Cross-examining the defendant doctor: jurors have been conditioned to suspect your clients' medical negligence claims, and defendants will take every opportunity to encourage these suspicions in court. Keep them in check with well-planned and expertly executed cross-examinations.
We can't control everything that affects public opinion of lawyers and the civil justice system, but we can control our ethics, our conduct in court, and the messages we relay to jurors and the public at large. We can also influence to some degree how an antiplaintiff message affects the jury. One way to do this is by conducting a thoughtful and focused cross-examination of the defendant doctor.
Rules for cross-examination
A good cross-examination can rake many forms, but certain rules nearly always apply. Here are several:
Have a clear purpose. Create a list of areas to be covered, organized by topic and logical sequence. An example of a creative and logical (but not predictable) sequence of questions in a case of an alleged surgical error could begin with the surgery, then proceed to damages, and end with the initial office visit and informed consent.
Be sure each question has a clear purpose that is attainable without undue risk to your case. This is key. Sometimes a risk is worthwhile, but usually it isn't. Generally, the greater the risk taken in cross, the greater the chance for loss of control. Control is critical to a successful cross-examination.
Do not cross-examine a witness just because it's your turn or to show off for your partner, secretary, or spouse. Do not cross-examine because your client passes you a note that says, "Ask this ..." If you can't articulate an attainable purpose, don't ask the question.
Be brief. Plan for a concise and focused cross-examination on a few key points. The jury will respect you for being businesslike and professional and will appreciate your not prolonging the trial.
Address important points only. Don't increase the risks inherent in cross-examination by impeaching a defendant doctor on a minor point of qualifications or substance.
Sometimes, you may need to conduct a lengthy cross-examination--the facts of your case will dictate when that is so. But a lengthy cross-examination should be the exception, not the rule. When it is necessary to engage in a more time-consuming and wide-ranging cross-examination, don't prolong it by one second, one question, or one subject more than is absolutely necessary. If you must err, err on the side of shortening the questioning and the trial.
Ask short, simple questions. Questions should be direct and succinct--the fewer words, the better. Don't make the mistake of using that one extra word that might provoke a negative reaction in a juror.
An example of a short and simple question is: "Would you do it all over again?" There is no good answer to this question. A "no" answer has clear meaning. A "yes" answer indicates the defendant refuses to acknowledge his or her wrongdoing and would engage in the same harmful, negligent conduct again.
Don't ask open-ended questions. For example, don't ask, "why" questions. Closed-ended questions give you more control over the cross-examination.
As with any general rule, there are exceptions. There are times when a jury will conclude that a lawyer who asks only closed-ended questions is manipulating the process and being unfair to the defendant doctor by not giving him or her a chance to explain. So on occasion, I will ask an open-ended question. I do this when I know there is only one answer that makes sense and that any other will seem as contrived as it actually is.
For example, in a recent trial, the defendant neurosurgeon was alleged to have altered her postoperative office notes. A series of open-ended questions created an accurate impression of fairness in the examination and elicited what appeared to be, at best, evasive or, at worst, dishonest answers:
Q. What reason would you have had to go back into the plaintiff's record and change that note, knowing she was no longer your patient and that you never planned to see her again?
A. It came to my attention that the record wasn't complete.
Q. Understanding that you want your charts for your patients to be complete--even when they're no longer your patients--why wouldn't you, when you changed this record, put a note in the chart to indicate that you had made such a change?
A. Because that is not the way we do it.
Q. When you say, "That is not the way we do it," why wouldn't you print out the changed record and put a hard copy in the file so it could be a complete file?
A. Because what happens is, if there's changes that aren't complete for any reason for--example, on the day she was there, the computers weren't working so I had to put it aside to be able to do it later--and what happens is, they're put on my desk, and as I complete them, I just hand them back to be filed and they will go through, generally, and pick up that the note has been done and they print it up. "They" being the office staff, whoever is looking after it, and there will be stacks of charts like that, generally not for such a long time, but there will be stacks of charts like that, that as I do them, I get to them, and hers didn't happen until the fullness of time.
