Here are tactics, questions, arguments, and forms from a lawyer who has made a specialty out of deposing defense doctors for other attorneys. They will enable you to reveal dishonesty, bias, over-reaching, and incompetence by defense doctors in multiple specialties.
Some defense doctors manipulate exams and spin the science. This book reveals the games DMEs play, and shows you proven techniques and questions for making juries angry at the misrepresentation.
Luckily, defense medical experts are predictable. Their defenses … especially the dishonest ones … are not particularly creative and can be readily dealt with once you learn how to recognize and counter them.
Dorothy Clay Sims details how in Exposing Deceptive Defense Doctors. She reveals the defense tactics, explains where they are vulnerable, provides citations to the underlying research, and then gives you the exact questions to use in depositions and trial examinations to exploit the weaknesses in DME testimony. Here are 5 examples:
1. Claims of exaggerating or malingering
Of all the specious and damaging claims a defense doctor can make, the allegation that your client is exaggerating or malingering is the most mean-spirited of all. Ms. Sims details the 30 different ways some DMEs use tests to portray your client in a negative light, including these 13 interpretation schemes:
- Claims Malingering Based on Test That Is Not a Malingering Test. §7:42.1
- Lies about Test Purpose. §7:42.2
- Using Wrong Tests. §7:42.3
- Claims Plaintiff Flunked When Scoring Manual Says She Passed. §7:42.4
- Selectively Reports Test Results. §7:42.5
- Concludes Malingering Even When Plaintiff Passed Most (or Even All) Malingering Tests. §7:42.6
- Fails to Provide Actual Percentages, But Refers to “Z” Scores or “T” Scores. §7:42.7
- Claims Pain Scales Are Actually Malingering Scales. §7:42.8
- Claims “Borderline Flunking” or “Borderline Passing. §7:42.9
- Ignores the “Retest” Effect. §7:42.10
- Ignores Treating Physician’s Diagnosis, Record of Treatment – Confirmatory Bias. §7:42.11
- Claims Normal IQ Means No Brain Damage or Psychiatric Diagnosis. §7:42.12
- Claims Normal Scales on Memory Tests Mean No Brain Injury or Psychiatric Problems. §7:42.13
2. Junk psychological defenses
Ms. Sims provides the 11 most common junk defenses to psychiatric or neuropsychiatric conditions, and a plan of attack for each of them.
- There Is Nothing Psychiatrically Wrong. §6:01
- Something Is Wrong, But It Was Not Caused by the Accident. §6:04
- Patient Has Axis II Disorder and Was Disturbed Before the Incident. §6:08
- Injury Was Too Mild to Cause Plaintiff’s Condition. §6:12
- Normal/High I.Q. = No Brain Damage or Psychiatric Condition. §6:15
- Normal Glasgow Coma Scale in Emergency Room = No Brain Damage. §6:18
- Normal MRI/CT Scan = No Injury. §6:21
- No Brain Damage; Plaintiff Has Unrelated Psychiatric Condition. §6:24
- Test Scores Too Variable to Mean Brain Damage. §6:27
- Test Results Don’t Fit Expected Pattern. §6:28
- Test Scores Are So Bad, They Can’t Be Real. §6:29
3. Common defense radiologist tactics
Radiology can be the most difficult specialty for lawyers to understand because it is not as intuitive as the different anatomical conditions. This leaves you vulnerable to DME claims such as:
- The Abnormality Does Not Exist. §16:10
- If It Does Exist, It Is Artifact. §16:11
- If It Does Exist and It Is Abnormal, It Pre-Existed the Accident. §16:12
- If It Does Exist and Is Caused By the Accident, It Shouldn’t Cause That Many Problems. §16:13
- There Is No Abnormality on This Slice. §16:14
- DME Finds the Abnormality but Says It’s Not Acute. §16:15
- Doctor Plays “Hide The Ball.” §16:16
4. Defense claims for spine/soft tissue/disc injuries
Back disorders will probably constitute the bulk of diagnoses in which you will be involved, so you are likely to frequently encounter spurious defense positions like:
- Your Client Does Not Have the Condition. §17:10.1
- Condition Pre-existed Event in Question. §17:10.2
- If Event Caused Condition, It is Not Permanent. §17:10.3
- Plaintiff is Exaggerating; Settlement Money Will Cure All. §17:10.4
- Condition is Mild; Plaintiff Should Be Able to Work. §17:10.5
- Plaintiff’s Other Problems Would Have Led to Him Not Working. §17:10.6
- Event Was Not Severe Enough To Cause Plaintiff’s Condition. §17:10.7
