Cross-Examination of Defendant’s Expert
New York Medical Malpractice Lawyer – “Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian; and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.” – David Paul Brown
I. Research, Research, Research
A. Know the Medicine
Understand and internalize the underlying medicine. You may be able to get by with a somewhat superficial understanding of the medicine on direct examination of your expert, as the expert is doing the heavy lifting. On cross-examination, an easy facility with the medicine will allow you to parry any attempt by the expert to obfuscate. When the expert veers from the science, your role is to push him back to the straight and narrow, and you can achieve this only with a thorough understanding of the medicine.
The more basic medicine you know, the more prepared you will be for the unexpected, and the unexpected always occurs at trial. Internet medical databases are an effective tool to help you understand medicine. I particularly like www.uptodate.com, www.webmd.com, and www.emedicine.com. Be cognizant that, in a sense, every day in your practice is foundation preparation for your next cross-examination.
B. Study Other Cross-Examination Transcripts
Read the cross-examinations of trial lawyers you admire. Gather as many records on appeal as you can or borrow transcripts of cross-exams. In their work, these experienced trial attorneys are applying the sum of their experience, and they have learned as much, or more, from defeat as they have in victory. Don’t mimic-instead, absorb, and adapt.
Find words, phrases, and techniques you like and make them your own. If you simply mimic others, you will grate upon your jury’s collective ears; find your own voice, and the jury members will find themselves nodding in tune.
C. Identify the Expert
Identify the defendant’s expert upon receipt of the required disclosure under N.Y. Civil Practice Law and Rules by using the ABMS Medical Specialists Plus CD (Saunders/Elsevier). The CD contains the American Board of Medical Specialists database, which you can search according to various criteria to identify your expertise, including medical school attended, training specialties, board certifications, and jurisdiction of licensure and areas of expertise.
II. Medical Malpractice Cross-Examination Strategies and Tactics
If by the time you rise to your feet for cross-examination you haven’t already essentially won your case in the jury’s mind, your examination of the defense expert likely will not turn the tide. But, if the jury is leaning toward the plaintiff, effective cross-examination can serve to solidify the jury’s opinion and give them ammunition as they deliberate. Your job is to select those specific points of attack that bolster your case and undercut the defense position. Use a rifle rather than a shotgun. The jury is listening carefully and will notice if you start flailing about.
Undermining the adverse expert’s opinion is your goal. You need not struggle to “destroy” the expert to attain the desired end, but rather should concentrate on a step-by-step approach to casting doubt on the fundamentals of the expert’s testimony. A mindset bent on destroying the opposition may lend an off-putting shrillness to your questioning. You have spent days, perhaps weeks, winning over the jury with your knowledge and direct manner—don’t blow it now by abruptly switching gears into attack-dog mode.
The jury will instinctively side with the medical doctor if you give them any reason to believe that you are a “typical” lawyer. The jury has been watching and listening to you since the opening; they are looking to you to be prepared and to continue in your teaching role. Demonstrating your competence will enhance your credibility at summation. Don’t let them down during cross-examination—know your material cold, teach through your questioning, and combine the more technical questions about the medicine with a common-sense approach.
Specific strategies to help you prepare for and conduct a successful cross-examination are set forth below.
1. Develop a Script
Script your exam before you enter the courtroom. Do you have a photographic memory? Unlikely. Are you a rare genius amongst trial lawyers? Perhaps even more unlikely. So, come to court with a script of your cross-examination containing every “must ask” question in a well-thought-out order. You might wonder, “Won’t a script limit me or stifle my creativity?” No, because you will be so well prepared, you will feel free to take a particular answer wherever it leads and then returns to the script for the next series of questions.
A script allows you to outline and highlight, in advance, prior court, or deposition testimony. If you wish to impeach with prior testimony, what better way than to have the page and line noted directly next to the intended question? If you wish to inquire in relation to laboratory values or progress notes, again, have the page noted alongside the question.
