We left off in the last article Charlotte Car accident Jury Trial Part 6 discussing the direct examination of the plaintiff’s treating physician. Today we will continue the discussion delving deeper into the opinions of the doctor and the cross examination of the doctor.
One of the most important issues in a Charlotte car accident trial is proving that the car wreck caused the injury complained about. Trials are won and lost over the word “caused.” This is why it is so important to make sure the physician is comfortable giving an opinion on causation. Certainly there are cases where the injuries are clearly coming from the accident. However, best practices dictate that the plaintiff’s personal injury lawyer give as much information to the doctor as possible to ensure an opinion on causation.
Historically lawyers had to go through different legal phrases to be able to ask the doctor to give an opinion. Years ago the doctor could only answer a hypothetical question and not the direct question of the plaintiff. Further, plaintiff’s lawyer had to ask the question in such a way as to satisfy some legal requirement. For example, it was not uncommon to ask the doctor a question like, “Doctor, as an expert in orthopedic surgery, having reviewed the medical records, have you formed an opinion satisfactory to yourself that it is more likely then not that the April 10, 2014 accident caused the Plaintiff’s herniated disk at L5 S1 for which you provided surgery?” Failure to properly ask the question resulted in objections from the other side. The courts have clarified their position on this issue and have stated there are no “magic words” which need to be asked to elicit an opinion of causation.
Is “Possible” enough? This is a common question young personal injury lawyers ask me. The cases have held that possible is enough when looking at the totality of the situation. Therefore it is incumbent on the plaintiff’s lawyer to get as much information from the doctor on what they are basing their opinion on. For example, if the doctor is basing their decision on the lack of prior complaints that needs to be noted. If they are basing their decision on the timing of the complaints to the car accident that needs to be noted. Certainly the defense is allowed and will attack an opinion that is based solely on “possible”. That said, the courts have held that it is enough to get to the jury. Whether it is enough to convince the jury is another story.
Just because the doctor gives an opinion it doesn’t mean the jury has to agree with it. Juries can agree or disagree with the doctors opinion. Typically they will disagree with it when the doctor hedges or when the doctor agrees with the defense that they don’t have all of the information available to them to make a decision. This brings us to the cross examination of the doctor.
The cross examination of the doctor will focus on the weakest part of the plaintiff’s case and the defendants best arguments. Cross is designed to score points with the jury. The defense counsel will score points. The idea is to limit any potential points on direct exam. For example, if there are conflicting statement in the records bring it out on direct. If there are issues with pre-existing conditions.
I recently spoke with a young woman who called me up following a car accident in Charlotte. She said that the accident was very minor and that she did not complain about injury at the scene of the accident. She said that two weeks went by and she started having headaches and back pain. She made an appointment with her primary care physician. At that meeting she said she wasn’t sure whether the back pain was coming from her car accident or exercise. On direct examination the doctor may give an opinion that the car accident was the cause of her back injury. On cross examination the defense attorney will attack the doctors opinion asking whether the back injury could also be coming from the exercise. Most likely the doctor will say yes. This gives the defense an argument to make at trial. On redirect I could always ask which does the doctor believe most likely is the cause and they would hopefully say the accident but the damage has already been done. Best practices dictate that damaging issues should be covered on direct. That might defuse the question.
Most doctors are loath to give concrete causation unless it is the most obvious case. The doctors are not required to give absolutes, only that it is more likely then not that the accident caused the injury they treated the plaintiff for. The defense will also attack the doctor on what they took into account in giving that opinion. They will ask whether they were aware of prior complaints or prior treatment. If the answer is no, that may cause them to change their opinion. Further, if the complaints are subjective in nature the doctor will be asked about prior subjective complaints that may be similar.
After the defense asks cross examination questions the plaintiff’ lawyer can redirect. Redirect is very important as it allows the lawyer to diffuse any issues brought up on cross. One of the most important questions deals with whether their opinion changed based on any of the questions raised by the defense attorney.
The only way to truly be comfortable deposing a doctor stems from experience. You have to know how each doctor likes to give depositions, what types of questions you have to ask them and what types of questions the defense attorney typically likes to ask. Best practices for a personal injury lawyer is to provide as much information to the doctor so they are comfortable giving you strong opinions.
In the next article we will discuss closing arguments. Closing arguments are the lawyers only opportunity to argue on the evidence and the law to the jury. To discuss your personal injury case please contact us. You will speak directly with a personal injury lawyer. The consultation is free and there is no obligation.