It's not clear what this last answer means. A jury intuitively perceives dishonesty in witnesses. Asking an open-ended question accomplishes the dual role of showing the jury that you are being fair to the defendant while exposing him or her as a "packaged" witness. Keep in mind that the facts will dictate when, if, and on what subject such questions can be asked.
Be careful. The defendant doctor has been primed to spread a defense message and will try to do so at every opportunity. Don't facilitate this. When the defendant doctor begins to go beyond the question to recite the defense message, don't be afraid to politely interrupt and either ask another question or ask for the court's assistance in keeping the defendant responsive to the question you asked.
Get right to the point. Take the steam out of the direct examination immediately. Quickly get to a key point--one that is indefensible and that your experts either have addressed or will address.
In one case I tried, an orthopedic surgeon had operated on a growth behind the plaintiff's knee and severed the popliteal artery. This negligence was compounded by the defendant's not recognizing that blood was flowing into the lower leg until a nerve injury had occurred.
If the defendant had released a tourniquet before closing the incision, blood spurting from the wound would have revealed the problem, allowing for immediate repair. The failure to release the tourniquet, which was required by the standard of care and would have caused no harm to the patient, is where I started my cross-examination.
Another example involved the cross-examination of a defendant surgeon who had performed a surgery for the first time on the plaintiff. Cross began this way:
Q. Doctor, when you operated on the plaintiff, had you ever before in your professional life done a bilateral tarsal tunnel surgery?
Q. Did you, before you did the surgery, ever tell the plaintiff that this was the first time that you were going to do bilateral tarsal tunnel surgery?
An alternative technique is to start cross-examination with those points helpful to the plaintiff's case that everyone has agreed on. It reinforces these points and shows that you are being cooperative and reasonable. In a recent pathology misdiagnosis trial, the examination of the defendant pathologist began as follows:
Q. Doctor, I'd like to start with a number of issues on which I think we can agree. We agree, do we not, that you diagnosed the plaintiff with lymphoma just four months after your initial diagnosis that he had Crohn's disease, correct?
Q. We also agree, don't we, that the lymphoma you diagnosed in May was actually present four months earlier, when you first diagnosed Crohn's disease and not lymphoma, correct?
Q. We also agree, don't we, that the plaintiff never did have Crohn's disease, correct?
Don't worry about winning big on every point. It isn't natural and seldom happens that you "kill" each witness on every point. The danger of such success on cross-examination of witness after witness is that it's very hard to sustain and eventually, when it doesn't happen, it can give the surviving witness's testimony-undue emphasis before the jury. The jury gets the message that the witness must have been right because the cross "wasn't so bad."
New England Patriots head coach Bill Belichick, talking about escalating football players' salaries in the book about him entitled The Education of a Coach, described a "virus of higher personal expectations." A similar principle applies at trial when a jury begins to expect repeated, devastating cross-examinations--until you deliver the one that isn't.
It may work out that each witness is profoundly impeached. But don't be disappointed if your success is more modest as long as, on balance, your cross-exams go well.
Weave your theme into the cross-examination. Repeatedly, creatively, and subtly reinforce your case theme in cross-examination. This doesn't mean you should keep repeating the actual wording of the theme.
Instead, ask questions that imply the theme without restating it. Let the jurors come to realize on their own the power of the theme. Subtlety allows a juror to achieve an acceptance of the theme that is deeper and longer lasting than simple force-feeding.
For example, "choice" is a powerful theme. It evokes the Old Testament (the choice between good and evil); personal responsibility (the defendant's choice not to take responsibility for what was done wrong); and a number of current political and social issues (for example, abortion). You can subtly, yet powerfully, present this theme by reminding jurors of the choices the defendant made, the lifestyle and other choices no longer available to the plaintiff, and the choice now available to the jury to right a wrong.
