The form that follows assumes that defense counsel hired a doctor to examine the plaintiff and testify at trial. This form is for the plaintiff’s attorney to use in preparing cross-examination questions to ask the defense doctor at the trial. (This is not intended to be a checklist for discovery depositions of the defense doctor).
Usually the professional qualifications of plaintiff and defense doctors are of equal weight. Indeed the defense, not being limited to doctors who have treated the plaintiff, often will have chosen an expert doctor with superior academic credentials. When the jurors are forced to choose (and defend their choice in the jury room) between two doctors with differing opinions, ordinarily an easy distinction to make is on the basis of qualifications.
The plaintiff’s attorney may point out by his or her cross-examination that the plaintiff’s doctors had the purpose of finding the real problems of their patient and the responsibility of making the patient well, but the defense doctor was “only a paid witness who did a short examination so he could testify for the defense.” This outline of questions starts with emphasizing that point of distinction.
In the below checklist, the plaintiff is referred to as “Millie Jones.” “D/A” refers to the actual date of the accident, e.g., January 13, 2010.
Plaintiff’s Cross-Examination of Defense Doctor’s Testimony
1. DEFENSE DOCTOR IS LESS THAN IMPARTIAL
Paid by Defense Attorney to appear and testify today?
Paid how many dollars to appear and testify today?
Is that a set amount for your testimony today or is that based on an hourly rate? Did you write a report to Defense Attorney?
How much did you charge for the report?
How many pages long was the report?
In addition to the amount you were paid to give the report before testimony, and the amount paid for being here today, how much more were you paid by Defense Attorney before you got here today?
So then what would be the total amount paid to you by Defense Attorney to make an examination for purposes of testimony, report to Defense Attorney, and then testify for Defense Attorney?
Is this the first time you have been hired by a Defense Attorney to examine a person, report to the Defense Attorney, and be available to testify?
When you were hired, Defense Attorney told you testimony was expected if this case went to trial?
How many other times have you testified in court or in depositions?
Do you advertise your services to make examinations and testify, or is it just word of mouth that Defense Attorney chose you to do this and be here today?
Not hired to treat Millie Jones or give her any medical advice?
In fact, did not treat Millie Jones or give her any medical advice?
No responsibility to treat Millie Jones or give her any medical advice?
In fact, you were careful not to treat Millie Jones?
You were careful not to give any medical advice to Millie Jones?
You were even careful not to send a report of your examination to the doctors who treat
Millie and are trying to help her recover from the auto crash?
Did you review medical records and find out that Millie Jones has had the benefit of the following doctors, and they had the responsibility to her to correctly treat and help her? [The plaintiff’s attorney will read off list of all names, naming their specialty — including those shown as consultants or specialists (e.g., every radiologist shown on hospital reports).]
If witness says he/she did not know that someone on the list had any involvement in Millie’s care:
Didn’t you review all of Millie’s medical records?
Did you pay attention to who the doctors were and what they said in the medical records?
Do you assume that all the doctors shown in the medical records were appropriate medical specialists and what they wrote in the medical records was correct?
Doctor, let’s call that list of doctors I read as “Millie’s doctors.”
Do you know any of Millie’s doctors personally?
Do you agree that Millie’s doctors, who you know personally, are experienced and good doctors?
Do you know that Doctors [names of plaintiff’s testifying doctors] have testified to this jury and expressed their opinions in this case?
How did you find out that they have testified and expressed their opinions?
Do you agree that Doctors [names of plaintiff’s testifying doctors] have specialties that take great training?
If any of plaintiff’s testifying doctors have different specialties than the witness, the plaintiff’s attorney will show the limits on the defense doctor’s qualifications, by asking:
“Dr. [__] is a specialist in [__]?”
“You are not a specialist in [__] are you?”
“Your training and education in the field of [__] was limited compared to Dr. [__]’s specialty training for his specialty, wasn’t it?”
So do you concede that Dr. [treating doctor in another specialty] is correct when he/she reported/testified that [favorable fact or opinion]?
2. EXAMINATION OF PLAINTIFF: LIMITED OPPORTUNITY TO OBSERVE
Examination of Millie was on date of ___________?
How long after auto crash in which Millie was injured?
That was the one and only time you saw Millie?
That one examination of Millie is now how old, how long ago?
Got history from Millie?
Got history from Medical Records?
If the plaintiff’s attorney knows that witness does not have certain medical records, he or she will ask if the witness has seen them? Would he or she have wanted to see them before testifying for Defense Attorney?
Have you read depositions or other legal papers in this case?
If yes: Is reading that sort of legal paper a part of your medical practice in treating your own patients? Or is it a part of your “exam and testify” line of business involved with your testifying here today?
The examination you made of Millie was limited to ____ minutes according to Millie. Do you agree that is the length of time you were in the examining room with her?
Do you agree that with a medical condition like Millie has there may be some days that are better than average for her, and some days that are worse than average for her?
Do you know whether during the few minutes you examined Millie she was experiencing a good day or a bad day?
Sometimes a patient is recovering well from an injury when the doctor sees him/her for the first time, and later the patient’s recovery slows down or stops and the patient doesn’t do so well, isn’t that a fair statement?
Sometimes the only way you can make a correct diagnosis or prognosis is to see the patient over a period of weeks or months or maybe even years?
Sometimes in later visits of the same patient, a doctor will observe a new or varying symptom or body movement, or see something that he/she missed on a previous patient visit, or a condition may be changing, or not changing the way the doctor expected it would, isn’t that true?
