How to Cross-Examine a Doctor

Sunday, September 25, 2005 | 0

The following originally appeared as a post to the WorkCompCentral California Professionals Forum. The editors felt that, while it mentions a couple of California cases, the priniciples and advise were universal. We have republished it here, edited for grammar, spelling and readability:

I've always thought that one of the finest points of the art of being a trial lawyer is the effective cross-examination of experts. Unfortunately, because of the low risk nature of comp and typical injured worker attorney high volume practice that dictates against taking expert depositions not many attorneys ever developed the experience necessary to take an effective expert deposition. That is a shame because almost every medical report presents excellent opportunities.

Apportionment presents a unique and excellent opportunity to run with the ball. Recall, apportionment is an affirmative defense. The burden of proof is on the defense. And, under [the recent California decision] Escobedo (this is not a new principle) the medical evidence must pass "substantial evidence", and not be speculative - which is really the Kelly-Frye/Duabert standard of no junk science, no speculation. Ask any doctor outside of an adversarial process and they will admit that almost all apportionment built on generic degeneration or age-components is rank speculation. So, you can attack just the apportionment aspect, enjoy the other agreed medical examiner findings and use your primary treating physician to further trash the apportionment argument.

There are a few points to remember in cross-examining a medical expert on apportionment.

First, the report generally is lacking in details and that can be exploited. For instance, on giving an opinion on apportionment, what peer reviewed materials were relied upon, what is the data to support degeneration in similar circumstances on peer reviewed studies, etc.? What was discussed with the injured worker with regard to daily activities versus work activities? The bottom line is that in any given context, there are thousands of things to ask. (I suppose I don't have to point out the usual history errors, flat out wrong extrapolation of facts from the records, etc.)

A specific useful technique for dismantling a generic degeneration/age apportionment argument is to ask the doctor to admit that micro trauma might contribute to degeneration, it might not, acute trauma might contribute, it might not, a person with this condition might go through life without problems and might not.

Ask him if he is familiar with studies in peer reviewed journals that study persons with similar anomalies that remain asymptomatic as compared with those that do not. If he says yes, you have him. Ask him which ones and then ask him how they fit into his opinion. Did he rely upon them? Did he consider them? Did he ignore them? He says no, you have him since he did not consider the body of science on the issue. You then give the transcript to your primary treating physician with the studies (there are various internet medical publication databases where you can do a boolean search and come up with the reports you need - you can buy them online or drop by your local medical school library and copy away.)

Second, don't try to cross-examine an expert on his field. He will murder you, as it is his expertise. It would be like him trying to cross-examine you on the law - complete mismatch. You cross-examine him on the law applicable to the case and the law of evidence. Chip away at the foundation, ignorance of legal principles, etc. Remember, lawyers and doctors speak different languages. For instance totally and permanently disabled means one thing to us in a work comp case, it means something else medically. You have to formulate the definitions and ask him to agree.

Lastly, if you notice the deposition you are in control of the opening questioning. No doctor, no one for that matter, likes to look like a fool. So with a carefully crafted roadmap of questioning it is not difficult to get the expert to go where you want him to, so long as your inquiries are scientifically reasonably, i.e., "Is it accurate to state, doctor, that microtrauma of daily living may contribute to further deterioration of the spine?" "Is it also fair to state that microtrauma of daily living might not cause further degeneration?" "So is it also fair to state that whether the microtrauma of daily living may or may not contribute to further deterioration?" "In some people microtrauma may contribute, in others not?" Once you have him going in this direction then you can continue chipping away carefully until to get to the admission that apportionment is speculative by its very nature.

Once you have the doctor committed to an answer, he will not likely reverse when the defense attorney tries to rehabilitate, because no one likes to look stupid, or a flip flopper, or bought and paid for. So, I think it is advantageous to the injured workers attorney to notice the deposition.

As to money, sure you have to pay for it, and I have news for you. Deposing a doctor in comp is CHEAP! They get only 200/hr or 250/hr for AME's [in California]! In a civil context it will cost you three to five times that amount and there is no guarantee you will get it back. In [California] work comp, you just file your lien and you will get it back absent unusual circumstances.

Plus, the only way you get any good at doing them is to do them. Take a shot. You might be surprised at the result and gains some confidence in doing so.

The actual thread this article was derived from can be viewed at http://www.workcompforums.com/ca/pro//messageview.cfm?catid=5&threadid=2132.

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