Use texts and scientific literature. These materials can help establish the scientific underpinnings of your case. This is especially critical today in view of the public's distrust of lawsuits. The texts' authors can be viewed as objective third parties who have no stake in the case's outcome.
Have your own experts establish articles or texts as "authoritative" so they can be used in cross-examination. A defendant doctor can never be counted on to acknowledge an article or its author as authoritative.
Use the defendant doctor to defeat defense arguments. In one pediatric negligence case, the defense experts claimed that the plaintiff's electroencephalogram (EEG) was hypsarrythmic--showing a strikingly abnormal brain wave pattern that indicates a bad prognosis. The defense argued that due to the underlying severity of the infant's condition, there was no "causation" between the defendant's conduct and the bad result.
My cross-examination of the defendant pediatrician was aimed at refuting this claim by using the pediatrician's own failure to acknowledge he was negligent in anyway. The doctor, in defending his own failure to respond to the EEG, testified that it wasn't hypsarrythmic. He said if it had shown such a pattern, he would have responded immediately. He testified that he wasn't negligent because the EEG really wasn't that bad at all.
That testimony aided our causation proof. If the EEG was not "that bad at all," it was not too late for him to diagnose and treat our client successfully.
Look for something good to develop. Something good can be obtained from a careful, well-thought-out cross-examination. For example, an orthopedic surgeon in one case testified that he had never been in court before. The defense wanted to portray him as a full-time treating doctor rather than as a professional witness.
One part of the cross-examination highlighted the fact that although the surgeon had practiced for many years, the first time he had ever taken the time to come to court was to defeat a patient's claim. He had never been to court to help a patient. This helped illustrate his bias against medical negligence cases.
Another example involved a surgeon's attempt to explain away a serious surgical error by testifying, "I'm not trying to use this as an excuse but ... just before surgery, I was called and informed that my son had been rushed to the hospital. I was worried about him."
My cross-examination raised two points: The defendant hadn't mentioned this alleged call anywhere in his seven-hour deposition, including when I asked him, "What happened?" Also, the defendant hadn't told our client that he was distracted by his concern for his son. This was elective surgery and could easily have been rescheduled.
Focus on the defendant's failure to communicate. One of the most common patient criticisms of doctors is the manner in which they communicate (or fail to communicate). I often hear complaints like: "He didn't explain it to me"; "She never told me about the test results"; and "He treated me like a number."
This issue strikes a responsive chord in jurors. Every juror has waited in a waiting room. Many patients have felt that their doctor has been condescending or even arrogant. Jurors may not have scientific knowledge of medicine, but they do communicate and need communication in return.
Cross-examination can reveal the defendant doctor's arrogance by pointing out the indifference he or she exhibited in not taking the time to talk with a patient. This also can be addressed later in closing argument.
Address credibility with caution. When you cross-examine on character, credibility, or qualifications, do so gently. Don't risk a line of questioning that might come across as a personal attack on the defendant, unless it is highly relevant and you are certain that you can prove the point you are trying to make.
There are many ways to expose a defendant's lack of candor or qualifications. Careful review of the defendant's resume can reveal exaggerated claims. Some doctors have more than one curriculum vitae, intended for different audiences, and one of these may have been "cleaned up"--either by addition or deletion--to emphasize certain entries. Showing this during cross-examination can produce powerful testimony.
Sometimes, a doctor's credibility can be impeached effectively when the initial question isn't aimed at that purpose but impeachment becomes possible in follow-up to the answer given. For example, in a podiatric negligence trial, I asked the defendant doctor if he heard my expert testify that the surgery the defendant had performed was "experimental." My goal was to highlight the irresponsibility of the surgery. The defendant answered that he had not heard this testimony. He testified, "No, I don't recall hearing it. When I'm sitting there, I'm flipping through notes to make important points."
This answer led to a short but damaging set of questions about his allegedly not hearing important testimony that everyone else in the courtroom had heard.