- Most People Have Herniated Discs, So An Abnormal MRI Is Meaningless. §17:10.8
5. Other common defense-doctor strategies
The more arrogant the doctor, the more likely you are to encounter over-reaching like:
- Claiming Exam Reflects Positive Signs of Condition, but Condition Is Not Cause of Plaintiff’s Symptoms. §15:10
- Claiming “Studies Show . . . .” §15:11
- Not Testing for Particular Condition; Ignoring Positive Signs of Condition. §15:12
- Claiming “Normal Range of Motion,” Without Properly Measuring Range of Motion. §15:13
- Claiming Plaintiff’s Condition Is Just a “Soft Tissue” Injury. §15:14
- Claiming Plaintiff Had “No Spasms” but Not Gowning Plaintiff. §15:15
- Claiming Condition Predated Injury, but Was Asymptomatic. §15:16
- Claiming Malingering, but Ignoring Tests Administered by Your Psychologists. §15:17
- Deferring Only to Other Defense Doctors. §15:18
- Claiming Prior Neurological Testing is Defective. §15:19
- Claiming Condition Not Related to Accident. §15:20
8 practice tips from just one chapter
1. Neutralize the doctor. “If you can’t convert the doctor, your next step is to neutralize him. Get him to defer to a specialist or to agree that he doesn’t have an opinion on your topic. How do you do this?:
- Ask him questions in a way he won’t want to answer. For example, instead of asking “Doctor, did you form an opinion as to my client’s restrictions,” say, “Doctor, if you’ve formed opinions on my client’s restrictions, we are going to go through them, starting with how many pounds my client can lift from waist level away from the body.” This lets him know you are going to ask tedious and specific questions about his opinions, which he won’t want to answer because he knows much of his opinion is just an estimation. Then, before he answers say, “Or can we just defer to the functional capacities evaluation?” This technique works especially well with surgeons and very busy doctors who hate lawyers….” §3:24
2. When the DME makes a mistake. “This technique can be broken down in 3 scenarios. For the first one, let’s assume you have a situation in which the doctor’s report fails to mention significant facts or test results. It’s possible the defense never told the doctor or provided him with the records. Therefore, you never ask the doctor to state his conclusions in the beginning of the deposition. This method is counterintuitive to most lawyers. However, when you ask doctors to give their conclusions, they have a tendency to become wedded to them, in spite of facts to the contrary. Therefore, don’t even ask. Instead, ask the doctor if he’s aware of the facts that are not in his report which support your conclusion. State those facts — one at a time. Then, when he realizes that the defense didn’t give him all the material, or that you are prepared and he will look like a fool if he stays wedded to the opinion set forth in his report, he’ll look for a way to wiggle out. Give him one. For example….” §3:27
3. Focus on the record. “When asking the doctor about the examination and findings, I don’t ask him what he examined or what he found. Instead, I ask him what his records reflect he examined and/or found. I have the doctor identify each test he conducted, and ask him to show me where in his report he documented the results. There is a huge difference between an exam that documents the tests conducted and a doctor who claims “I didn’t document the test, but I remember doing it and remember it was normal.” That kind of response should be met with something like the following….” §3:41
4. Obnoxious doctors. “Consider subpoenaing the DME to trial as an adverse witness. Defense attorneys often believe they can cure the problem of an obnoxious witness by not calling him at trial. You can fix that by calling him yourself. This is dangerous, but it can work. When you cross-notice an obnoxious DME – one whom the defense knows will upset the jury, possibly resulting in a bigger verdict for the plaintiff — the defense may be much more inclined to settle. A number of my cases have been settled within minutes of a really bad DME receiving a subpoena to appear at trial.” §3:50
