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Cross Examination of Opposing Medical Expert Can Make or Break Your Case. Learn What Happens if You Fail to Keep an Expert Witness on a Short Leash

I don't mean literally.

Nobody is attaching a dog leash to a medical expert at trial.

That would be ridiculous.

But the imagery is the same.

When you walk a dog, it is imperative that you control him.

You control your dog with words.

You also control him with a leash.

The more slack there is in the leash, the more trouble your dog can get into.

If you keep your dog on a tight leash, he has little wiggle room to roam off on his own.

Let's switch gears now and apply this analogy to the courtroom.

Let's say this is a medical malpractice trial.

The defense has just finished questioning their own medical expert.

The defense attorney sits down with a satisfied look on his face.

The judge says you may begin your cross examination.

You get up to start cross-examining this smart and savvy medical expert.

Within two minutes, you've lost full control of this expert.

This defense expert is giving long-winded answers to every question you ask.

No matter what you ask, he's got a smart answer that actually makes sense.

You are not scoring ANY points.

You are not in control of this cross examination.

You start arguing with the doctor.

You're quickly frustrated.

You can't get a straight answer from this savvy expert.

You want him to answer just yes or no.

Instead, this doctor gives a five minute explanation why he can't answer yes or no.

Then he proceeds to explain in simple words, why you have no case.

This guy is destroying you.

One answer at a time.

He's destroying your credibility.

He's making you look like an idiot without actually coming right out and saying it.

You feel your case is slipping away.

Fast.

All because this opposing expert has taken advantage of your inexperience.

Guess what?

If you're not prepared for cross examination, then the defense's medical expert has every right to exploit your weakness.

The expert's goal is to tell the jury why you have no valid case.

Your job is to show that this expert lacks credibility.

As an alternative, your job is to get this expert to bolster some or all of your claims.

There are many strategies to accomplish your job.

However, if you fail to control this opposing witness, you will not be able to employ any of these strategies successfully.

Let's go back for a moment to my headline.

"You've got to keep the expert on a short leash."

If you don't, he'll roam around and destroy your case.

Again, I don't mean that you walk up to the expert during cross examination and put a collar and leash on him.

That would be ridiculous.

That might be fun to do, but we're not talking literally here.

Instead, I mean that you MUST control him when he answers YOUR questions.

HOW do you actually control this witness?

HOW do you keep him on a short leash?

HOW can you show the jury that YOU are in control?

To do that, you MUST get the expert to make you some promises.

At the very beginning of your cross examination.

If you fail to do that, you WILL lose control of this witness.

He WILL roam around on his own.

He WILL generate sympathy for the defense.

Ultimately, you MAY lose the case if your cross examination is ineffective.

STRATEGY #1

To learn these strategies, I invite you to watch the quick video below, then keep reading under the video...

As soon as you get up to cross examine the doctor, you must get him to promise you a few things.

"Doctor, I'm going to ask you a series of questions that call for a yes or no answer. If you can answer the question yes or no do you promise to answer just yes or no?"

He has to say yes.

Otherwise, he looks silly.

You're setting the ground rules for your upcoming questions.

You haven't asked him anything of substance yet.

If he's been on the witness stand before, he'll know what's coming.

The defense attorney will have prepared him for your withering cross examination.

However, not all defense lawyers prepare their experts for these seemingly innocuous ground rules BEFORE you start asking real questions.

"Doctor, if you do not understand my question, do you PROMISE to tell me that you don't understand the question?"

Again, he has to answer "Yes."

"If you don't understand my question, do you promise not to give me any explanation about WHY you don't understand my question?"

Again, he has to say "Yes."

Otherwise, he looks unreasonable.

"Doctor, if you can't answer my question, do you promise to tell me that you can't answer my question?"

"If you can't answer my question do you promise not to give me an explanation about WHY you can't give me an explanation?"

Again he has to say "Yes."

"Doctor, if you don't know the answer to my question, do you promise to tell me you don't know the answer without giving me any explanation?"

I don't want the doctor to EXPLAIN ANYTHING.

EVER.

Remember, this is cross-examination.

The moment I ask the doctor to explain an answer, I've lost control of this witness.

He'll go on and on for ten minutes explaining why we have no case.

"Doctor, if I ask you to explain, you promise to explain?"

This way I look like I'M not being unreasonable.

Why am I asking the doctor to promise me these things?

Why is it important that I establish these ground rules before I begin asking the doctor a single substantive question?

Simple.

I want him to answer ONLY my question.

