The following plaintiff’s checklist for the direct examination of plaintiff’s treating doctor is built on principles of persuasion, including the order of presentation of the individual items. It is not an unordered or happenstance checklist of items. For example, when a witness comes to the witness stand, the jury wants to know immediately what subject this person is going to be talking about and why they should listen to this person. Therefore, this following checklist starts out with the question, “Doctor, do you understand that we are interested in the injuries that John Jones suffered in the auto crash of January 13, 2010” (followed immediately by information being given to the jury that this doctor treated the plaintiff for certain specific named and important injuries).
In this checklist the Plaintiff is referred to as “John” and he was involved in an auto crash. “Auto crash” can refer to any type of incident the Plaintiff was involved in.
Deposition or Trial Checklist — Plaintiff’s Direct Examination of Treating Doctor
1. WHY THE WITNESS IS HERE
Doctor, do you understand that we are interested in the injuries that John suffered in the auto crash on [date __________]?
You treated John for some of his injuries, didn’t you?
Doctor, are you a specialist in a certain field of medicine? Please describe that specialty for us. (Alternatively, if this is not a specialist, but rather a general family doctor or insurance primary care provider, the plaintiff’s lawyer may ask: “Doctor, have you been a family doctor or primary care provider for John?”)
2. MAJOR INJURY LIST
Without getting into the details right now, what were John’s major injuries from the auto crash?
3. PRE-ACCIDENT TREATMENT BY THIS DOCTOR
If this doctor treated the patient before the date of the accident, the plaintiff’s attorney will ask:
We will come back to ask you questions about those injuries. But right now, we probably should know what John was like before the accident. Was John a patient of yours before the auto crash?
How long before the accident had you been seeing John?
When were the last few times before the auto crash that you saw John?
Please summarize for us briefly what John was seen for, and what you did for him, during that period before the auto crash.
Doctor, you have told us that the major injuries of John, from that auto crash, for which you treated him, were [list of major injuries].
Then for each separate major injury (the injuries from the auto crash) plaintiff’s lawyer will ask:
Did John have ________________ before the auto crash?
[Note: if the plaintiff had a pre-existing condition for which he or she claims aggravation, now is the time the plaintiff’s lawyer will add questions to establish the level of the problem before the aggravation of the traumatic injury involved.]
4. FIRST EXAMINATION BY THIS DOCTOR AFTER ACCIDENT
When did you first examine John after the auto crash of January 13, 2010?
What medical history did you get from John, and from other physicians and/or records?
Will you tell us what physical examination you made on this first visit, and what it disclosed? Mechanical Aids – Special Studies (electronic studies, lab tests, x-rays)?
In coordination with your initial diagnosis, were there consultations with other doctors?
Who? Why? When? What did they report to you?
Location of pain described by John during this first examination?
Jurisdiction’s legal certainty requirement – Doctor, in any question I ask you calling for your opinion, there is an implied part of my question, which is “to a reasonable degree of medical certainty.” I want you to answer my questions only if you have a reasonable degree of medical certainty. Do you agree that in answering my questions, you will only give an opinion if it is to a reasonable degree of medical certainty?
If the doctor has already given some opinions, the plaintiff’s lawyer will ask: Are all the opinions you have expressed up to this point given to a reasonable degree of medical certainty?
5. FIRST VISIT DIAGNOSIS
After that first visit, did you form a diagnosis of the problems John was having?
6. QUALIFICATIONS OF DOCTOR
How long have you been a doctor?
In what state are you licensed to practice medicine?
Where do you practice medicine?
What medical training have you had, before you were licensed in this state?
What medical training have you had, after you were licensed in this state?
What did you have to do to be certified as a specialist in ______?
Doctor, I have some details of your professional life. Would you listen to this and tell me at the end if these are qualifications, or memberships or positions that you have? [The plaintiff’s lawyer will read the list – but leave out any publications and teaching positions.]
Have medical journals [or medical book publishers] published things you have written? Tell us about those publications.
Have you been appointed or chosen to teach other doctors? Tell us about those teaching duties.
7. DESCRIPTION OF PARTS INVOLVED AND FUNCTION AND INJURY (PLAINTIFF’S LAWYER WILL HAVE THE DOCTOR GIVE A SHORT ANATOMY LESSON.)
Can you explain the anatomy involved to help us understand the differences and effects to John’s body because of the auto crash?
(Drawings by the doctor?) (Medical illustrations or models?) (Photographs?) (Offer in evidence?)
8. SUBSEQUENT EXAMINATIONS AND TREATMENT
You have told us about the first time you saw John. Did you see him from time to time after that?
As to each subsequent exam or treatment, the plaintiff’s lawyer will ask the doctor to describe:
What were the major findings when he was seen that time?
What tests and treatment did you prescribe or give to John?
What medications were prescribed or was John told to continue taking?
If Later Studies, X-rays or Tests — describe each.
If Physical Therapy — what type and how long?
If Mechanical Devices (e.g., brace, TENS unit, bone stimulation) — what type, why and
how long needed?
Did you give John instructions on what he could or could not do while he was recovering from his injuries?
9. REFERRALS AND SPECIALISTS
In coordination with your treatment, were there consultations with other doctors? Did John see other specialists?
If yes, then: The plaintiff’s lawyer will review major records of this doctor or records in this doctor’s file (other than hospital records) and of consultants or referred specialists that the lawyer wants the jury to focus on, and that he or she wants to introduce into evidence.
The lawyer should then ask this doctor to explain entries and the record itself. Introduce the record to be emphasized separately into evidence.
