Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or
republication without prior permission from the publisher.
Ordinarily, the selection of the plaintiff's expert is made well in
advance of trial. Ideally, he or she has had an opportunity to review
all pertinent medical facts, and has been able to discuss them at length
with counsel. The witness, if he or she is not experienced at
testifying, should be told to not be embarrassed about this preparation,
and that if the subject of lengthy pretrial discussions with counsel is
raised by the opponent during cross-examination, to not hesitate to
admit to such discussions.
If a physician is testifying for us as an expert for the first time, we
provide him or her with a copy of the following instructions.
THE DOCTOR AS AN EXPERT WITNESS
We hope that some of the following suggestions may be of assistance to
you in testifying as an expert witness and clarify any questions you
A. REQUIREMENT OF "MEDICAL PROBABILITY"
1. The law requires that a medical expert give an opinion based only
upon "reasonable medical certainty" or "reasonable medical probability."
It is important to note that the legal definition of these phrases is
different than the medical definition.
2. In law the two phrases are identical in meaning. The legal definition
of the two phrases is simply that the doctor must feel that the opinion
is more likely than not accurate. For example, if the doctor is asked,
based upon the reasonable medical certainty, whether the injuries were
the result of the accident, the doctor need only feel that the accident
was "more likely than not" the cause of the injury claimed in order to
3. The law makes a legal distinction between "possibility" and
"probability." Opinions based upon possibility are not necessarily
admissible. Therefore, if the doctor uses any of the following phrases
in connection with his or her opinion, such testimony may be stricken by
(1) It "might be" true.
(2) It "is possible."
(3) It "might have" that effect.
(4) It "could have" that effect.
4. While there must be more than a bare possibility, the law does
recognize that a degree of uncertainty is present in almost every
medical opinion. Our court has said: "It is consistent for a doctor to
admit an element of speculation and still be convinced that an accident
is more likely than not the cause of the injury." Also, "circumstantial
evidence" is usable.
B. TESTIMONY REGARDING HISTORY OF PATIENT
1. The law allows a doctor who sees a patient for the purpose of
examining or treating the patient to tell the jury what history the
patient gave and to relate any subjective complaints or findings of the
C. EXPLAINING MEDICAL TERMS
1. It is important that the medical expert explain the use of medical
terminology, like "loss of lordosis" or "scoliosis," as these things are
foreign to the knowledge of the jury.
D. PROOF OF MEDICAL NEGLIGENCE
1. In a medical negligence case, the law requires the plaintiff to show
the following things in order to recover a verdict:
(1) That there is a standard of care and skill expected of the average
medical practitioner acting under the circumstances involved in the
(2) That the defendant physician failed to meet this established
standard of care applicable.
(3) That the defendant physician's failure to meet this standard of care
caused the injury to the patient.
(4) Application of the doctrine of res ipsa loquitur ("the thing speaks
E. HYPOTHETICAL QUESTIONS
1. The law requires that a physician who does not have personal
knowledge regarding the patient or the occurrence must give his or her
opinions by hypothetical questions. A hypothetical question is one that
asks the doctor to assume certain hypothetical facts and express an
opinion based upon those facts contained in the question without
specifically referring to a particular patient.
2. The law requires, with regard to answering hypothetical questions,
(1) The witness base his or her answer on the facts contained in the
CROSS-EXAMINATION OF THE MEDICAL EXPERT
A. "YES" AND "NO" QUESTIONS
1. If a question is phrased so that only a yes or no answer is expected,
the witness must answer the question but has the right to explain the
answer after answering. If the medical expert feels that he or she
cannot answer a question yes or no, the witness has a right to respond
that the question cannot be answered yes or no. If the witness feels a
yes or no answer requires an explanation, the witness has the right to
ask the judge whether he or she might explain.
