We left off in the last article Charlotte Car accident Jury Trial Part 5 discussing the cross examination of the plaintiff. Today we will discuss the examination of the plaintiff’s doctor. One of the biggest issues in a Charlotte car accident trial is proving that the car wreck caused the injury complained about. Thousands of trials a year are fought over that word, “caused.”
In every motor vehicle accident the jury will be read instructions about the plaintiff’s injuries and proving the same. The jury will be read the following instruction:
N.C.P.I. MV 106.00 Personal Injury Damages – Issue and Burden of Proof (North Carolina Pattern Jury Instructions for Motor Vehicle Negligence Cases
The second issue reads:
“What amount is the plaintiff entitled to recover for personal injury?”
If you have answered the (state number) issue “Yes” (and the (state number) issue “No”) in favor of the plaintiff, the plaintiff is entitled to recover nominal damages even without proof of actual damages. Nominal damages consist of some trivial amount such as one dollar in recognition of a technical injury to the plaintiff.
The plaintiff may also be entitled to recover actual damages. On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, the amount of actual damages proximately caused by the negligence of the defendant.
As you can see the burden of proof is on the plaintiff to prove that the damages (injuries) were “caused” by the negligence of the defendant. In plain English, did the car accident cause the plaintiff’s injuries? The easiest way to prove the accident was the cause of the plaintiff’s injuries is through the testimony of the plaintiff’s treating physicians.
There are different kinds of doctors who typically treat people following a car accident. For example, people can see chiropractors, primary care physicians, orthopedics, physical therapists, and neurosurgeons. Depending on the type of doctor the testimony will either be live or through a video deposition.
While it is always my preference to present the jury live testimony there are risk with that. For example, if you are in the middle of a trial and the treating surgeon is scheduled to testify and he is called into an emergency the judge is not going to hold him in court. The judge is also not going to give you additional time but will ask that you call your next witness. If you do not have any other witnesses you will be left holding the bag without evidence of medical causation.
The way this can be avoided is by holding a video deposition. In a video depo (for short) the lawyers make an appointment with the doctor usually at their office. Along with a court reporter we will also have a radiographer present. The doctor will be sworn in and taped while questions are answered. The Plaintiff’s lawyer will begin by asking direct exam questions followed by the defense attorney. At the trial when it is time to call the doctor the plaintiff’s lawyer puts the CD in the player and plays it for the jury.
The first thing a plaintiff’s lawyer has to do is introduce the doctor. The doctor will be asked a number of questions regarding their education, medical training, and work history. Further, if they are members of any medical societies, or specialties the plaintiff’s lawyer should discuss this as well. Typically I will have a copy of the doctors CV and admit that as evidence.
After the doctor has given background information about themselves I will tender them as an expert in what ever area of medicine they are an expert in. The defense attorney has the ability to object but typically they will remain silent at the tender. I will then ask the doctor a number of questions regarding how the client came to be a patient in their practice. Obviously ever case is different and you may need to focus on whether the client was a former patient of the doctors.
Assuming there is no prior relationship it is very important to provide the doctor with as much information as possible. Prior the deposition I will provide the treating physician with the medical records of the plaintiff. These records include all of the treatment following the accident and the medical history of the plaintiff. What I am trying to avoid are questions by the defendant’s attorney that the doctor can not give an educated opinion regarding causation unless they are aware of the plaintiff’s medical history.
As I have discussed in prior posts if you don’t provide the jury with all of the medical records (or any document) you run the risk of them thinking you are trying to hid something. There is certainly another school of thought on this issue which is that if you admit documents, specifically medical records you are inviting the defense attorney to cross exam the plaintiff and doctor on the records with impunity as well as point out possible innocent issues to the jury at closing. The point being made is that multiple people can read the same sentence and take away different things. The English language can be interpreted different ways. While this is a legitimate risk I do not think it outweighs the risk of appearing that you are hiding things from the jury. It is best practices to give everything to the doctor, understand where some possible weaknesses may be and handle those either through jury selection or direct examination.
The direct of the doctor will also cover the treatment of the plaintiff. This will include the plaintiff’s subjective complaints and the doctors objective findings. The key to get across from the jury is that the subjective complaints of the plaintiff match the objective findings of the doctor. For example, if the plaintiff is complaining of neck pain, does the doctor note muscle spasms in the neck.
We will continue the discussion of the doctors direct examination in the next article. That article will focus on the opinions of the doctor which directly influence the jury’s opinion. To discuss your case please contact us. You will speak directly with a Charlotte personal injury lawyer. You will discuss the best way to handle your case and your rights.