THE CROSS EXAMINATION OF THE MEDICAL WITNESS

I. Why is this so important?

a. Can’t win every case on liability.

b. Primary defense may be that Plaintiff was not injured or is exaggerating the
nature and extent of his injuries.

c. Although course materials are designed for a LIST (Low Impact Soft Tissue)
case, most of the techniques will work for any case. I will point out where the
examples are dated.

d. Designed for cross examination at trial. But can be useful in discovery

depositions.

II. Defending the direct examination.

a. Object to improper questions. Preserve your record on appeal.

b. Make plaintiff lay the foundations. Don’t stipulate to anything unless there is
something in it for your client.

c. Look at the doctor’s file no later than before your cross examination. Don’t
assume you received everything in the response to your records subpoena.

III. Cross examination – locking the doctor in.

a. What is not in the records is often as important as what is in the records. Ensure
that the jury knows:
1. The doctor has limited, if any, recollection of the plaintiff;
2. The Doctor must rely upon his notes of the prior visit when treating the
plaintiff;
3. The Doctor incorporates all subjective complaints and objective findings
in his notes.
4. Ensure that the jury knows the difference between subjective complaints
and objective findings. Is a range of motion exam subjective or objective?

IV. Using the doctor’s records – Establish there is no objective proof that Plaintiff was
injured.

a. Anything in the records that shows Plaintiff was not hurt – use it. No spasms;
strength tests; Straight leg raise; vital signs; no pain medication.

b. X-ray results – common misconception that x-rays are useful to show only broken
bones. Looks for no prevertebral swelling; normal cervical/lumbar lordosis.
V. Glorified soft tissue – Bulging and Herniated Discs.

a. Establish that they are often caused by the aging process.

b. Dermatomes. Absent the complaints being in a dermatomal distribution, the

symptoms are not coming from the disc.

VI. Impeaching with other treaters medical records.

a. Lay the proper foundation. Wilson v. Clark, 84 Ill.2d 186 (Ill. 1984); Jager v.
Libretti, 273 Ill.App.3d 960 (1st Dist. 1995).

b. If going to stipulate to the admission of the medical records, demand that any
opinions be excluded. Polk v. Cao, 279 Ill.App.3d 101 (1st Dist. 1996)

VII. Prior injuries.

a. Relevant if Plaintiff is claiming an aggravation of a pre-existing condition. Janky

v. Perry, 343 Ill.App.3d 230 (3rd Dist. 2003). Or if the prior injury was close in
time to the occurrence that is the subject of the lawsuit. Felber v. London, 346
Ill.App.3d 188 (2nd Dist. 2004)

b. Prior injuries are relevant on the issue of credibility if Plaintiff denied any prior
injuries to the doctor. Kayman v. Rasheed, 2015 IL App (1st) 132631.

VIII. Establish the doctor’s bias.

a. Deflects the cross examination of your expert;

b. Important for the jury (and you) to know the relationship between the “treating
physician” and Plaintiff counsel.

c. Establish how much the “treater” is being paid for his testimony and how it
greatly exceeds his fee for treating patients; that he is being paid by Plaintiff
counsel; how frequently he testifies; that his bill remains unpaid; that he has a lien
for his services.

d. These questions are entirely appropriate for the cross-examination of treating

physicians. Kim v. Evanston Hospital, 240 Ill.App.3d 881 (1st Dist. 1992).

e. Defendant’s are absolutely entitled to this information. If the doctor refuses to

say, or claims he doesn’t know, that is reversible error. Washington v. Yen, 215
Ill.App.3d 797 (1st Dist. 1991).

f. If the doctor completely goes your way on cross, you may forego these questions.