B. ATTACK ON QUALIFICATIONS
1. Defense attorneys will sometimes attack the medical expert's
qualifications to offer an opinion or to treat a particular type of
medical problem. Questions suggesting that a specialist in the field
would be in better position to treat the patient or give an opinion on
the matter are not uncommon. The law, however, does not make a
distinction as to the qualifications of an expert physician based upon
medical specialties. Experience and training carry great weight as to
the qualifications of a witness.
C. ATTACK THROUGH BOOKS OR ARTICLES
1. Some attorneys may use medical books or articles in an attempt to
contradict the testimony of the expert physician. The approach is to ask
whether the witness agrees with the statement found in some prestigious
medical literature. The statement, of course, contradicts the previous
testimony of the witness.
2. Remember that before this procedure can be used, the medical expert
must recognize the book as authoritative in its field or a standard text
in the medical field. If the medical expert does not so recognize the
book or article, the cross-examining lawyer may not read from it. Only
if the medical expert recognizes the book or article as authoritative in
the field and "relies" upon it should he or she so admit it.
3. Even so, the medical expert has the privilege of disagreeing with the
opinions of the most eminent specialists, particularly where the witness
is referring to a specific patient about whom the witness has a great
deal of information, and the book or article is speaking in
D. ATTACK BASED ON PERSONAL INTEREST IN CASE
1. On some occasions the doctor may be attacked for being personally
interested in a patient who has been a patient of many years standing.
The best rule is to answer the question fully and frankly since sincere,
frank testimony registers with the jury.
2. On some occasions the doctor may be questioned as to an interest in
the case if the patient's bill has not been paid; the implication being
that the doctor is assisting the patient to get a recovery in order to
see that the bill gets paid. Even though the question is insulting, the
doctor should answer forthright and calmly.
3. The doctor may be asked about his or her fee for testifying in court
with the implication that the doctor is a "paid witness." A reasonable
answer is that you intend to bill based upon the amount of time involved
in testifying as an expert in the case. No jury is going to consider
that improper unless the amount is excessive.
E. FLATTERY TECHNIQUE
1. Many lawyers attempt to mitigate the effect of the injuries by what
is called the "flattery technique." Such questions as "Doctor, you
obtained a marvelous result with regard to your treatment" and the like
are used. Keep in mind that the purpose of such questioning is to
mitigate the extent of injuries. Also remember that at times a good
functional result is obtained but yet serious injuries or disability
F. "IT IS TOO EARLY TO TELL" TECHNIQUE
1. Another common technique on cross-examination is to suggest that
opinions regarding the future are speculative because it is too early to
tell. Suggestions that there will be improvements are likewise made. The
questions are always framed in terms of 100% certainty. For example,
"Doctor, are you 100% certain that this patient will not make some
improvement?" "Isn't it possible, doctor, that there will be
2. Obviously, no one can predict the future with 100% accuracy, but the
law does not require such a test. The test is whether it is "more likely
than not" in the doctor's opinion that these conditions will continue to
exist. On the other hand, if the question can be answered with 100%
certainty, be sure to give that answer.
G. ATTACKING THE DOCTOR'S OPINION GENERALLY
1. The main attack on cross-examination will be the defense attorney's
attempt to quarrel with the diagnosis and treatment. There are various
ways of doing that. Some of the most familiar are:
(1) The doctor based the diagnosis on purely subjective complaints.
(2) The doctor didn't have the complete and accurate case history.
(3) The doctor didn't know that this plaintiff once had a prior injury.
(4) The plaintiff could be feigning or malingering and the doctor did
not give any tests to rule out malingering.
2. The defense attorney's approach also may be that the symptoms are due
to causes other than medical negligence or that some disease syndrome is
giving rise to the various effects.
H. ATTACKING THE HYPOTHETICAL ANSWER
1. If the hypothetical answer has been given, several well-known cross-
examination techniques will probably be used.
(1) Two Schools of Thought. The suggestion is made that there is no real
uniform view on the particular matter but that there are, in fact, two
substantial schools of thought in medicine on the subject. If this is
true, there is no true standard of care and there can be no liability
under such circumstances. A similar question asked is "Isn't there a
'respectable' minority" who would follow the actions that the defendant
physician followed in this case?"