An uncertain question often leads to an equivocal answer, which does you no service. A shrewd and pointed question is not the result of luck, but of patience and perseverance. Train yourself by constant repetition to sound the trumpet of certainty. It is much easier to formulate precise and pointed questions in the quiet of your home or office rather than under courtroom pressure. You receive no points for formulating questions on the fly, and the jury will appreciate a well-planned line of attack. However, questions not anticipated by your script undoubtedly will arise. In such instances, your questions will be considerably more effective if you apply the same principles noted above. Rambling questions beget rambling, discursive answers. Other than hypothetical questions, keep your inquiries reasonably short and pointed. Edit, edit, edit.
Lastly, a script allows you to easily divide your exam into discrete segments, allowing for an orderly progression to a planned climax.
2. Determine Your Examination Approach
Cross-examination is not an art. It’s more akin to a trade like masonry, in which you lay one brick at a time, spread the right amount of mortar to connect it to the next brick, and keep going until you have a solid structure that can withstand a barrage of assaults without toppling. How many bricks and how much mortar that requires will depend on the circumstances of each case. Despite what you may have been told about how much time cross-examination should take, there is no magic rule. A lengthy yet interesting and effective cross-examination will keep the jury’s attention. A short yet lethal cross-exam is worthy of awe. Develop and trust your own style. I subscribe to the theory that the best way to slay the dragon is not with one stroke, but rather by what one eminent and experienced trial judge approvingly called “death by a thousand cuts.”
Medical Malpractice Cross-Examination Example
Suppose your client had presented in the emergency department (ED) with a severe headache. The defendant doctor failed to diagnose as a subarachnoid hemorrhage what your client had described to ED personnel as “the worst headache of my life” and, consequently, prematurely discharged her. The defense argues that your client did not present with the “worst headache of her life,” as she claimed. Your cross-examination might go in part like this:
Q: Would it be correct to say [would you agree with me] that headache is an extremely common presenting complaint to EDs?
Q: Would it be correct to say that the great majority of headaches are transient, self-limited events that never come to the attention of ED staff?
Q: Would it be correct to say that it is known to medicine that patients who seek ED help for a particular headache usually think that the headache is somehow different from the random, benign headaches that many people have?
Q: Only a small percentage of patients have serious, treatable causes of headaches such as subarachnoid hemorrhage?
Q: The ED physician must be aware of the broad list of potentially significant diseases that may present with headache as the primary symptom?
Q: The goal of the interaction with the patient is to distinguish between those patients whose headaches are benign and those whose headaches are due to a serious intracranial process or systemic disease?
Q: The ED physician must approach each patient as if he or she might fall within that small percentage of patients whose headache is due to a serious intracranial process such as a subarachnoid hemorrhage?
Q: Intracranial aneurysm may give rise to a headache, sometimes called a sentinel or warning headache?
Q: A headache stronger than past headaches can be a presenting sign of intracranial hemorrhage or infarct?
Q: Early identification of sentinel headaches is key to reduced mortality and morbidity?
Q: Subarachnoid hemorrhage classically causes a sudden onset of severe headaches?
Q: In general, would it be correct to say that the intensity of the headache is not a reliable indicator of the underlying pathology that causes it?
Q: A complete neurologic screening exam is required in all patients with a headache?
Q: The combination of a headache and backache is consistent with a subarachnoid hemorrhage?
Q: A patient with a subarachnoid hemorrhage may or may not describe his or her headache as the worst ever
3. Practice Vocal Modulation and Control
Your voice is a tool. Sharpen it. Practice changing tone and emphasis. Learn to speak softly and then use rising volume for a change of pace— rising volume, not shouting. Shouting may engender uncomfortable, visceral feelings among jury members. On the other hand, questions delivered in a steady drone will put your intended audience to sleep.
Do your best to rid yourself of verbal tics, such as saying “OK” or “ all right” after every answer. These tics grow tiresome, distract the jurors’ attention, and detract from your aura of professionalism.
