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Medical Negligence Lawyers
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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VII. Voir Dire & Cross-Examination
WHAT QUESTIONS TO EXPECT
Your expert can be expected (or at least should be prepared) to be questioned concerning credentials, to the extent not covered by plaintiff's attorney. This is to raise doubts about any expertise by pointing out areas that are NOT his specialty. If your expert, for instance, is a family doctor, the attorney will ascertain that he is not a neurologist; if he is a neurologist, that he is not a radiologist or a physiologist. The attorney is showing that the expert’s specific medical practice may be insufficient to address some or all of the medical issues. Your expert may be asked about memberships in professional organizations, hospital privileges, board certifications and states in which he is or has been licensed to practice.
Your expert may be asked about experience giving testimony, whether he has worked with plaintiff's attorney in the past, and how much he is charging for the deposition or trial testimony. The expert may also be asked whether he or she has ever performed "independent medical exams" (IME's) and, if so, what percentage of the people are for IME's as opposed to patients he or she is treating.
What should you expect when your expert is "cross-examined" by the "defense attorney" -- the attorney representing either the person who caused the accident or an insurance company opposing plaintiff's claim?
Your expert is not likely to be grilled on the medicine, unless his or her qualifications are “iffy”. Cross-examination is not a medical school-type oral exam. This is especially true if the issues involve "traditional" medicine, with well-established methods of treatment which have been generally accepted in the medical community and literature. In this case, the defense attorney is unlikely to "argue the medicine".
If the issues are "less traditional" medicine (i.e. treatment methods that may be experimental or less accepted in the medical community and literature), the defense attorney may ask your expert to explain the treatment, the literature on testing and support for such treatment, and whether others in the medical community practice in a similar manner. Simply prepare your expert to answer these questions. Your job is not to convince the opposing attorney, but to convince the jury that the treatment is effective. If the treatment helped plaintiff, the jury will probably not care if it was non-traditional.
In all cases, expect the defense attorney to challenge you based on what he or she thinks your expert does not know, such as the details of plaintiff's medical history. The attorney may assume that your expert’s opinion on causation is based solely on what plaintiff told him or her, and that the expert did not have all plaintiff's pre-accident medical history documents, records from other medical providers pertaining to this accident, police/incident reports, etc. The attorney will not expect you to have thoroughly researched this other material. It may also be that the expert and, even the plaintiff’s attorney was not aware of prior suits claiming injury to the same portion of the body.
For example, the office chart or report may indicate that plaintiff reported having no neck pain before being rear-ended by a car going 45 mph. Then the neck symptoms began, ultimately requiring medical treatment leading to the discovery of a herniated cervical disc. If it appears that prior accidents were not disclosed, the defense attorney will probably begin by asking if an accurate and complete medical history is important to the expert in making an accurate diagnosis. Most doctors will respond affirmatively to this line of questioning. The attorney will then ask, if the plaintiff has not given the expert a complete and accurate medical history, then he or she may not have the basis for giving an accurate opinion on causation?" Most doctors will again answer in the affirmative.
Next, the attorney will rely on documents of plaintiff's medical history of which the attorney expects that the expert was not aware. For example, plaintiff may have injured or received treatment prior to (perhaps many years before) the accident in question for the same body part that the treating doctor has been treating. Or he/she may have been involved in another accident subsequent to the one in question, resulting in similar injuries.
Assuming the attorney has this evidence, your expert will probably be asked about it and whether the patient told him or her about it at the time of treatment. Assuming the treating doctor or expert evaluator was not aware of it, expect the follow-up question whether this new information changes the opinion given on direct. If this additional information does not change the opinion, fine. The attorney will probably not challenge the opinion or "argue the medicine." He/she will, however, have placed that information into evidence with the hope that the jury will find that the opinion was based on incomplete information.
You can short circuit this strategy by taking a thorough and accurate medical history. Of course, when you first see the claimant, he/she may not be in a position to provide a complete, detailed history. At some point, it will be important for you to obtain all relevant past and subsequent medical records and to review them with your expert before a report is written or testimony is given. Plaintiff's attorney should be relied upon to obtain these records.
Even if plaintiff’s expert sticks to his or her guns and denies that the prior medical history alters the opinion on causation. The defense attorney will probably have a medical witness to present an opinion opposing this. This doctor will, of course, have reviewed the chart notes and all other medical records, including those you may not have been aware of. Even if this doctor's testimony is no more persuasive than your expert, the defense attorney will want to convince the jury that this doctor's opinion is more reliable since it was based on more complete information.
Finally, the defense attorney will also want to know when your expert first saw this patient relative to the injuries allegedly suffered in the incident. If your treating or evaluating doctor did not see the patient until long after the incident, the attorney will want the jury to think that the treatment or evaluation was too remote in time to give your expert a good basis to explain and render an opinion that the incident caused the patient’s injuries.