5. Failure to produce documents. “In most cases, the DME will not bring a single journal article or other published source to support his conclusions. Instead, he may punt to his “years and years of experience.” Keep in mind that “years and years of experience” do not trump hard science set forth in peer-reviewed journals. If the doctor has engaged in 25 years of bad medicine, that doesn’t prove a thing. Start off with the assumption that the doctor must prove to you his conclusions are based in science, not “experience.” Use these questions….” §3:65
6. The DME’s weakest link. “You can and should demand that the doctor prove to you that the test itself is valid and scientific, and that the manner in which the doctor administered and interpreted the test is valid and scientific. This is sometimes very difficult for defense experts to do. Most of them use no standards to conduct an examination or reach a conclusion because then they might occasionally have to opine that someone really is injured. The best way to prove this is to demand the test administration and interpretation manual for every single thing the doctor claims is a “test” or “partial test.” If it’s truly a test, then somebody somewhere published a manual on how to give it and how to interpret it. Ask these questions….” §3:66
7. Reveal professional-courtesy practice. “If the doctor claims to keep his files at home, it usually means he doesn’t have a real medical practice and only rents space in another doctor’s office when he does exams for the insurance company. He will claim, however, that he has an active practice. In that case, ask him if he engages in “professional courtesy,” meaning the doctor treats other doctors or friends for free (e.g., he takes a look at his golf buddy’s sore elbow). This may violate federal law and is not the same as having an active practice.” §3:06
8. Have an expert listen in. “Your expert can be present by phone and instant message you privately. I do this in many depositions. Why? Because I don’t know the medicine. You will find great comfort in having someone who does know the medicine online, listening to the DME testify and instant messaging you when the doctor is mistaken, lying, or putting a “spin” on the medicine. Prepare for a fight. When the defense doctor realizes another doctor will be on the line, he is likely to get really nasty. Defense attorneys become outraged. Typically, the defense attorney will tell me I can’t do this because the rules don’t permit it and it’s too disruptive. I respond by saying….” §3:21
The author will donate a portion of her proceeds from book sales to the International Federation for Human Rights.
REVISION 7 HIGHLIGHTS
The new edition of Exposing Deceptive Defense Doctors overflows with new text, practice tips, strategic advice, forms and appendices. The highlights include new or expanded coverage of a broad range of topics, including: :
What to Do Before and After the Defense Medical Exam
- New! Appendix: Analysis of Defense Doctor’s Physical Examination, covers 13 areas of examination and includes tips for comparing the video of the exam to the DME’s report.
- New! Form: Stipulation Authorizing Defense Neuropsychological Exam.
What to Do Before, During, and After the Deposition
- How to read, understand and analyze EMT records; and questions to ask on cross.
- New!Appendix: Top Background Research Strategies for Exposing Misrepresented Credentials
Cross-Examining Psychologists, Neuropsychologists, & Psychiatrists
- How/why to videotape neuropsychological testing.
- How/why to question the psychometrist who administered the tests.
New Chapter! Bias In Neuropsychological Assessments
- The role of culture in neuropsychological assessments.
- Sexism in medicine and litigation.
- Microaggressions in testing, with tips to help your clients prepare for and deal with microaggressions.
- Cultural cues in interviews and testing, and how to address cultural cues at trial.
- Biased normative samples, including as related to gender-diverse clients; race norms; and race-based adjustments in testing.
- Practical tips for combating soft science in the courtroom.
Cross-Examining Radiologists and Neuroradiologists
- How to use the MRI software “audit trail” to prove the DME is lying about reviewing the images.
- How software embedded in the MRI may alter the images by “smoothing,” and invalidate the DME’s conclusions.
- Additional coverage of: MMPI-3; Dot Counting Test; PTSD Checklist; Rey Complex Figure Test; and Smell Identification Test.
