Monthly Archives: June 2011

Cross-Examining Defense Experts With Their Own Ethics Rules

As I write this, I’m sitting in a hotel in Houston, Texas. I’m here for depositions of some out of town medical experts. So I thought I would share a great tip for cross-examining defense medical experts: Use their own ethics code against them.

Nearly every medical expert belongs to some sort of professional group that has an ethics code. The American Medical Association, American College of Surgeons, American Psychological Association, and American Association of Neurology all have their own ethics rules. So do most other medical professional groups. Sometimes they even have specific guidelines for giving expert testiomny. These can be great fodder for cross.

Most of their members are aware these ethics rules exist but are unfamiliar with their content. If they have ever read them at all it was usually years ago. But they really have no choice but to admit that the rules exist and that they are governed by them. I mean really, who would refuse to admit to being subject to their own professional group’s ethics rules?

Friday I cross-examined a neurologist who was rendering opinions on causation based solely on treatment he had given the plaintiff two years earlier over a three day period, out of six years of the plaintiff’s medical treatment. I knew he had not read the entire medical record- not the four years of records from before he saw my client or from the two years after.
So I asked him this set of questions:
You are here in your role as a neurologist?
Because you have knowledge and experience in the field of neurology that a layman does not, right?
You are offering opinion testimony in this court case based on your knowledge, training experience, and your treatment of Mr. Smith?
You are a member of the American Academy of Neurology?
You consider yourself bound by the AAN Code of Professional Conduct?
Please take a look at what has been marked as Exhibit 2, which is a copy of the AAN Code of Professional Conduct.
Allow me to direct your attention to §6.4- Legal Expert Testimony.
Please read the second sentence of §6.4- “Before giving testimony the neurologist should carefully review the relevant records and facts of the case and the prevailing standards of practice.”
Do you agree with that statement?
Have you “carefully reviewed the relevant records and the facts of the case?”
As of last Friday, you had never seen any medical records relating to Mr. Smith except the ones you created, correct?
And at that point, you had not even seen your own records since they were created in 2009?
Have you now seen any of those records? When did you look at them, how much time did you spend reviewing them? (He first saw them when he arrived at the deposition.)
As of today, have you reviewed any of the records other than your own?
You have never seen the records from the four years of medical treatment before you saw him?
You have never seen the medical records for the two years of medical treatment Mr. Smith has had since you last saw him?
Have you ever read the whole 1500 pages of medical records in this case?
You would agree that a physician who had reviewed the entire medical record would have more information available to him than you did?
Do you agree that having more information would be helpful in rendering an accurate opinion?
A physician who had access to more information than you would be more likely to render an accurate opinion?
If you had read the entire medical record, there could be things in there that might impact your opinions about Mr. Smith, couldn’t there?

You get the idea. This is just one example of how to use a medical expert’s own ethical obligations against him. There are a million things you can pull out of these various ethical codes that can be helpful in cross. It just takes a little research, and luckily most of these ethics rules are available for free on the internet.
So be creative, and have fun!

Uninsured Motorist Case Trial Report

It has been a very busy summer for me and there is no respite in sight. This is a good problem to have during a time when even large national law firms have been downsizing because of a lack of work.
I just finished a jury trial in Baltimore City against two defendants – the driver who struck my client and her uninsured motorist’s insurance carrier. This lady was hit by an uninsured driver. He was uninsured because he was an excluded driver on the insurance policy for the car he was using.

At first, it didn’t seem like a terrible accident. My client first noticed back and leg pain at the scene that got progressively worse. She was taken to the emergency room by ambulance, and during her follow-up treatment she was diagnosed with two herniated discs from the accident. She was evaluated by an orthopedist who said that the two herniated discs were caused by the accident, and that her problem would be permanent. Her medical bills weren’t extreme – approximately $8,000.

The UM carrier only offered $3,000 to settle this case because the damage to the vehicles was not severe and because my client had some prior problems over the years involving back and leg pain. She had some pre-existing arthritis, but there was no evidence that she had ever had herniated discs before this accident. The insurance company hired one of “the usual suspects” to review her medical records and write a report saying that she wasn’t injured in the accident and that her problems were pre-existing. This doctor never even examined her.

The Baltimore City jury awarded more than ten times the last settlement offer – $37,000. I think that is much closer to a fair result. But my client wasn’t demanding anywhere close to $37k to settle the case. Rather than subjecting herself to a trial with an uncertain result, she would probably have settled the case for half that. The insurer could have saved itself a lot of time and money by making a fair settlement offer in the first place.

I guess I will never understand why UM carriers keep taking such hard line positions against their own insureds in settlement negotiations. I don’t think juries like it when plaintiffs have to sue their own insurance companies to get the benefits they have already paid for.

Reading Medical Records is Boring. Too Bad, Do it Anyway.

There is really no way to be a competent personal injury lawyer without spending an awful lot of time reading medical records. Poring through stacks of records is boring, time consuming, and we are all faced with an ever-increasing list of seemingly more important things to get done.

Many lawyers have a paralegal read and summarize these records (if anyone reads them at all)because a) they don’t want to do it; b) they think their time is too valuable to spend on it; and c) they don’t want to do it. Did I mention they don’t want to do it? I did? Good.

I am not one of them, although I have an excellent paralegal who usually does a run-through of the records and attaches a cover memo pointing out entries of interest. This is very helpful, but I read them all myself every single time, and create my own contemporaneous notes. Not just the records generated as a result of treating the injury my case is about, but also any prior medical records I can get my hands on.

Why? Lots of reasons. Two sets of eyes are better than one. Maybe something got missed. Or, presumably I have a broader knowledge base, so sometimes I catch something significant that the paralegal didn’t have reason to question.

But the real reason is for my own preparation. I need to be familiar with the records to give my client advice about case strategy, to confer with my expert witnesses, and to prepare my trial presentation. Ultimately, it’s me standing in front of a jury, not my paralegal.

And for me, the best way to assimilate a large volume of material is to summarize it. It all goes back to Ms. Shuler’s 9th grade French class. I wasn’t a big note taker, because I thought I was smart enough to remember it all. I was wrong, and my grade was less than outstanding. My teacher noticed, and she started requiring me to copy down notes on the lessons and turn them in. Her theory was that “if you write it, you remember it.” Well, at least for me, she turned out to be right. My grade got better, and I still use the same method today to learn important material.
It works, but I can’t say I enjoy doing it.