One of the challenges I face in a personal injury case is how to handle the testimony of a doctor who has been hired by the defense team to testify against my client, the plaintiff. In almost every case, my client’s treating doctors have formulated opinions in favor of the plaintiff’s (their patient’s) case. However, the defense doctor (who will see my client for thirty minutes or so) will review the records, and formulate an opinion disagreeing with the plaintiff’s treating physicians. With very few exceptions, the defense doctor will say the plaintiff is not injured, the injuries are not permanent, and/or that the injuries were not caused by the incident giving rise to the case.
Next, the defense attorney will challenge the plaintiff’s treating physicians. He (or she) will highlight the fact that, to formulate valid opinions, treating physicians must rely on what the plaintiff is telling them. The implication is that my client could easily lie to the treating physician, and therefore the treating physician’s opinions could be based upon false information. By using this line of reasoning, the defense attorney is attempting to capitalize on the prejudice some jurors feel about personal injury plaintiffs.
Of course the plaintiff’s treating doctors have to rely on what the plaintiff is telling them; the only way to get a proper medical diagnosis is to ask the patient how he or she feels. Assessing how a patient feels is often the very first step in reaching a diagnosis. Without knowing the patient’s subjective complaints, the doctor has a very limited ability to formulate a medical opinion.
A good defense attorney will capitalize on this limitation by attempting to cast doubt on the plaintiff’s credibility. If the plaintiff has no credibility, a defense attorney will argue, then the doctor’s opinions are worthless.
As a plaintiff’s lawyer, the best way to deal with this is to make sure your client maintains his/her credibility throughout the trial. At every step of the process, from the time you initially sign up the client, inform the client of the importance of telling the truth, even when it hurts. When I counsel a client, I inform them that we win personal injury cases by embracing the truth, warts and all. We use the power of the truth to show the jury that we are on the side of justice.
Many defense attorneys will overreach as they attempt to defend their client (which is actually the insurance company, not the person sitting at the table with them). They will spin the facts, thwart the truth, and try to make an honest plaintiff look like a liar. Juries often see through this type of manipulation, and it can result in a big verdict against the manipulator.
Frankly, it surprises me that more defense attorneys have not caught on to this fallibility. While experienced defense attorneys know better, it’s often too tempting to try to attack a plaintiff’s case on all fronts- even though that type of attack can backfire more often than not. Defense attorneys would be better served by attacking the true weaknesses in the case, instead of trying to turn every element of the case into a weakness.
Another strategy for dealing with this tactic is establishing early in each doctor’s testimony that the doctor relies on his or her patients’ subjective complaints with every patient, whether the patient is pursuing a personal injury case or not. In a personal injury case, the jury has to weigh the evidence on both sides to determine which side’s evidence carries the greater weight. Greater weight of the evidence is defined as, “the more persuasive and convincing force and effect of the entire evidence of the case.” Upon skilled questioning from an attorney, good doctors will testify regarding the importance of how much weight the doctor gives the patient’s subjective complaints in determining the proper diagnosis and treatment.
Good doctors will admit that A PATIENT’S SUBJECTIVE COMPLAINTS MUST BE GIVEN A LOT OF WEIGHT when determining a proper diagnosis, because the patient is the ONLY PERSON IN THE WORLD who knows how he or she feels. No doctor can look at somebody suffering back pain and know telepathically the extent of the pain. Good doctors will admit on the witness stand that they generally will not prescribe medication without talking to the patient (if the patient is conscious and can talk). Doctors won’t do surgery without talking to the patient. Absent extenuating circumstances, doctors don’t render diagnoses or determine treatment plans without talking to the patient. All of this is true because doctor’s give a lot of weight to their patient’s subjective complaints.
So, before the defense attorney tries to downplay the importance of the plaintiff’s subjective complaints, the plaintiff’s lawyer should get the doctor to testify about the intrinsic value of those complaints. In closing argument, when arguing about the greater weight of the evidence, the plaintiff’s attorney can reiterate that if the jury is going to properly weigh the evidence, they should do like the doctors and give the plaintiff’s subjective complaints the weight they deserve.
