Undermining Defense Doctor Concerning Cause of Herniated Intervertebral Disc

surgeon-3-391477-m.jpgHerniated intervertebral discs can have significant medical and legal consequences. The symptoms of a herniated disc can range from minor pain all the way up to unbearable, unremitting pain, paresthesia, and numbness. Treatment options include palliative medicine, physical therapy, epidural injections, and surgery. Each of these option can be costly and none is guaranteed effective. A herniated disc can also limit one’s ability to work.

Discs herniate through degeneration, a lengthy process, and acute trauma. A disc compromised by degeneration is more likely to herniate from trauma than one that is not. The personal injury and workers’ compensation legal systems do not compensate for herniations caused by degeneration only. They are supposed to compensate for herniations caused solely by trauma, and will sometimes compensate for herniations superimposed on degeneration, referred to as an aggravation of a preexisting condition. (For an understanding of how the two systems handle aggravation injuries, consider Florida Standard Jury Instruction 501.5a, for civil cases, and this article, for workers’ compensation.

In civil cases, a defendant responsible for causing a herniated disc can be liable in damages which include medical expenses, lost wages (past and future), and pain & suffering (also known as non-economic damages). In workers’ compensation, the employer/carrier can be liable for medical expenses and lost wages; compensation for pain & suffering is not available in the workers’ compensation system.

The costs associated with a herniated disc can be significant, even in the hundreds of thousands where a spinal fusion is involved. As a result, civil defendants and workers’ compensation employers/carriers fight to limit their financial exposure.

A common defense method is to use doctors who will testify to one or more of the following:

  • There isn’t a herniation
  • If there is a herniation, it was not caused by the accident (e.g., it preexisted the accident)
  • The herniation is asymptomatic or not causing the level of pain being complained of by the Plaintiff/Claimant
  • The various treatment options, including surgery, are not indicated now or in the future
  • The herniation should not prevent the Plaintiff/Claimant from working full duty

The defense doctor’s testimony must be challenged. As with the questioning of any expert under oath, the most important rule is to be prepared. For me, at least, that means going over the doctor’s report with a fine tooth comb for weaknesses and inconsistencies, keeping in mind that what isn’t said is often as telling as what is said. At the beginning, I may feel stumped. However, with enough thought, even of the subconscious type, something always comes to mind. This is why I like to begin the process well in advance of the interrogation. Digesting and mulling works wonders.

While every doctor must be interrogated on the particular facts of the case, certain standard lines of attack should always be considered.

Records Reviewed. On the issues of causation and consequence, a doctor should review all of the pertinent medical records, including MRI and x-ray images, and testimony. Defense doctors rely on defense attorneys to provide them with this information. What they often receive is less than complete. I recently cross-examined a defense doctor who opined that our client’s large disc herniation was caused by degeneration and preexisted the accident. The herniation was confirmed by an MRI taken one month after the accident. Our client’s treating orthopedic surgeon concluded that the herniation was accident-related, and that a laminectomy and a fusion surgery were required to repair and stabilize the spine. He mostly formed this opinion from personally reviewing the MRI films. In contrast, the defense doctor, who had not performed any type of back surgery in more than 35 years, had not reviewed the MRI images because they were not provided to him. Instead, he relied solely on the radiologist’s report, which was silent on a key element considered by the treating surgeon. Namely, the color of the herniated disc on MRI. The age of a disc herniation can often be determined by its appearance in MRI images. An old herniation — >/= six months — caused by acute trauma or degeneration, will appear darker (even black) than a freshly freshly herniated disc. An old herniation is dehydrated, a new herniation is not, characteristics seen on MRI. By not having reviewed the MRI images, the defense doctor’s opinions were undermined. See Florida Statute 90.705 for official sanction of this method of cross-examination. (Caveat: Aging a herniation is not always as cut and dry as I’ve described above. Other bits of considerations, such as the condition of the other dics and surrounding bony parts, prior back pain and endplate degeneration, can figure into the equation. That said, the defense doctor who hasn’t read the MRI images is vulnerable to attack even where other factors may come into play.)

Qualifications. I touched on this in the above segment where I mentioned that the defense doctor had not performed surgery in more than 35 years. This undercut his testimony that our client did not need the surgery recommended by the orthopedic surgeon. His credibility was further impeached by showing that he had never written an article or lectured on the subjects about which he was testifying, in sharp contrast to the treating surgeon, who had written more than 30 articles and lectured frequently on the subject. (In order to prepare for this line of questioning, it’s important to be familiar with each doctor’s curriculum vitae (CV)). My questioning created substantial doubt as to the defense doctor’s qualifications to render opinions on the subject matter for which he was hired to testify.

Witness bias. Fla. Statute Sec. 90.608(2) provides:

“Any party, including the party calling the witness, may attack the credibility of a witness by: Showing that the witness is biased.”

Money is the most common cause of bias. It is not unusual for insurance companies to pay certain doctors more than $100,000 a year to write reports and testify against Plaintiffs/Claimants. The information is discoverable in civil actions (see, FRCP 1.280 and Allstate v. Boecher, 733 So.2d 993 (Fla., 1999)), although the players stonewall and obfuscate the truth. Doctor bias is also discoverable through jury verdict databases. The database will show for which side a particular doctor testifies. Most insurance company doctors only testify for defendants. Some experts will say anything for money. Those that do are called “whores” by those in the know.

Showing inconsistent testimony or statements. Since the same whore doctors are used time and again by all of the insurance companies, there’s usually a paper trail of reports and sworn testimony (e.g., depositions and trial transcripts) available. While it it difficult to be consistently dishonest, some of the best experts do a good job of it. This can make it difficult to uncover inconsistent testimony, but the converse is to show that the expert says the same things against Plaintiffs in every case. The information is available through lawyers who keep dossiers on certain doctors and through Plaintiffs-only organizations.

Cross examination with authoritative literature.Florida Statute 90.706 provides:

Authoritativeness of literature for use in cross-examination.–Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

The authoritativeness of literature can be acknowledged by the witness being interrogated or by the court upon a proper showing. Not surprisingly, expert witnesses have become increasingly unwilling to recognize writings or authors as “authoritative.” In my recent herniated disc deposition, the defense doctor was a member of the American Academy of Orthopedic Surgeons. I went to the groups website and researched its publications on some of the points about which I would be questioning the doctor. Had he not conceded those points in cross examination without resistance, I was prepared to ask him if he considered his group’s publications authoritative. I’m sort of sorry I didn’t get that chance. It is also not uncommon to be able to use the witnesses own published works against him or her. Unless these folks are getting paid by the likes of the tobacco industry, climate deniers, and pharmaceutical companies to publish papers, it’s more likely that their published works contain honest opinions. Those honest opinions can be used against their shaded litigation testimony. With today’s Internet, the stuff is out there to be found.

Few things are worse than a dishonest doctor. Sadly, too many of them are lined up to testify for the almighty dollar. It is the Plaintiff’s lawyer’s duty to expose them.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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