4. Explore Potential Expert Bias and Impeachment Sources
Find out if the expert has been a defendant in a malpractice case. Perhaps, if you are lucky, that case involved some of the same issues as your case. At any rate, being a defendant can be seen as a reason for an underlying bias, which you should explore. The most disarming bias is a personal relationship with the defendant.
Why couldn’t the defense find an objective expert who had no relationship with the defendant? Perhaps because no objective expert could be found to defend the indefensible. The question to ask is not “Do you know the defendant?” but, rather, “For how long have you known the defendant?” Investigate the witness’s background, experience, and perspectives by examining his or her website or an affiliated hospital’s website. You may find statements in the expert’s own words that you can use as admissions, as well as treatises authored by the witness that you can mine for impeachment purposes. Your file should contain, to the extent practicable, everything the witness has written or said.
Organize your impeachment materials. You have impressed the jury thus far with your knowledge and organizational skills. Fumble now and you risk diluting the drama of the point you’ve been building toward. You must be able to move seamlessly from the setup question to the knockout.
Impeach, impeach, impeach the witness with his or her own writings or the writings of a partner or co-author. Scour the internet and appropriate journals for the witness’s writings on the subject in question. To discredit a witness using his own words is an extremely powerful tactic, especially when a journal supports your position and the expert seemingly has taken the opposite position in order to serve the one who is paying the bill.
5. Use the Defendant’s Expert to Bolster Your Expert’s Credentials
Perhaps your own expert is on the governing board in the defendant expert’s specialty or gives the oral portion of the certification exam to board candidates. In such a case, you may be able to underscore your own expert’s outstanding credentials through the defendant expert’s admission that such honors are ones he or she has not attained. The goal is for the defense expert to start behind your expert in the jurors’ eyes.
Well-qualified experts often engage in peer review and take that responsibility quite seriously. Although the jury may not fully understand what peer review is, consider asking the following questions in order perhaps to make the witness wary of going too far in her defense of the defendant’s inaction:
Q: You have sat on peer review committees where you evaluated care rendered by another physician?
Q: You took that responsibility very seriously?
Q: Will you agree not to express any opinion in front of this jury that you would not fully support in a peer review setting?
Sometimes experts are advised to look directly at the jury whenever they are responding to a question. If you notice the witness doing this when answering your questions, reposition yourself so that the witness’s natural tendency will be to shift his or her eyes from the jury to you. If the witness continues to speak directly to the jury, despite the fact that you are on the other side of the courtroom, he or she likely will appear insincere. Feeling lucky? Ask the witness whether he or she believes in the jury system. You never know what you might hear in response.
6. Pay Attention During Direct Examination of Defendant’s Expert
The cross-examination of the defense expert begins with his or her direct exam. Listen exceedingly carefully and take concise and legible notes. Don’t let your mind wander to great avenues of cross-examination while the expert is expounding on a point crucial to your case. Focus on what is being emphasized, on what is being said, and on what is not being said. Occasionally, the questions not asked are more important than the ones that are. What did the witness shy away from, and why? What did defense counsel neglect to ask, and does the omission seem purposeful?
Develop a system that will allow you to stratify your notes by importance, permitting you to effectively use them during the cross-examination. And make sure your notes are legible, lest you find yourself in the unseemly position of having to plead with the judge for more time because you can’t read your own hastily scribbled handwriting.
At the close of direct, gather your thoughts and ask yourself: Has the witness truly damaged my client’s case? If, yes, what is the extent of the damage, and what can I do to undo the harm? Above all, don’t panic. You are prepared, aren’t you?
B. Conducting the Cross-Examination
1. Apply What You Learned During the Direct
Evaluate whether on direct the defense expert has attacked every one of the departures you established with your expert. If not, let the omitted areas lie to avoid giving the witness another bite. Do not be lulled into complacency by an indifferent direct, as many experts are effective counterpunchers who rally to the flag when challenged. You underestimate the witness at your own peril. Stay focused, lest you be left wondering how that “ditherer” won the day.