(2) Matter of Judgment. The approach here is to suggest that medicine is
not an exact science and there is much judgment involved in treatment;
that the defendant doctor's actions were simply a matter of judgment on
his or her part. The suggestion is that it falls in the gray area of
judgment where there are no true standards as to what ought to be done.
(3) Not What the Witness Would Have Done. Another attempt is to show
that the witness is simply saying that he or she personally would not
have done what this defendant doctor would have done. Again this is an
attempt to show that there are no real standards involved, but that
simply the doctor personally disagrees. The test is whether the
standards of medicine in that area are contrary to the actions of the
defendant doctor, not what the personal approach of the witness might
(4) Attacking Assumptions Made. Here the approach is to show that the
witness has answered the question based solely upon the facts assumed in
the question. Therefore, if any of the facts are incorrect, the doctor's
whole opinion must be incorrect. The cross-examiner then proceeds to
attempt to show certain facts that have been assumed are not really
accurate. The witness must be careful in answering this question to be
sure that the specific fact referred to is a crucial fact that might
change the opinion if it were different.
(5) Different Assumptions. The cross-examiner will invariably ask the
witness to assume different facts than were originally contained in the
hypothetical question and to express an opinion. This is permissible and
the purpose is that the cross-examiner will assume all of the facts
favorable to his or her case and ask the doctor to express an opinion.
The doctor should be prepared to express opinions based upon facts
favorable to the plaintiff and to express opinions based upon facts
favorable to the defendant. Particular attention must be paid to the
facts that the witness is being asked to assume however.
(6) Even if Due Care Same Result. Another approach commonly used is to
ask whether it is not true that even where due care and skill is being
exercised do not these results sometimes occur. The purpose of this
question is to show that "it was just one of those things."
1. UNDERSTAND THE QUESTION before you attempt to give an answer. You
can't possibly give a truthful and accurate answer unless you understand
the question. If you don't understand, ask the lawyer to repeat it. Keep
a sharp lookout for questions with double meaning and questions that
assume you have testified to a fact when you have not done so.
2. DO NOT LOOK AT THE LAWYER FOR HELP when you are on the stand. You are
on your own. You will not get any help from the judge either. If you
look at the lawyer for your side when a question is asked on cross-
examination or his or her approval after answering a question, the jury
is bound to notice it, and it will create a bad impression.
3. DO NOT FENCE OR ARGUE WITH THE LAWYER on the other side. The lawyer
has a right to question you, and if you engage in smart talk or give
evasive answers, the judge may reprimand you. Don't answer a question
with a question unless the question you are asked is not clear.
4. DO NOT LOSE YOUR TEMPER no matter how hard you are pressed. Lose your
temper and you may lose the case. If you lose your temper, you have
played right into the hands of the other side.
5. BE COURTEOUS. Being courteous is one of the best ways to make a good
impression on the court and jury. Be sure to answer, "Yes, sir" and "No,
sir" and to address the judge as "Your Honor."
6. IF ASKED WHETHER you have talked to the lawyer on your side, or to an
investigator, admit it freely. Remember you are not getting paid for
your testimony, you are being reimbursed for the time you lose and your
7. DO NOT BE AFRAID to look the jury in the eye and tell the story.
Jurors are naturally sympathetic and want to hear what you have to say.
Look at them most of the time and speak to them frankly and openly as
you would to a friend or neighbor.
8. GIVE A POSITIVE ANSWER when you can. If you were there and know what
happened or didn't happen, don't be afraid to "swear" to it. You were
"sworn" to tell the truth when you took the stand.
9. UNDER THE LAW this case must be tried without the jury being advised
as to whether any party is covered by liability insurance. Therefore, do
not mention insurance in any way. Do not use the words "insurance,"
"insurance agent," "insurance adjuster," "insurance investigator," or
any similar words, and do not identify any person as an "adjuster." All
of the attorneys know about this rule and they will not ask you any
questions that require you to violate the law in giving your answer.
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