I don't want to give him ANY opportunity to answer my question the way HE WANTS to answer it.

These promises will keep this opposing medical expert on a very short leash as he tries his best to wiggle out of it with every answer.

The ONLY way these ground rules will work is if I ask short, leading questions.

Since this is cross examination, the witness is considered a 'hostile' witness.

That doesn't mean he's yelling and screaming at me...although that has been known to happen.

A 'hostile' witness is simply an opposing witness.

His interests are adverse to ours.

His agenda is different than ours.

His conclusions are different than ours.

His goal is different than ours.

Since he is technically a 'hostile' witness, I am permitted to ask him leading questions.

Leading questions are nothing more than making a statement and getting him to either agree with it or not.

Leading questions NEVER call for the doctor to explain ANYTHING.

EVER.

To learn why I can ask a doctor short leading questions during cross examination, I invite you to watch the video below and then continue reading under the video...

Here's an example of leading questions...

"According to the medical records, Dr. Gold saw Mrs. Jones on January 1, correct?"

That question calls only for a yes or no answer.

There is no explanation required.

"On January 1, Mrs. Jones presented to Dr. Gold's office complaining of a lump in her right breast, correct?"

Again, this calls only for a yes or no.

No explanation needed.

"Doctor, when a patient complains of a breast lump, good medical practice requires that the doctor perform a physical examination, correct?"

This calls only for a yes or no answer.

He may argue that taking a patient history would be the first thing to do.

BUT, I didn't ask anything about taking a history yet.

Since the doctor has now exceeded the boundary of our ground rules, I must let the jury know that he just stepped outside of his agreed-upon boundary...

"Doctor, a few minutes ago you made me certain promises, correct?"
"Yes."
"You promised me that if I ask you a question that calls only for a yes or no answer, you will answer yes or no, correct?"
"Yes."
"Great. You also promised that if you didn't know the answer, you'd tell me you didn't know, without giving me any explanation, correct?"
"Yes."

"Well, just now I asked you this question...Doctor, when a patient complains of a breast lump, good medical practice requires that the doctor perform a physical examination, correct?"
"Yes."

"Rather than answer my question yes or no, you gave me an explanation about patient history, correct?"
"Well, patient history is important because you..."
"Doctor, let me stop you here. When I asked, when a patient complains of a breast lump, good medical practice requires that the doctor perform a physical examination," can you answer that question yes or no?"

"Yes, I can."
"Great. What's your answer Doctor?"
"Yes."

"Excellent. Moving on now..."

"Doctor, you'd agree that when a patient complains of a breast lump it's important to take a thorough medical history, correct?"
"Yes."
"You want to know how long this condition existed, correct?"
"You want to know how it first started, right?"
"You want to know how the patient first noticed it, true?"
"You want to know where the patient felt the lump, right?"
"You want to know whether the patient felt the lump move, correct?"
"You need to know if the lump stayed in one place, true?"

These are all leading questions.

They only call for yes or no answers.

No explanations needed.

If the doctor tries to explain ANYTHING, I immediately bring him right back to those promises he made me at the very beginning of my cross examination.

Just in case you were wondering, the doctor has already spent hours explaining his answers when the defense attorney asked him questions during his direct questioning. In addition, after I am done questioning the doctor, the defenes lawyer will again have an opportunity to ask his medical expert open-ended questions to again explain some of his answers.

Let's get back to my cross examination...

"A physical examination would require the physician to palpate the breast, true?"
"He'd do this examination while the patient was lying down, correct?"
"He'd also do this examination while the patient was sitting up, correct?"

"Would you agree that a physician who fails to obtain a thorough, detailed medical history, violates the basic standards of medical care?"

"Well, not necessarily. It all depends on how you define thorough or detailed."

"Doctor, do you remember the promises you made to me at the beginning of my cross examination?"
"Yes."
"You promised to answer my questions yes or no, right?"
"Yes."

"Can you answer this question yes or no?"
"No, I can't."
"Ok. When I asked that question, was there anything in my question that called for an explanation?"
"Umm, no."
"Ok. Just to be clear, when I asked whether you'd agree that a physician who fails to obtain a thorough, detailed medical history, violates the basic standards of medical care, you can't answer that yes or no, correct?"
"Correct."

"Doctor, would you agree that good medical practice requires a physician obtain a medical history when a patient presents with a complain of a breast lump?"
"Yes."

"Would you agree that a physician who FAILED to obtain a history in light of a complaint of a breast lump, violates the basic standard of medical care?"

