XI Creating the Outline

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

XI. CREATING THE OUTLINE

Deborah Kuchler summarizes the preparation of the expert witness as follows:

The care, preparation and direct examination of expert witnesses can be a tedious task. The practice of most attorneys is to brief the expert on what he will opine in court and discuss a brief synopsis of his or her background information and education. However, a diligent attorney can maximize his or her possibility of prevailing on the basis of the expert's testimony alone, if the attorney cautiously adheres to the four-step process for the direct examination of witnesses: (1) qualifying the expert; (2) establishing a basis for his or her opinion; (3) eliciting the opinion; and (4) explaining the opinion. Deborah D. Kuchler, An In-Depth Look at Direct Examination of Expert Witnesses, Trial Tactics.

The outline should set forth the proper chronology for all major areas of inquiry. The outline must begin with the physician's qualifications and thereafter address the examination and treatment of the plaintiff. Questions concerning the doctor's important opinions and the reasons for those opinions should be posed only after the physician has offered an explanation of the anatomy relating to those opinions.

The plaintiff's attorney must review the basic goals of offering testimony from the treating physician in your client's case. Again, the goals may include the following:

1. Additional Evidence of Defendant's Fault. To corroborate plaintiff's account of how the collision occurred. Pursuant to Ill. R. Evid. 803(4), the treating physician should be permitted to testify as to the plaintiff's account of the collision, an account which may support the assertion that the defendant was at fault.

2. To Prove Causation. The treating physician may be able to present persuasive evidence that the plaintiff's medical problems were caused by the occurrence.

3. Damages. The treating physician's testimony may also be used to present testimony of the plaintiff's pain and suffering, loss of normal life/disability and the cost of medical care, and other important medical elements of your client's damages.

What follows may be a helpful guide to prepare your outline. It shows a typical chronology of the physician's direct examination and incorporates example questions and answers. In your outline, prepare for your specific case. Depending on the case, and your witness, you may have to use a different order of questions and may have to include areas of inquiry especially applicable to your plaintiff.

A. Outline of Direct Examination of Treating Physician

1. Preliminary/Qualifications

Try to make this otherwise dry information interesting. If the witness has a particularly impressive part of her background, ask her to discuss some specifics about this aspect of her background. Always be sure to ask about:

A. Name/Occupation;
B. Length of practice;
C. Current specialty;
D. Education- College, Medical School Residency, etc.;
E. Licenses;
F. Board Certifications;
G. Describe Practice;
H. Hospitals at which the Doctor is on staff;
I. Teaching positions;
J. Publications; and
K. Special experience.

2. Doctor's Relationship to Plaintiff

A. How Doctor knows Patient;
B. How long Doctor has treated Patient;

C. Purpose of first visit after collision [the purpose of this question is to establish that the Patient visited the Doctor for treatment, not to procure opinions for case]; and
[If pre-existing conditions are an issue and physician can offer testiimony minimizing gravity of pre-existing condition. . .]
D. Absence of treatment/complaints relating to condition caused by collision.

3. Use of Anatomical Model

A. Hand model to Doctor;
B. Establish anatomical correctness;
C. Establish that the model will help the witness during their testimony; and
D. Allow Doctor to use the model to explain the anatomy relevant to the case.

4. The First Visit

A. When and where;
B. Why;
C. Whether the Doctor took a "history";

1. What is a history?
2. How is a history helpful to physician?

D. What history did Patient provide;
E. Description of relevant symptoms;
F. Physical exams administered by the Doctor during these visits;

1. Describe physical exam/purpose of each exam;

2. For each exam/test, describe findings; and

(a) Explain difference between "affective" and "subjective"

3. State "significance" of findings (or, better, ask why a particular symptom was "important"

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