improved?
Q. Nor did you approach your examination with that in mind?
§6:80 Economics of Compulsory Medical Examination
Q. Now, Doctor, you charged $1000.00 for your 14-minute exam, reviewing Maria’s medical records and generating a report, isn’t that true?
Q. When I took your deposition in this case, you charged me another $1500.00 for that privilege?
Q. Is it fair to say that you are charging the defense attorney $2500.00 for your appearance in court today?
Q. So from this case, you’ve earned $5000.00?
Q. Doctor, do you recall me asking if you had ever done an examination for this defense attorney or his law firm before?
Q. Do you recall telling me that on average you do five a year?
Q. So if each of these cases went to trial, that would be $25,000.00 a year?
Q. Do you also recall telling me that you have been doing compulsory medical examinations for this law firm for over ten years?
Q. So, Doctor, you would agree with me that you could have made as much as $250,000.00 from this law firm in the last ten years just from doing compulsory medical examinations?
Q. Doctor, this isn’t the only law firm which hires you to do these types of examinations?
Q. You do them for many other law firms and insurance companies, too, don’t you?
Q. In fact, you have told me in the past that you average approximately 50 exams like this a year?
Q. Again, assuming they all went to deposition and trial, that would be $250,000.00 a year from just doing compulsory medical examinations, wouldn’t it, Doctor?
Q. Doctor, do you belong to the Sunshine Neurology Group?
Q. Does that group have a website that provides valuable medical information to the public?
Q. Do either you or your partners ever put information on your website that you know is wrong?
Q. To the best of your knowledge, is all the information on your website accurate?
Q. Doctor, on your website, the group states that one of the conditions they treat is reflex sympathetic dystrophy, correct?
Q. On your website, you state that reflex sympathetic dystrophy is a real problem that can cause serious disability to a patient and her family, don’t you?
Q. You also say, Doctor, that even with aggressive treatment it is a condition that may not get better over time?
No further questions.
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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.
By Leonard Bucklin
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