Perhaps the witness listened carefully to the defense attorney’s long-winded and convoluted questions and then gave cogent and concise answers. If, during your exam, your clear and direct questions are constantly met with “I don’t understand your question, Counsel,” you might want to make a point of this, and do so more than once. A feigned lack of understanding will quickly wear on the jury’s patience and seriously damage the witness’s credibility.
The jury may be more forgiving of a first-time expert than a more experienced one. Be careful not to turn the witness into a victim by engaging in petty bickering.
Review the expert’s file, if available, in its entirety. Take as much time as the court will allow reviewing the file in detail. Search for any item of information that contradicts the sworn testimony just given. Perhaps there is a “confidential” memo that identifies some weakness in the defense position or a bill for services documenting fees much higher than testified to.
Perhaps this seasoned expert did not bring his file. Why? Something to hide? Ask. Ask the witness if he has prepared and brought along any computer or handwritten notes. You may be pleasantly surprised by what you find. Perhaps the defense attorney has taken the expert on a long exposition of the dozens of articles she has written over the years. You have likely either obtained the expert’s CV secondary to identifying her pretrial or done a Medline search. If you are exceedingly sure of your ground, you might ask:
Q: Would I be correct in saying that not a single one of the articles you have authored deals specifically with the issues in Mr. Smith’s case?
Be an active observer. Do not look away from the witness to make notes while the witness is speaking. Read every nuance of voice inflection, eye movement, and general body language.
Internalize the answer before moving on to the next question. Perhaps you want to jump ahead, or even back. Take your time. The clock is not running.
Never refer to your client as the patient. Use her name and perhaps the witness will personalize his answers as well. Never let the jury believe that this is just another case for you—a real person is seeking justice here.
2. Control Defendant’s Expert from the Start
Do not be intimidated by the credentials or apparent expertise of the witness. First, the jury may not quite understand the arcane difference between an associate or full professor and may not really understand just what a diplomate is. Second, you are standing in your courtroom, not his operating room, and you can control events. Do not be defensive. Use the knowledge you have accumulated. Remember: In the narrow area of medicine in dispute, you can be as expert as the expert, assuming, of course, that you’ve done your homework.
Some highly credentialed experts may no longer be doing hands-on clinical practice. Ask when was the last time she delivered a baby or resected a bowel; if three years ago, great. If she says just last week, don’t let that phase you. In a matter-of-fact manner, comment, “You should, of course, then be very familiar with the medicine in this case. Let’s explore some of it now.”
3. Use Anger as a Tool
Study the witness’s demeanor on direct. Friendly? Stiff? Articulate or not? An angry witness is your best friend. Give the witness free rein to be angry. Do not react in kind.
Rein in any natural aggressiveness. You may know from your own prior experience with the expert, or by reputation, or through transcripts that he is a sleazy prevaricator whose opinions are for sale. The jury knows nothing of this, and if you jump ugly from the start, you risk becoming the villain.
Give the witness some room at the outset. Start off with a smile and gentle manner. You will have plenty of opportunities to get tough, if necessary. Anger is an effective tool only if the jury will perceive it as genuine and appropriate to the moment. The great majority of lawyers do not do anger well, and an indignant, scolding tone wears thin quickly. The jury does not want to see you as arrogant, condescending, or cruel; if they do, they may stop listening to you.
4. Establish Parameters at the Outset
You may want to begin with some of the following preliminary predicate questions, or use them as needed along the way:
Q: Doctor, I am going to be asking you a series of questions today, and I would like to establish some guidelines with you.
Q: Will you try not to answer or interject until I have completed my entire question?
Q: Agree that every specialty of medicine has standards of care?
Q: Agree that it is the obligation of every physician to be familiar with the applicable standards of care in his or her specialty?
Q: Agree that one of the purposes of standards of care is patient protection?
Q: Agree that in some cases non-compliance with the standard of care can cause an otherwise preventable injury?
