Cross-examination of the defense doctor who examined your client should be an ambush. Get in quickly, get out quickly, sit down, and shut up. Kim Hart shows you how in this excerpt from his book, Deposing and Examining Doctors. Prepare for cross-examinations by creating a one-page outline that can be scanned quickly to determine if all the major points have been covered before announcing to the court “no further questions.” It should include:
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. 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.
Positive aspects of CME report. Before attempting to cross-examine the defense doctor, dissect his written report. 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.
Inconsistencies between testimony and transcript or videotape. In 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. 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.
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. 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. Seventy percent 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 that might help, that gets plugged into my future damage argument. “Even their own doctor told you that he feels that my client would benefit from taking pain medication for the rest of his life.”
Records not reviewed by defense doctor. 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.
Economics of compulsory medical exams. 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.
Inconsistencies of prior testimony. In our community all the plaintiff’s attorneys 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.
Kim Patrick Hart handles serious injury and death cases at Burkert & Hart in Fort Myers, Florida. He has represented people involved in auto crashes, fall downs, and medical malpractice for more than 30 years. A board certified civil trial lawyer, he has an AV rating from Martindale-Hubbell. His book, Deposing and Examining Doctors, features hundreds of pattern questions, dozens of outlines, and over 80 four-color medical illustrations suitable for enlargement.