6 Areas of Cross-Examination

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1 6 Areas of Cross-Examination When doctors differ, who decides among the milliard-headed throng? Sir Richard Francis Burton, The Kasidah of Haji Abdu El-Yazdi, Section viii, Couplet xxix (1853) It is certain that doctors will differ, or you would not be trying the case. The jury decides among the milliard (million or billion) different opinions. The following are examples of areas that may help the jury decide in your client s favor. Many of the examples involve defense cross-examination, but plaintiffs can use them, too. The focus is personal injury and malpractice actions, the most commonly litigated cases. 6.1 QUALIFICATIONS 6.1(a) Well-Qualified Witnesses No Questions If you have done adequate discovery and cannot find a weakness in the doctor s credentials, simply ignore that area of cross-examination. You get to choose the areas of crossexamination, and this simply will not be one of them. Some states still require tendering the doctor as an expert to the other side before inquiring into the doctor s opinion. No questions, or simply accepting the expert as qualified, is the better part of valor. 6.1(b) Not Qualified by Training If a general practice, family practice, or internal medicine physician is testifying concerning an orthopedic injury, there are several approaches. One is to elicit admissions that the specialty is relevant to the case with such questions as, What specialty of medicine treats the condition? or better yet, Is orthopedic surgery a specialty in medicine that treats this problem? Both questions may meet with resistance: I am qualified to treat this condition. A more subtle and successful approach follows. Note how the examiner weaves the questions of qualifications into the case facts and gains her point without making the doctor too defensive: Q: Now, you have said that you are a family doctor, a family practitioner. Q: You re not an orthopedic specialist? Q: And orthopedics is a specialty of medicine that treats problems with the muscles and the bones and the joints, is that accurate? A: Mostly surgically surgical specialty is what it is. Q: Well, they don t always operate, do they? A: No, this is true.

2 86 Cross-Examining Doctors Q: Okay. But they look at the patient with respect to his muscles, his bones, his joints? Q: And you being in a family practice, you treat everything from sore throats to delivering babies and just every area of the body; is that right? A: True. Q: And sometimes you call a specialist in to help with a particular patient? A: Absolutely. Q: Twice during your treatment of Mr. Bridgman, you decided to ask an orthopedic specialist to take a look at him; is that right? Q: And that was Dr. Gross? A: Gross, yes. Q: And he s with the Orthopedic and Neurological Consultants? Note that the examiner has made the point of lack of credentials and made the point relevant to the case. The status of the examiner s testifying orthopedic surgeon has also been enhanced. A more frontal approach is appropriate when a doctor is clearly testifying about a specialty in which the doctor does not have training: Q: Doctor, an orthopedic surgeon has training five years after medical school in treating and operating on problems with the muscles, bones, and joints, is that accurate? Q: And that is called a residency in orthopedics? Q: Do you have five additional years of training? Q: Did you have such a residency? A: No, I only completed one year of orthopedic residency. Depending on the reason the doctor did not complete that residency, you may want to inquire further. Usually, however, the doctor will have an innocuous explanation ( I became interested in family practice or I wanted more personal patient contact ) and the real reason (unsatisfactory progress in the residency) is probably undiscoverable. 6.1(c) Not Qualified for the Case Your expert may be the real expert, treating a unique condition. The other side s expert may be qualified in the relevant specialty, but may never have treated the plaintiff s condition. Q: Doctor, have you ever treated an MCAD [Medium-Chain Acyl CoA Dehydrogenase] deficiency patient?