He has to say yes.

Otherwise he looks unreasonable.

He's going to try to wiggle out of this one.

He'll argue about what type of history needs to be obtained.

He'll argue about what constitutes a complete or thorough history.

He'll want to argue about the patient not providing full detailed information rather than placing blame on the doctor for not asking the right questions.

To learn the key question an attorney needs to know in a failure to diagnose breast cancer case, watch the video below, then keep reading under the video...

You'll also notice that up till this point, the doctor has been on a VERY SHORT leash.

I'm not allowing him the opportunity to explain ANYTHING.

By asking ONLY short, leading questions that call for yes or no, I am limiting him to how he answers.

This is highly effective IF done correctly.

The moment you slip up and ask the doctor "Why did Dr. Gold not perform a physical examination of this patient," you're dead in the water.

This expert will catch your mistake and take ten minutes to tell the jury that what Dr. Gold did was perfectly ok. He'll explain that this is no big deal. Then he'll claim that you and your expert are barking up the wrong tree.

If this expert is believable, you could easily lose your case by allowing him to talk and explain.

An experienced trial attorney will NEVER ask a hostile witness these questions...

HOW,

WHY,

TELL US MORE,

EXPLAIN PLEASE.

These all get the witness to again open up and show his expertise to the jury.

You've just given the expert lots of slack in his 'leash' with the jury.

Now, he's free to roam.

That roaming will only get you and your case in trouble.

Big trouble.

Instead, you hold that leash tight.

Very tight.

You don't let it go.

You show the doctor and the jury who is in control of your cross examination.

You get the doctor to either agree with you or disagree.

"Doctor, would you agree that good medical practice requires that a patient who complains of a breast lump needs a biopsy?"
"Yes."
"The reason why is because that lump may be cancerous, correct?"
"Yes."

"Either the doctor performs the biopsy himself, or he sends the patient to a breast surgeon for biopsy, correct?"
"Yes."
"Would you agree that if the treating doctor does not perform breast biopsies, good medical practice requires he send the patient to a breast surgeon to get this done?"
"Yes."
"Would you agree that failing to refer the patient to a breast surgeon for a biopsy would be a violation from the basic standards of medical care?"

The expert is going to want to argue with me about the wording of that question.

Ultimately, he'll have to answer it.

He has to agree.

"Doctor, would you also agree that when a patient complains of a palpable breast lump that good medical practice requires you to send the patient for a breast sonogram?"
"Yes."
"Would you agree that failing to refer the patient for a breast sonogram in light of a palpable breast mass would be a departure from good medical care?"

Again, he has to agree, even though he won't want to.

"Doctor, in this case, is there any medical note to confirm that Dr. Gold obtained a medical history on January 1?"
"Well, there's no note for that date but Dr. Gold testified at his pretrial deposition that..."
"WAIT, Doctor. STOP!"

"Do you remember at the beginning of my questioning you promised to only answer yes or no to my questions?"
"Yes."
"Great. Was there anything I asked in my last substantive question that called for an explanation?"

He has to say no.

"Doctor, I'll ask my question again..."
"Was there anything in Dr. Gold's note from January 1 to indicate that he obtained a medical history from the patient?"
"Uh, no."
"Based upon your prior testimony today, you agree that failing to obtain a medical history from a patient who complained of a palpable breast lump would be a violation from the basic standard of medical care, correct?"

He won't want to give in so easily on this question.

He'll have to though.

It may take some reminding him of his initial promises and what he already testified to.

"Doctor, in reviewing Dr. Gold's notes, did you see anywhere that he referred the patient to a breast surgeon for a biopsy?"
"No."
"Would you agree that Dr. Gold does not perform breast biopsies?"
"Yes, he said that himself."

"Knowing the Dr. Gold doesn't perform breast biopsies and that the patient had a palpable breast lump in her right breast, would you agree that failing to refer her out to a breast surgeon for a biopsy would be a clear violation from the basic standards of medical care?"

Again, he will want to argue over specific words.

The bottom line, after bringing him back in line using his own promises at the beginning of my cross examination has to lead to him answering 'yes'.

These are just a few strategies, that if implemented correctly, can be a very powerful tool in controling the defense's medical expert during cross examination.

To learn about my best cross examination ever, I invite you to watch the quick video below...

Have questions about your matter that happened here in New York?

I invite you to call me. I can answer your questions. This is what I do every day and would love to chat with you.

You can reach me at 516-487-8207 or by email [email protected]

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer