The great courtroom dramas in movies and on television are both captivating and inspiring.
The most riveting scenes are filled with heart-stopping suspense and excitement, and usually involve cross-examination. It’s the lifeblood of a trial where no fact or assertion on direct examination is deemed settled until it has successfully weathered a cross-examination.
In real life, cross-examination can be both a frustrating and harrowing experience, especially for those who go into the fray without adequate information and preparation. If you are unclear about the process of a typical trial, then securing concrete advice and information to present yourself as a professional and competent clinician during questioning is the next step to take.
When health care providers such as chiropractors are called to the stand, they often do not know what to expect. In many cases, they are in for an unpleasant series of surprises. Two main factors contribute to this negative experience: the attempt by the defense to cast doubt on the expert’s qualifications, and the lack of experience on the part of the expert.
During cross-examination, defense attorneys attempt to undermine the expert’s credibility, and it’s a common strategy to assault and demean the background, education, profession, knowledge base, clinical understanding, treatments rendered, and opinions of the expert. They may also openly question or discredit any of the expert’s testimony.
A lack of formal training in the finer points of what happens during a trial can also severely disadvantage the expert witness. On one level, this is a deficiency in undergraduate jurisprudence programs; on another level, it reflects the absence of professional-grade educational cross-examination tools available at the postgraduate level.
Even firsthand deposition or trial experience is of little value in most personal injury (PI) cases. In general, the steep and slow learning curve that goes from having occasional courtroom experience to being a self-confident and experienced veteran on the stand is too difficult for most clinicians.
Doing your homework
So, how can you prepare and protect yourself if you’re in this situation? One way is to collect an array of cross-examination transcripts to determine whether the same general questions come up repeatedly. Examine the transcripts to see whether similar themes are stressed in questions and appear to be repeated in one form or another throughout the testimonial process.
During this analysis, you are likely to come across standard arguments against chiropractors that recur in a variety of patient encounter areas; for example in the patient history, examination, tests ordered and performed, the diagnosis, prognosis, etc.
That said, anticipating specific attacks is often not enough to defend against them. A successful response requires reasonable and well-thought-out responses that are supported with evidence of sound office procedures, a clear-cut clinical rationale, and proof of excellent recordkeeping. An otherwise convincing answer is certain to be undermined if your office records do not support it.
In other words, you must know at all times what you are doing and why you are doing it. That sounds simple, but many find it extremely challenging to explain their actions and their reasoning in the midst of a stressful courtroom situation.
First sample questions
To acquire the skill and knowledge required to successfully weather a cross-examination, you must prepare in advance. Having a reasonable idea of the kinds of questions you may be asked is an excellent starting point.
For the sake of simplicity, the following questions focus on chiropractic treatment in relation to a specific topic. They are in regard to a vehicular accident case and drawn from actual depositions and trials. How would you answer them in the most effective way while maintaining your composure?
Q: Would you agree that the primary treatment procedure used by chiropractors involves forcing a misaligned or malpositioned or subluxated vertebra into place?
Q: You can force vertebrae or spinal bones to move in what you call a “thrust,” correct?
Q: With a thrust, how far can you jerk or shove a vertebra?
Q: Would you agree with me that a force technique may have some consequences to a degenerating disk?
Q: Could a high velocity or force technique injure a disk that already has some degeneration?
Q: Is it true you can injure tendons and ligaments that are already weakened from an injury?
Q: Could you injure joints that are already swollen or damaged?
Q: How soon after your diagnosis of torn muscles and ligaments did you start yanking, pulling and twisting this patient’s spine?
Q: Were non-force techniques employed to treat this patient?
Q: And force techniques as well?
A thorough review of the patient file is usually considered good preparation for a trial. However, given the nature of the example questions given above, it should be clear that reviewing the file won’t be enough for making a robust defense of professional practices.
Nonetheless, it is essential to review the file for two reasons: First, any doctor who does not know the basic contents of a file they created will instantly lose credibility. Second, the witness will invariably be asked whether some data is contained or absent from that file.
Second sample questions
Many of the questions above set the stage for the following kinds of questions. The purpose of most—if not all—of these questions is to cast doubt on the safety of the practitioner’s procedures and to suggest that any injuries or harm experienced by the defendant could be the direct result of chiropractic visits:
Q: And just so the jury understands, much of the treatment this patient got was spinal manipulation, or what chiropractors call an adjustment, correct?
Q: Isn’t one reason that medical groups, including neurologists, object to chiropractic is that manipulation or adjustment is dangerous?
Q: Sometimes you have to use a little more force than what could be described as “gentle” to affect a movement, don’t you?
Q: Would you disagree then with the statement that it is necessary at times to do an adjustment of varying force to get the vertebrae back into what you consider to be the proper alignment?
Q: If a chiropractor was not careful about the manner in which they were performing the adjustment, perhaps performing it with a undue amount of force or perhaps erring in some way, that it could be a dangerous situation from the standpoint of the patient?
Q: There could be harm to the patient if too much force was used, right?
Q: I don’t want to dwell on this, but certainly an improper chiropractic adjustment, or excessively forceful chiropractic treatment, can cause pain or spasm or both, and delay someone’s normal recovery—you’d agree with that, wouldn’t you?
Q: If ligaments and tendons are torn, and you testified that was the case, and if too much force were used for an adjustment, that would further tear and stretch these structures, correct?
Q: And that would certainly delay the patient’s recovery, would you agree with that?
Q: Will you admit, sir, that chiropractic adjustments can be counter-productive to the recovery and healing of any injury?
Answering these questions and the more challenging probes by defense attorneys can be tricky for even the most experienced and reputable chiropractor. This is precisely why in PI cases and similar you must carefully prepare yourself to demonstrate your knowledge and competence in your field of expertise.
Charles Theisler, DC, JD, MD, is also a graduate of the University of Akron School of Law and has passed the Ohio bar. A speaker for NCMIC, he has served on the faculty of the National University of Health Sciences as a lecturer. He holds an MD from Grace University School of Medicine, although he continues to practice law. He is a published author and journal contributor. To learn more and to contact him, visit chirocrossexam.com.