3 Areas of Cross-Examination 87 Q: Do you have any experience treating an actual patient with this problem? Q: You are only then testifying from what you read in articles and books about those patients, correct? 6.1(d) Not as Qualified as Your Expert If your expert in the above example treats MCAD patients and wrote the articles and texts on MCAD, that will be clear to the jury. Additional questions concerning knowledge of your expert s articles and books may be useful. Here is a more subtle example of making your expert, in this case Dr. Palmer, more qualified: Q: Doctor, you practice psychiatry now. Did you get interested in that as a result of taking courses in medical school? Q: You took courses in medical school? A: Well, there are some psychiatric courses, yes. Q: Did you take those? A: Yes, I did. Q: Did you take any courses in neurology in medical school? A: Yes, yes. Q: Were they of value to you in getting started? A: Essentially. Q: And who taught them to you? Who was the head of the department when you were in medical school? A: Dwight Palmer was one of the wheels. Q: Is he considered a wheel in the psychiatric circles? A: Indeed he is. The lawyer obviously asked his expert, Dr. Palmer, about the other side s doctor and determined the deponent doctor was Dr. Palmer s former student. Another attack to highlight lack of qualifications is to show that the opposing doctor does not have the relevant training in the specialty. Note how the lawyer relates the training to the case: Q: Doctor, there s a subspecialty in the field of internal medicine, which is cardiology, isn t that correct? Q: And a cardiologist deals with problems affecting the heart and lungs, isn t that also correct? A: Essentially, and, also, hypertension and many times, vascular problems.

4 88 Cross-Examining Doctors Q: Well, generally, we are talking about the circulatory system? A: Central circulatory system, the heart. Q: Now, Doctor, internal medicine and the practice of internal medicine involves a wider area and more parts of the body, such as the liver, kidneys, the digestive tract and all that; isn t that correct? Q: Now, in order to become qualified as a specialist in cardiology, one normally undertakes a course of special training, doesn t he; is that correct? Q: And typically, when one becomes a clinical cardiologist, one has at least two to three years of advanced training, doesn t he? A: Not necessarily. To become a certified cardiologist, you need two to three years of training. I did not state at the beginning I was a cardiologist. I m an internist, and I do have a special interest in cardiology problems. Q: That s what I wanted to clear up, Doctor. So you are not trained specially in the subspecialty of cardiology? A: I am not trained in cardiology, but I have training in cardiology. Q: You mean you have taken the same training all other doctors get in cardiology? Q: Now, if one is a cardiologist, he can take more advanced training or further training in invasive cardiology; is that correct? Q: And invasive cardiology, as I understand it, enables the cardiologist to become familiar with and skilled in the use of more sophisticated diagnostic tools that aid in his treating his patients or consulting with other, say, internists or other doctors; is that correct? A: That is correct. Q: Now, you have not had any training as an invasive cardiologist, have you? A: Not in invasive cardiology. Q: And, Doctor, when you said that a catheterization was performed on Mrs. Davis, I take it then you did not perform the catheterization; is that correct? A: That is correct. Finally, cross-examining on your doctor s credentials and experience, which the opposing doctor does not possess, further highlights the fact that your doctor is more qualified: Q: Doctor, what is the American College of Cardiology? A: It is an association of cardiologists who I assume are interested in promoting their standards and their postgraduate courses that are approved. I get involved in the postgraduate courses to some extent. Q: But you don t belong to it?

5 Areas of Cross-Examination 89 Q: Have you ever attempted to join it? Q: Do you have the qualifications to be a member? A: I think I have, yes. Q: What is the American College of Physicians? A: It is a similar organization. Q: Do you belong to that? Q: Are you a fellow of the American College of Cardiology? Q: Do you know what that is? A: I haven t investigated that, but I assume it is a similar organization. I haven t attempted to join any such organization. Q: Are you a fellow of the American College of Physicians? Q: Do you know what that is? A: Well, I imagine they are all professional organizations. Q: You are really not knowledgeable as to what that is? A: No, I am not particularly interested. Q: Have you ever been chief of cardiology at any hospital? Q: Have you ever directed any approved training program for the education of cardiologists? A: Well, I have run the outpatient clinics both at Riverside and at University. Q: Those are outpatient clinics for the treatment of patients? A: Cardiology, yes. Also, internal medicine. Q: Do you train students or residents about cardiology? A: Yes, house staff, but I don t go to the University any more. Q: You are not on the staff of the University Hospital? A: Not now, no. Q: Have you ever been director of an electrocardiology laboratory in any hospital? A: No, I am on the staff of the electrocardiographical service at Riverside and I read electrocardiograms for the hospital, but I am not the director there and I am not interested in being the director of anything. Q: Are you permitted to do cardiac catheterizations in any hospital at the present time? A: No, that is invasive cardiology and I have not trained for that. I am a noninvasive cardiologist. I am not doing any invasive cardiology.