Call the defendant toward the end of trial, if at all. For many years, I called the defendant doctor as the first witness in my case. I did this partly as a reaction to the defense voir dire technique of reminding the jury that there are always two sides to every story and then asking them to keep an open mind until they heard the defense case. My thought was to start my case by presenting the defense through the lens of my cross-examination.
I might still call an especially arrogant doctor first, but my thinking on this issue has changed significantly. I now either call the defendant doctor at the end of my case, or I do not call the doctor at all.
Medical negligence cases usually last at least two weeks. So much happens in that time, so intensely, that damage done in an early cross of the defendant doctor can be dissipated or even forgotten. Also, plaintiff counsel usually cannot go over the same areas covered during any earlier cross-examination of the defendant. This means the defendant is able to address, without in-depth cross-examination, many issues that may have been raised in the weeks of trial after the initial cross-examination.
One of the last things the jury hears is the defendant's rehearsed story. Its impact on the jury is lessened if you wait to cross-examine the defendant at the end of your or the defendant's case-in-chief, which is much closer to closing argument and jury deliberations.
In a recent medical negligence trial, our proof was, in part, that the defendant doctor had changed her deposition testimony on several key issues. She was smooth and intelligent, but unlikable and untrustworthy.
We felt we could show during cross-examination that she wasn't earnest. As a courtesy to defense counsel, I had allowed the defense experts to be called earlier in our case. So the flawed defendant doctor was the last witness heard from in our case and, one day later, the last witness heard from in the defense case as well. It was clear the jury did not like or trust her.
Another way to think about this issue is to note when jurors ask questions (when allowed by the court). In our cases, jurors have asked questions later in the trial, when the defendant or defense expert was testifying for the defense. The witness's answers, not surprisingly, reflected the defense message. Jurors who asked questions felt as if the answers were "theirs" because they were in response to their questions. They basically "owned" the answers out of a sense of pride.
With these experiences in mind, we realized that if any questions were to be asked by jurors, we wanted the opportunity to cross-examine the defendant doctor about any answers he or she gave. We didn't want our ability to do this to be constrained by an earlier cross-examination.
Develop the "feel" of a good cross-examination. Cross-examination requires "feel." The pace, tone, and content of cross-examination result from an intuitive, knowing feel that comes from years of experience and preparation. One of the most obvious examples of what I am describing is the ability to exercise restraint. Knowing when to stop or what questions not to ask is crucial. Not asking the one question too many is often as important to winning a case as any creative, intelligent proof we may put forward.
Be respectful. Be polite, respectful, and fair without being deferential. Be ethical, straightforward, and almost businesslike in a down-to-earth, decent way. Above all, be genuine.
It never hurts to begin with a question that sets a courteous tone. For example, you might start your cross by saying, "If there is any question I ask you that you don't understand or if you're ever not sure what I am referring to, please just tell me and I will gladly explain or repeat the question. Fair enough?"
You can be polite and gracious and powerfully effective at the same time. There is a time and place for aggressiveness in cross-examination, but it is rarely necessary. It is a thoughtful cross-examination--not necessarily an aggressive one--that is truly devastating.
Be respectful of the jury, too. You should proceed alongside the jury in your questioning and listening--not race ahead, leaving them behind in your wake. Be consistent in this demeanor--as much as you possibly can from your first question to your last.
Be alert. A successful cross-examination requires a constant state of conscious alert. Listen attentively to the witness's answers to hear not just what is being said but also what the answers really mean. The most successful follow-up questions result from understanding the implications of the real message of the witness's testimony.
A thoughtful, measured, and professional cross-examination combines the best of intuition and preparation. Its quality may actually remain unrecognized since all eyes will be focused on the diminished aura of the departing witness.
An honest preparation and delivery can result in the cross-examination that uncovers a truth. The intelligence and integrity of such a cross-examination will be felt, consciously or not, by everyone in the courtroom.
MARK MANDELL, a former ATLA president, practices law in Providence, Rhode Island. y
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|Date:||May 1, 2006|
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