So you have to go along and watch the patient and see what happens over a period of weeks or months to make a more sure diagnoses or prognosis, don’t you?
You of course did not examine and talk with Millie in several visits spread out over a period of weeks or months, did you?
3. DIAGNOSIS AND STATEMENT OF THE TESTIMONIAL CONFLICT
Doctor, you are not testifying, are you, that Millie was not injured in any way in this auto crash?
So you agree, as I understand it, that Millie did suffer the following injuries?
So you concede that Millie has those injuries, and we all can agree upon the fact that those were injuries, and Millie suffered those injuries?
As I understand it, you say Millie did not suffer [__]?
As to Millie’s injury of [__], you agree she suffers from it, but you just don’t think it as bad as she and her treating doctors think it is?
Millie does have pain, doesn’t she?
You think she does not have as much pain as her treating doctors say she has?
Millie does have impairment of her body doesn’t she?
There IS SOME:
Effect of injury on body functions (Impairment)?
Effect of injury on daily living and work (Disability)?
Psychological or mental effect of the injury?
You think she does not have as much bodily impairment as her treating doctors say she has?
Would you agree that Millie’s treating doctors have seen her ____ times; and you have seen Millie only once for a total of ____ minutes?
You have already testified that when you saw Millie that day you did not know whether she was having a good day or a bad day, is that correct?
4. AGREES THAT FAVORABLE FACTS EXIST
Now let’s look at some of Millie’s medical records.
Do you agree with the item on Page ___ of medical record Exhibit __ that [plaintiff had a bruise; had spasms of neck; had pain medications, et cetera]?
5. INADEQUACIES OF DEFENSE DOCTOR’S RECORDS
[Here is the place the plaintiff’s attorney will point out anything that is missing or incorrect in the defense doctor’s records of the examination.]
6. PROXIMATE CAUSE OF PRESENT CONDITION
Cause of [conditions plaintiff has] was [or could be] from the impact on D/A?
Did Millie have any pre-existing condition(s) before D/A?
Was the pre-existing condition made better by the auto crash?
7. NOT INFALLIBLE
Doctor, have you had the occasion to make diagnoses in your career and then later change your first opinion?
Every doctor has occasion to change an opinion or diagnosis someplace in his/her career, isn’t that true?
You don’t claim to be infallible, do you?
You don’t claim to be infallible in all the opinions you have expressed here today, isn’t that a fair statement?
8. SUBJECTIVE VS. OBJECTIVE
[If the defense doctor has dismissed client’s complaints and pain as “subjective” or a “compensation neurosis” or other attempt to gain something by having pain, then the plaintiff’s attorney will use the items in this section.]
I suspect all of us have had the experience of having had some surgery or procedure and the doctor has prescribed pain pills to take home because the doctor expects that the patient will be hurting. Is it true that doctors know certain bodily conditions cause pain?
Earlier today, you agreed that Millie did suffer the following injuries?
Do doctors know that those types of injuries cause pain?
Injuries may exist even without objective evidence of injury, may they not?
You are not accusing Millie of deliberate conscious lying or malingering, are you?
What are “subjective symptoms?”
Are subjective symptoms important in medical and surgical treatment of patients?
It is true, isn’t it, that in diagnosing any injury, the subjective symptoms are a necessary part of the diagnoses?
I assume your patients complain of pain, at times, to you. Is that assumption correct?
Those pain complaints are subjective, are they not?
I assume you have prescribed medication for their pain based upon their subjective complaints. Is that a correct assumption?
Some patients do not want pain killers, isn’t that right?
So the pain killers a person takes depends upon what the doctor prescribes, upon the person’s own individual tolerance for pain, and upon the person’s own feelings about taking narcotics or other pain killers?
9. RETURN TO WORK DOES NOT MEAN IMPAIRMENT OR PAIN ENDED
Were you told that Millie had worked steadily and had lost no significant time from work before the auto crash?
Millie’s returning to work and continuing to work since the auto crash could be an attempt on her part to adjust to her problem, or because of economic need, isn’t that true?
Would you agree that some people can and do force themselves to work and engage in activity in spite of pain and discomfort?
10. PLAINTIFF’S ATTORNEY WILL DEVELOP A PORTION OF HIS OR HER OWN CASE THAT DEFENSE DOCTOR AGREES WITH
[Here is the place where the plaintiff’s attorney will ask about any item on which the treating doctor has reported or testified, and that the defense doctor agrees with. The item can be outside the direct testimony area of the defense doctor.]
A medical prognosis is an opinion on what will happen to a patient in the future, isn’t it?
You don’t claim to be infallible in any prognosis you gave regarding Millie’s future, isn’t that a fair statement?
Many things about the future of persons that have injuries like Millie’s cannot be predicted with certainty, isn’t that true?
You make mistakes, right?
Every doctor does, right?
Medicine is not an exact science like mathematics, is it, Doctor?
Sometimes you have opinions that other doctors might disagree with, isn’t that a fair statement?
Sometimes those differences of opinions will come about because one doctor knows the patient better or has seen the patient for a longer period of time, isn’t that a fair statement?
Did you or [plaintiff’s treating doctor] see Millie Jones for a longer period of time?
It is always advantageous to be a treating physician when evaluations involve subjective findings like pain?
Millie’s job requires [__].
Millie does not yet have [__].
Millie’s treating doctor is the best person to say when Millie should go back to work.