II Purposes of Direct Examination of Plaintiff's Doctor

• Library: The Direct Examination of the Plaintiff's Treating Physician (2017 Ed.)

II. PURPOSES OF DIRECT EXAMINATION OF PLAINTIFF'S DOCTOR

"The direct examination of your medical expert sets the framework for the entire medical case. An artful examination focuses the jury's attention on the real issues in the trial: the nature and extent of the injuries, your client's pain and suffering, causation, permanency and the plaintiff's prognosis and requirement for future medical care." Ben B. Rubinowitz & Evan Torgan, Trial Advocacy, Direct Examination of a Medical Expert, New York Law Journal (Nov. 28, 2000).

In nearly every personal injury case, it is necessary, or at least desirable, to present expert medical testimony. The plaintiff's lawyer must decide whether to hire a retained expert under Ill. S. Ct. R. 213(f)(3) and/or to rely on the expert testimony of the physicians who have treated the plaintiff for his injuries. There is no rule of thumb that dictates when only using the "treater" is sufficient. Every case is different and plaintiff's counsel must consider the value of the case and the expectation as to how helpful the treater's testimony is likely to be. In any case, the testimony from at least one treating medical professional is always helpful. The treating physician, unlike the defense's Ill. S. Ct. R. 213(f)(3) "controlled expert witness," is not a "hired gun." She is testifying because she is the doctor who is trying to help the plaintiff recover from his injuries. For this reason, the treating physician is often more credible to the jury.

The flip-side, of course, is that the treating physician may not have the same enthusiasm for plaintiff's damages claims as might a paid expert providing testimony supporting the case. For example, a controlled expert retained by plaintiff may boldly assert that plaintiff's shoulder injuries and labral tear were caused solely by the collision. The treating physician may not be so certain and may offer testimony that, while the plaintiff was asymptomatic just before the collision, he did have underlying degenerative conditions - including small micro tears of the labrum - before the collision. The treating physician may testify that in her opinion the collision was mostly the cause since it aggravated a pre-existing labral tear, making it painful (or more painful).

In either case, the testimony is helpful to the plaintiff. Both the treating physician and retained expert have established important elements of plaintiff's case. Indeed, a review of just what evidence the treating physician may be able to present in a particular case is a helpful starting point in deciding not just whether the treating physician should testify, but which of plaintiff's treaters is best suited to help the plaintiff meet his burden and persuade the jury that a substantial award is appropriate.

A. Liability

1. Defendant's Negligence

The treating physician may offer assistance in presenting evidence not just concerning damages, but liability, too. In many automobile cases, the force and angle of the impact is a question of fact that will help the jury decide whether the defendant was at fault. Perhaps the plaintiff's liability claim depends in part on proving the defendant's vehicle first impacted the plaintiff's at the front driver's side, causing a spinning movement of the plaintiff's car. This spinning, in turn, caused plaintiff's head to abruptly twist causing a particular type of injury to cervical facet joints.

Armed with this knowledge, plaintiff's counsel should be sure to elicit testimony from the treating physician that: (1) plaintiff gave a history of having been struck in the front left quarter panel sending his car into a spin; (2) plaintiff reported his head turning or twisting; and (3) plaintiff's symptoms were consistent with an injury sustained in such a collision. With the treating physician offering such testimony, she is, in essence, corroborated plaintiff's account of how the collision occurred (i.e., how/why the defendant was at fault) and how the collision was the mechanism for the particular kind of injury claimed by the plaintiff.

B. Elements of Plaintiff's Damages

1. Pain/Suffering

In establishing pain and suffering, plaintiff's counsel will offer the testimony of the plaintiff along with, perhaps, the testimony of friends, family, and/or co-workers. When presenting such evidence it is important that the jury gain a sense of what plaintiff felt - the duration and intensity of pain experienced as a result of the defendant's negligence. The testimony of the plaintiff, his friends, or his family will help explain how the pain affected the plaintiff's life activities. Still, juries don't like whiners and plaintiff's counsel does not want to overstate, exaggerate, or overly dramatize pain evidence. A good way to walk the line between offering strong evidence of pain and suffering without losing the jury's respect for the plaintiff is to have the treating physician explain the nature, extent, and duration of the plaintiff's pain. As revealed in our outline (Chapter 11), the physician's testimony may start with the simple question that may go something like this:

Q. Doctor, do you have an opinion as to whether Jon has experienced pain as a result of the injuries sustained on July 25, 2014?
A. Yes, I do.
Q. What is that opinion?
A. My opinion is that he did experience pain

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