Q: Agree that if I ask for your opinion, I am asking for an opinion to a reasonable degree of medical probability/certainty?
Q: Do you believe that you have the obligation to render only objective opinions in this case?
Q: Is information that is set forth in the medical records an important source of objective information upon which to base your opinion?
Q: Would you agree that one component of objectivity is that you don’t shape or mold your opinion for the benefit of the party paying your bill?
Q: Would you agree that whether an expert has testified one time or one hundred times, the hallmark of testimony under oath must be objectivity?
Q: Would you agree that if there is a dispute in this case with respect to who said what to whom, you won’t automatically accept as true the version of events set forth by the defense?
Q: Is there any aspect of the care rendered in this case that you disagree with/would have done differently?
Q: Nothing at all, Doctor?
5. Address Obvious Misstatements of Fact
Upon completing the preliminary questioning, point out at the start of your cross-examination any obvious and clear misstatements of fact made on direct. The jury very much wants to find the doctor credible; obvious misstatements will disappoint them to the point that the witness may never regain his credibility.
Pounce on any statement made by the expert that defies common sense or common knowledge. Jurors may not know the medicine, but they know that water flows downhill. If the expert defies common sense, he defies the collective wisdom of the jury.
6. Launch a Collateral Attack
Absent obvious and clear misstatements of fact, begin the substantive cross, if you have the ammunition, with your collateral line of attack; this will serve to immediately diminish the impact of anything said on direct that was helpful to the defense.
Collateral attacks are a good tool to begin the softening-up process. As in everything else, preparation is the key. It will do you no good to ask the witness how many states he or she has testified in if the answer is going to come back “two.” Some things to cover if you have the goods:
Q: How many states have you testified in?
Q: How many times for the same defense attorney?
Q: How many times in total?
Q: What percentage for defense/plaintiff?
Q: Have you ever testified in court that a doctor departed from accepted practice?
Be careful when asking about fees. Unless you feel certain that this witness charges what would be universally accepted as an outrageous fee, ask the following, assuming the answers were not elicited during the direct examination:
Q: As a professional, do you expect to be compensated for your time, whether in the operating room or courtroom?
Q: Would you expect the same for the plaintiff’s expert?
7. Control the Witness and the Examination
You have been in a teaching role since opening; don’t stop now. Lead, don’t follow. Cross is not the time for open-ended or why questions. Most questions should begin with “Would you agree with me” or end with “isn’t that correct?” If the court allows you to frame the questions beginning with “Do you agree with me,” as opposed to simply “Do you agree,” go for it—you’ve now firmly established yourself as the authority. Some attorneys prefer to end with “true?” But, be aware that question after question that begins and ends, in the same way, can seem stale, or even hectoring. So, change up from time to time by softening the question and modulating your voice.
Do not lead when questioning on collateral matters such as a number of times testifying or for whom. Give the witness the chance to simply answer and then pounce with impeachment material. Don’t expect the defense expert to admit a single departure, so refrain from framing questions in that way. Force the witness to admit all the postulates you can—leave the departures for summation.
Frame some questions whose answers are obvious, thereby demonstrating to the jury that you are not only in control, but that you are being reasonable. For instance:
Q: Wouldn’t you agree that it was the obligation of Dr. Jones under the standard of care to look at Mr. Wilson’s signs, symptoms, imaging studies and laboratory findings as a whole and not in isolation?
Q: Wouldn’t you agree that it was the obligation of Dr. Jones under the standard of care to recognize what signs, symptoms, imaging studies, and laboratory findings, if any, were consistent with a perforated viscus?
Q: Wouldn’t you agree that under certain circumstances a surgeon like Dr. Jones needs to have a high index of suspicion that his patient has a perforated viscus? In appropriate circumstances, demonstrate to the witness that you can’t be snowed by a blizzard of medical jargon. Oftentimes a witness may misstate or overstate a medical principle to make a point with the jury. Use that opportunity to force the witness to retreat, demonstrating to the witness that you won’t be fooled and to the jury that you and the witness are competing on equal ground.
8. Use Hypothetical Questions to Advance Your Theory
The last words the jury will hear from you before summation is the cross-examination of the defense expert. Take this opportunity, through the use of the hypothetical question, to drive home your theories. Very often the expert’s answers are not as important as the questions you ask.
Q: I want you to assume that myocardial infarction was in the differential under the standard of care. Assuming that, wouldn’t you agree with me that safe practice would have been to order follow-up cardiac enzymes?
Q: I want you to assume that Mr. Jones was in fact suffering from acute coronary syndrome when he entered the emergency department. If that is true, wouldn’t you agree with me that Mr. Jones was at risk for sudden death if he were to be discharged from the hospital without an angiogram?
Hypothetical questions can be an effective tool insofar as they can serve as mini-summations to repeatedly drive home the facts you are pressing and your theory of the case. When the expert resists—and he or she will resist—reply, “I understand you don’t think this is the case here, but assuming the truth, wouldn’t you agree that . . .”
Remember that your hypothetical need not include every fact in evidence and that you are entitled to frame your question with an interpretation of the facts most favorable to the plaintiff.
9. Get the Expert to Acknowledge Texts as Authoritative
Even the neophyte expert likely has been schooled not to acknowledge any texts or articles as authoritative, and he or she will perform an elaborate verbal dance to avoid admitting such. In such instances, the following lines of questioning may prove fruitful:
Q: Would you agree that there is a long-established tradition in medicine that recognizes that some physicians achieve a superior level of skill, or knowledge, or understanding compared to their peers in the same specialty?
Q: One way for doctors to convey their superior knowledge to other doctors is to publish in peer-reviewed articles or textbooks?
Q: Would you agree that Dr. Silversmith at Harvard Medical School is one of those with superior knowledge in the area of breast cancer?
Q: Would you agree that Jones on Diabetes is a generally reliable text, of course reserving your right to disagree with any particular statement in the text?
In response to the statement that “texts are out of date the moment they are published,” try the following:
Q: You would agree, Doctor, that if we looked at Williams, published in 2000, much of what is written there is still valid today?
Q: In order to know whether a particular portion of the text is out of date or still valid, you would have to read that portion or have it read to you, correct?
10. Confront Expert with Defense Contradictions Exploit contradictions between the defense experts and defendant and between two or more experts. Ask the expert to assume that we have had testimony in this court that [fill in the blank]. The expert will not be sure who said it. Was it the defendant, a defense expert, plaintiff’s expert? The testifying expert may tend to agree with you for fear of contradicting his own side, and if he doesn’t, you have a ready-made contradiction.
A potentially effective technique against Dr. Filibuster, if the judge will help to enforce it, is to frame the questioning at the outset as follows:
Q: I have tried very hard to phrase my questions so that they can really be answered yes or no. Will you do your best to answer my questions that way, and if you can’t, tell me so before you answer the question?
You can also use the following formulation in the midst of cross to exert control and highlight your theory:
Q: I am going to ask you some questions about cauda equina syndrome, and I think they can be answered yes or no.
Q: Right leg pain is something we can see with cauda equina syndrome?
Q: That is a yes, we can see it?
Q: Right leg weakness is something we can see with cauda equina syndrome?
A: Based on either pain or motor weakness
Q: That’s a yes?
Q: Radiating pain is something we can see with cauda equina syndrome?
A: Cauda equina, arthritis, degenerative disk disease.
Q: It is still yes?
A: It is still yes to your question.
Incorporate into your cross-examination admissions made by the defendant, to see if the witness will contradict the defendant by refusing the same admission. Suppose the defendant has admitted that the first set of cardiac enzymes in the ED were equivocal. Challenge the expert to do the same and hope you get a disagreement. At worst, you’ve made a good point twice. A way to do this might be:
Q: Would you agree that the first set of cardiac enzymes was at least equivocal?
Q: Could an objective, competent doctor come to that conclusion?
A: I don’t think so.
Q: You just testified that there is no mass at 3 o’clock on the mammogram of June 1. I want you to assume that the defendant, Dr. Jones, testified last week as follows . . .
Q: Would you agree that the mammogram of the right breast on June 1demonstrates a mass, putting aside whether it is benign or malignant?
A: Yes, I would agree there is a mass.
Q: Do you disagree with Dr. Jones’s testimony?
A: Yes, I disagree. Conversely, if the defendant is sticking to what you believe is clearly untenable medicine, put those questions to the expert with the hope that she will testify in conflict with the defendant if only to bolster her own credibility.
11. Contradict Expert with Prior Testimony
Prior testimony is gold. Jurors despise being lied to by a learned witness. They expect better, so it can be devastating to contradict the expert with his own, previously sworn testimony. You are not fully practicing your craft if you do not make every effort to obtain prior testimony through online sources such as Westlaw (www.westlaw.com) and Trialsmith (www.trialsmith.com).
Westlaw provides a list of databases you can search for transcripts by providing the expert’s first and last name. Trialsmith is considered the largest available online deposition “bank.” Searches can be run in a similar manner to Westlaw. Note that both services require a paid subscription.
Try to phrase the question to the expert in court in an exact manner it was asked in the prior testimony. You must leave the witness absolutely no wiggle room. Be sure to ask the question slowly and clearly—rushing will lessen the impact. Take your time and let the drama build. Remember: the impeachment need not be on a complicated medical issue.
Medical Malpractice Example
Q: You would agree that both neurologists and neurosurgeons diagnose spine injuries and diseases?
Q: In fact, both neurologists and neurosurgeons are equally equipped to diagnose spine injuries and diseases?
A: Absolutely not.
Q: They are not equally equipped to diagnose spine injuries and diseases?
A: They are not.
Q: Do you recall testifying in federal court, as a witness or Dr. Smith, in the case of Jones v. Smith?§ 10.24 MEDICAL MALPRACTICE IN NEW YORK
A: It’s certainly possible.
Q: On page 481 of the transcript, in that case, were you asked the following:
Q: Are neurosurgeons equally equipped as neurologists to diagnose spinal injuries and disease?
Witness: Can I look at the transcript? It looks like I did say that.
The above testimony was then hammered home with the expert’s testimony in support of the plaintiff’s case:
Q: So regardless of whether the specialty is neurology or neurosurgery, you wouldn’t want a patient with a profound spinal cord compression not to be diagnosed?
A: That’s correct.
Q: So regardless of whether the specialty is neurology or neurosurgery, you wouldn’t want a patient with a profound spinal cord compression to be discharged from the emergency department into the world?
A: You do not want to miss that diagnosis. I think that is an obvious truism.
If you can establish this type of contradiction more than once, you may be gesturing with it and then hearing the expert say, “I must have said it before, so, yes.”
12. Confront Expert with Absence of Findings or Overlooked Diagnosis
Use the record to highlight the absence of findings and then confront the expert.
Medical Malpractice Examples
Q: Dr. Jones, you told our jury that, in fact, the defendant did an abdominal exam. Can you point to a single entry in this record that, in words or substance, demonstrates an exam was done?
Q: Would a fair and objective reading of the record be that an exam was not done?
Q: In order to determine whether Mr. Jones’s inability to walk is due to pain versus muscle weakness, it would be important to observe his walk, to observe his gait, correct?
A: I would say that’s relevant.
Q: Is there any evidence in the record that Mr. Jones’s gait was evaluated in the emergency room?
A: Not that I can see right now, no. Who would find credible the doctor who didn’t even consider what now seems to have been a true potential diagnosis?
The failure to consider can be powerful:
Q: Would you agree that given the signs and symptoms here, standard practice was to consider the presence of a perforated viscus?
Q: With a family history of cardiac disease, a history of high cholesterol, and chest pain on presentation, a careful doctor would have to at least consider a myocardial infarction, true?