ABBREVIATED TABLE OF CONTENTS
CHAPTER 1 DIAGNOSING THE DOCTOR
CHAPTER 2 WHAT TO DO BEFORE AND AFTER THE DEFENSE MEDICAL EXAM
CHAPTER 3 WHAT TO DO BEFORE, DURING, AND AFTER THE DEPOSITION
CHAPTER 4 CROSS-EXAMINATION AT TRIAL
CHAPTER 5 PSYCHOLOGICAL TESTS
CHAPTER 6 JUNK DEFENSES TO PSYCHIATRIC/NEUROPSYCHIATRIC CONDITIONS
CHAPTER 7 DEBUNKING CLAIMS OF EXAGGERATION AND MALINGERING
CHAPTER 8 CROSS-EXAMINATION AND DEPRESSION
CHAPTER 9 CROSS-EXAMINATION AND PTSD
CHAPTER 10 CROSS-EXAMINATION AND SOMATOFORM DISORDER
CHAPTER 11 CROSS-EXAMINATION AND TRAUMATIC BRAIN INJURY
CHAPTER 12 CROSS-EXAMINING THE PSYCHOLOGIST, NEUROPSYCHOLOGIST & PSYCHIATRIST
[CHAPTERS 13-14 RESERVED]
CHAPTER 15 CROSS-EXAMINING NEUROLOGISTS, ORTHOPEDISTS & PMR DOCTORS
CHAPTER 16 CROSS-EXAMINATION OF RADIOLOGISTS AND NEURORADIOLOGISTS
CHAPTER 17 SPINE/SOFT TISSUE/DISC INJURIES
CHAPTER 18 CROSS-EXAMINATION AND PAIN
CHAPTER 19 CROSS-EXAMINATION AND RSD/CRPS
CHAPTER 20 FUNCTIONAL CAPACITIES EVALUATION
CHAPTER 21 DEPOSING THE ERISA/LTD PHYSICIAN
CHAPTER 22 CROSS-EXAMINING CAUSATION EXPERTS
CHAPTER 23 UPPER EXTREMITY INJURIES
CHAPTER 24 LOWER EXTREMITY INJURIES
CHAPTER 25 CROSS-EXAMINING THE VOCATIONAL REHABILITATION EXPERT/LIFE-CARE PLANNER
[CHAPTER 26 RESERVED]
CHAPTER 27 TECHNOLOGY, OUTSOURCING AND CROSS-EXAMINATION IN THE PRACTICE OF LAW
ABOUT THE AUTHOR
Dorothy Clay Sims grew up in Owensboro, Kentucky and moved to Florida in high school. Upon graduation from the University of Florida, she decided to go into disability law, driven, in part, by the problems she saw her brother, afflicted with Down Syndrome, face as he negotiated a confusing and sometimes unforgiving world. She has one other brother who is a former judge and now practices law.
Dorothy and her husband have five children. Her hobbies include traveling to strange places that most people would pay not to go to and sailing. (Well, actually, she really only enjoys sitting on a sailboat while it’s tied to the dock, drinking red wine and reading trashy novels. Going out in the water still scares the Hell out of her.) Her hobbies also include making prayer flags. Dorothy is Buddhist by faith, but not a very good Buddhist because she drinks that red wine, doesn’t sit still well enough to meditate much, and caves in to the calling of the occasional cheeseburger.
Dorothy practiced workers’ compensation law and was the first woman to chair the Workers’ Compensation Section of the Florida Bar. She also practiced Social Security disability law for over 25 years. After seeing multiple abuses visited upon her clients by sketchy defense experts, she spent over a decade studying psychological tests, physical exams, anatomy and electrodiagnostic studies. Although she has no formal training in medicine or psychology, she has several thousand hours of time invested in learning how some defense-oriented medical experts (DMEs) manipulate the data. She has traveled throughout the U.S., meeting with the creators of various tests, and has undergone extensive psychological testing herself (which was really, really scary). Lawyers throughout the U.S. have requested her help in understanding how particular DMEs may have misrepresented facts in their cases. She has given over 200 lectures throughout the U.S. and various countries on medical/legal issues. She is retained by lawyers throughout the U.S. to cross-examine doctors.
Dorothy is also retained by lawyers to go to their offices and provide private seminars on issues involving:
- Cross-examination of medical and vocational experts.2.
- How to research DMEs and what to do with the research.
- How to research medical causation and disability issues; how to store the research; and how to interpret the articles.
- How to read DME reports and identify what was misrepresented or omitted; how to recognize patterns of deceit.
- How to conduct research instantly, in the middle of cross-examination.
- How to reduce overhead and use technology and the internet to maximize benefits to clients and reduce costs and workload for attorneys.
Lawyers have requested that Dorothy bring her lead paralegal to teach other paralegals how to perform background searches on doctors and analyze the information for the attorney, as well as how and where to store it; how to download software; and how to and arrange for depositions by video-phone.
Ms. Sims volunteers in pro bono cases in civil and criminal matters. She can be contacted via www.ocalaw.com.