10. COMPLETED VISITS FINAL DIAGNOSIS & INJURY LIST
The major injuries you told us that you found on your first examination of John on [date__________] were: [repeat Major Injury List items 1, 2, 3 by number and summary]
Would you now list for us any additional problems that were diagnosed or seen by you as time went by?
Why was hospitalization required?
How long was he in the hospital?
What was done?
12. OPERATIONS AND INVASIVE PROCEDURES
List any operations and/or invasive procedures. (Or the lawyer might list them and then ask the doctor to confirm the list).
What was done in the operation or invasive procedure?
Why was this operation or invasive procedure necessary?
Medical photos or electronic visual records — plaintiff’s lawyer will introduce into evidence and have the doctor describe what they show.
If the doctor participated in an operation on the body, then — did you confirm your diagnosis and actually see what was wrong?
Postoperative course: what occurred?
13. HOSPITAL AND INVASIVE PROCEDURES RECORDS
The plaintiff’s lawyer will review major hospital and operative records that the lawyer wants the jury to focus on, or to specially understand, and that the lawyer wants to introduce into evidence.
The lawyer will introduce the record into evidence. E.g., separately have each operative record viewed by jury. The lawyer will then ask the doctor to explain entries and the record.
14. PAIN – IS IT REAL AND NOT MALINGERING?
Doctor, it says in the records that you prescribed ______ “prn for pain.” What does that mean?
Is there any doubt at all in your mind that John suffered pain from his injuries?
Did John impress you as being a patient who wanted to get well?
15. DISABILITY DURING TREATMENT
Did John have any physical disability during the course of treatment and while you were seeing him?
To what extent?
16. AUTO CRASH AS PROXIMATE CAUSE OF INJURIES
EYEWITNESS CAUSE QUESTION:
Doctor, you told us that in your treatment you learned that John had been in the car crash on [date ______]. You saw John from __________ to ________. You actually saw John’s injuries, and you have told us what you saw. And you have told us John’s injuries included [list of injuries].
Were those injuries caused by the auto crash of [date ___________]?
Additional question or alternative question to the “Eyewitness Cause” question #1 above:
Doctor, assume that (facts of the accident), and assume that (medical chronology). Assuming these things, Doctor, do you have an opinion based upon a reasonable medical certainty as to whether such an auto crash could cause [List injuries]?
What is that opinion?
You have described John’s problems as [list problems]. As a matter of medical science, does that condition cause pain?
As a matter of reasonable medical certainty, was John suffering pain?
18. STATEMENT FOR SERVICES
Do these bills for the services of you and your medical group show the medical expense(s) for your services?
Were these charges reasonable and customary for those types of services?
Were these services reasonably necessary for treating the injuries of John?
19. LAST EXAMINATION – PRESENT CONDITION
When was the last time you examined John?
What was his condition at that time?
Was John still having pain?
Was John still physically impaired at that time?
Was there anything in your examination to cause you to disbelieve complaints of John?
20. FUNCTION: IMPAIRMENT; DISABILITY
EFFECT OF INJURY ON BODY FUNCTION (IMPAIRMENT):
What limitation of function does John have because of the injuries?
If the doctor did objective measurements of function loss, the plaintiff’s lawyer will discuss them.
If the doctor is willing to use AMA or other tables to translate his/her findings and measurements into percentage of disability or impairment, the plaintiff’s lawyer will ask about the existence of standard tables, that they are relied upon by doctors in treatment and rehabilitation, and what they show for John’s percentage of disability or impairment.
(Impairment rating) Doctor, as a matter of medical science, how would you characterize John’s present injury with relation to his body function as a whole?
EFFECT OF INJURY ON ABILITY TO PERFORM TASKS OF LIFE (DISABILITY)
Do these injuries have an effect on:
His employment? Past — present — future?
His sleeping? Eating? Breathing?
His standing? Sitting? Walking?
His recreation? Sports? Driving? Social activities?
Are there any related bodily problems occurring?
Does he have dizziness? Headaches? Nausea?
Does he have loss of appetite? Sleeplessness? Fatigue? Irritability?
Does he have any related psychological or mental problems occurring?
John testified [says] that some of his biggest problems are: [list of injuries]
Are those problems consistent with the injuries John received?
21. INCREASED RISK OF OTHER PROBLEMS
Do John’s injuries actually put him at risk for other injuries or illnesses?
[For example, injury to joint or back can increase the severity of normal aging-related arthritis. Burn increases chance of skin cancer. Loss of smell increases chance of not detecting gas fumes. Injury to leg of elderly person increases chance of falling and fractures.]
What is your prognosis for John?
[The plaintiff’s lawyer should inform the doctor in his or her preparation for testimony that the law requires only a reasonable expectation. That is, what he or she thinks is most likely to occur. The law of the jurisdiction may require the lawyer to use the term “reasonable medical certainty” or “medical probability.” The lawyer should explain beforehand to the doctor that this term does not require anything more than a reasonable expectation.]
23. FUTURE TREATMENT AND EXPENSE
Do you have an opinion, based on a reasonable degree of medical certainty: what is the probable future course of treatment you expect John will need?
Will that treatment involve expense?
At today’s rates what would be the reasonable range for that expense?
What is your reasonable expectation of the medications John will need for his injuries after today, and how long he will need to have those medications?
24. FUTURE PAIN
Do you have an opinion, based on a reasonable degree of medical certainty: will John have pain after today?
What is the probable future course of the pain that you expect?
25. FUTURE IMPAIRMENTS
Do you have an opinion, based on a reasonable degree of medical certainty: will John have impairments after today?
How long will this impairment continue?
No matter what he does, John probably will have this impairment from [date _______] until [date _________]?