The phrase “consistent with,” because it allows more wiggle room than an if/then, a cause-and-effect statement, can be used effectively to elicit concessions from the witness:
Q: Would you agree that free air on the MRI was consistent with a perforated viscus?
Q: Would you agree that a pocket of fluid was consistent with a perforated viscus?
Q: So, Dr. Smith, given that free air and the presence of fluid were at least consistent with a perforated viscus, you would expect that the defendant, Dr. Jones, would have considered a perforated viscus as a possible diagnosis?
Yes would be a great answer, but the answer may come back:
A: Well, free air is consistent with many things.
Q: I understand, Doctor, but you would agree that in this setting free air is in fact consistent with a perforated viscus?
Q: Given the presence of free air, fluid, abdominal pain, and the elevated white count, you would agree that it was Dr. Jones’s duty to at least consider that a perforated viscus might be present?
13. Dealing with Difficult Witnesses
Persevere in the face of clearly evasive answers. Re-ask the question twice more, then move on if the judge gives you no help. The jury will get the point that this is a witness who is not objective.
Nonresponsive witness? An appropriate couple of questions might be:
Q: Are you having any trouble hearing my questions?
Q: Most respectfully, you didn’t answer the question. My question is….
If the witness is really obnoxious, you might ask:
Q: What was the question you were responding to?
If the witness admits a mistake, don’t gloat, smirk, or gesture—move on.
Some of your opponent’s objections will be sustained. If such happens on an important point, rephrase and press on. Do not lose your patience; the jury will admire your resiliency.
14. When to Stop Questioning or to Change Direction
Did the expert concede a crucial, perhaps trial-turning point at the outset of your exam? Consider stopping right there before she finds a way to rehabilitate herself. Should you really stop when you have so many more questions prepared? Trust your instincts—no one ever said trial work was for the timid.
Getting nowhere with the expert? Don’t stop abruptly—pivot. Ask a series of basic questions that you know will elicit agreement. Ask enough of them to leave the impression that you are in control, then stop.
15. Miscellaneous Considerations
The defense expert may be tempted to blame the patient. If there is no real issue of culpable conduct or responsibility on the part of the plaintiff, hammer home the witness’s willingness to place blame everywhere but where it belongs.
Medical aphorisms can sometimes be helpful:
• Treat the patient, not the x-ray.
• Never let the sunset on a bowel obstruction.
• When you hear the beating of hoofs, think horses, not zebras.
Do not forget proximate causation. Make the witness agree that a hypothetical departure would be, or was, a substantial factor in the outcome.
16. Wrap It Up
End on a high note if you can. In a case where the defense hotly contested the cause of death, the death certificate contained a cause consistent with the plaintiff’s theory. The death certificate was put in evidence but was not referred to prior to the cross of the defense expert. At the very end of the cross, an enlargement of the certificate was displayed for the jury, and the expert was asked the following (note that Dr. Jones was the defendant).
Medical Malpractice Example
Q: Would you please read the cause of death on the official, certified death certificate?
A: Sepsis secondary to anastomotic leak, status postgastric bypass.
Q: Would you please tell the jury who signed the official, certified death certificate?
A: It appears to be Dr. Jones.
Q: Appears to be, Doctor?
A: It was Dr. Jones.
If you can’t end on a particularly high note, don’t stress. If the overall effect of the cross is positive, the ending is less important. Remember: It is the love of combat that everyone possesses that fastens the attention of the jury upon the progress of the trial. The counsel who has a pleasant personality, who speaks with apparent frankness, who appears to be an earnest searcher of truth, who is courteous to those who testify against him, who seems to know what he is about and sits down when he accomplishes it is the one who creates an atmosphere in favor of the side he represents and is a powerful influence with the jury in reaching a verdict.
Reprinted with permission from Medical Malpractice in New York, Third Edition, Copyright 2009, published by the New York State Bar Association, One Elk Street, Albany, New York