MERDES & MERDES, P.C. Ward Merdes, Esq. P.O. Box 71309 Fairbanks, AK 99707-1309 (907) 452-5400 / (907) 452-8879 (Fax) "aklaw@ptialaska.net " Generic Motor Vehicle Crash DME Cross Examination Key Points: 1. Always seek agreement by DME. And BE NICE. Remember, you need juror permission before "cutting up" any witness, including Doctors. There is no opportunity to get juror permission in a deposition 2. NEVER refer to DME as "Independent" or IME 3. Bring your client if hostility expected - or DME's story expected to "change" 4. Use medical journals, texts & literature to impeach DME 5. Move the Court per FRCP 35 to name YOUR treating MD/DC/PT, etc. as an "Independent Medical Examiner" 6. Go to ATLA seminars - particularly the "Ultimate College". It is money well spent 7. The only costs associated with receiving this information are: (1) helping injured plaintiffs; and (2) forwarding additional question/themes to the above e-mail address *** I. GENERAL BACKGROUND: 1. Agree that our client was injured 2. Agree that the injury was caused by this motor vehicle crash 3. What injuries did our client suffer in this crash a. What body parts of our client were actually injured Muscles Ligaments Tendons Discs Bones Nerves / spinal cord Connective Tissues b. What were the injuries suffered to each body part 4. Agree that many factors determine the severity of injuries in a MVC a. Vector direction of impact & spinning of the cars b. Acceleration/Deceleration rates c. Size of cars & their "crushability" d. Coefficient(s) of friction e. Position of head/neck/back f. Height of client - taller people hurt more b/c of lower head rests g. Client's musculature/body weight Women hurt more than men because of less musculature h. Client's seat belt position i. What is the "Concertina Effect" [DME's rarely know, prep your own docs] Looking down prior to impact from behind results in compression fractures due to loading 5. Agree that the occupant of a car can experience up to 250% of the force of the car itself [Have MVC reconstruction literature available to make this point] 6. Agree that seatbelts - by restraining the torso - can place additional strain and forces on a person's neck - and actually make spine injuries worse 7. Agree that some people "walk away" from horrible crashes 8. Agree that some people are very badly injured - even killed - in "minor" crashes II. SUBJECTIVE OR "SOFT TISSUE" INJURIES: 1. Agree that we have a "soft-tissue" injury caused by acceleration/deceleration 2. Agree that "soft-tissue" spine injuries are absolutely real and painful 3. Agree that nobody expects X-rays to show any of these types of injuries suffered by our client 4. How long does it take for acceleration/deceleration injuries to stop hurting a. Agree that it depends on: Severity of injury Health of the injured person/our client Predisposition to such injuries Treatment b. Have you had instances where it took longer 5. Agree that in some cases, these spine injuries are permanent 6. Agree that with your real patient - those whom you are trying to heal - you have assigned permanence without objective findings for similar cases 7. Agree that the longer a spine injury hurts - the more likely it will be a permanent condition 8. Agree that neck/spine is a complicated and delicate collection of nerve/bone/tissue III. CLIENT'S COMPLAINTS: 1. What complaints did our client tell you about 2. Agree that these complaints are consistent with our client's injuries 3. Agree these complaints are consistent with the treatment our client received a. Agree our client's complaints consistent throughout his/her treatment b. Agree that these consistencies support our client's injury claims IV. CLIENT'S TREATMENT: 1. What treatment did our client receive for these injuries 2. Agree that these treatments were consistent with the injuries suffered by our client 3. Agree that you have treated many people with similar injuries 4. Agree that you have treated people without "objective" findings of injury 5. Agree that our client receive similar treatment as prescribed for your own patients 6. Agree that even with treatment most get better - but not all 7. Agree that even some of your real patients never get completely better V. CLIENT'S TRUTHFULNESS: 1. Agree that you usually have to believe a patient when he/she says they hurt 2. You believe your real patients when they tell you he/she hurts 3. You believe our client when he/she told you he/she hurts 4. Agree that part of your job is to determine if a patient is truthful - about pain 5. Agree that you have refused to treat untruthful people 6. Agree that the defense attorney talked with you about our client's truthfulness 7. Agree that the medical records you reviewed showed our client is truthful 8. Agree that our client's complaints are consistent with your findings 9. Agree that if you were asked, you would you treat our client for these injuries 10. Agree that you found our client to be truthful in every way VI. PAIN ISSUES: 1. What is an AMA disability rating 2. Agree that "pain" may be the basis for an AMA disability rating 3. Agree that people have widely differing pain thresholds 4. You aren't critical because one person has a higher or lower pain threshold 5. Agree that differing pain thresholds are natural 6. Agree that our client - not you - is in the best position to evaluate his/her pain a. Agree that its his/her body VII. OBJECTIVE/SUBJECT INJURIES: 1. You discussed "objective" evidence of injuries with your defense attorney 2. Agree that people can be badly hurt without X-ray "objective" findings of injury, such as broken bones 3. Agree that people can have a permanent injury with no X-ray "objective" findings of injury such as broken bones 4. Agree that people have died from auto crashes - without a FX showing on X-rays 5. Agree that you have found permanent injury in your own patients with no "objective" finding of injury 6. Agree that people can hurt like heck - and still have a good ROM 7. Agree that you've seen a lot of people hurt in automobile crashes - with no "objective" findings - and actually treated many 8. Agree that "knots" and "tightness" are objective findings 9. Agree that "knots" and "tightness" in soft-tissue is clear evidence of injury 10. Agree that "knots" or "tightness" be more likely found by a HCP who has seen our client more than once VIII. PRE-EXISTING CONDITIONS: 1. Agree that you thoroughly reviewed our client's medical records 2. Agree that those medical records were completely free of complaints similar to those found by you and our client's real - treating doctors after this crash 3. Agree that all of our client's pain is "new" - arising after this crash 4. Any evidence of prior injury or degeneration 5. Agree that it is normal for every person to have some degree of degeneration 6. Agree that prior neck/back injuries or degeneration make it easier to be similarly hurt in the future - such as in this case 7. Agree that if a person has extensive spine degeneration or prior injuries to his/her spine, a crash hurts more than if it happened to a young, perfect spine IX. MYOFASCIAL PAIN SYNDROME: 1. What is it 2. How does it feel 3. How do you know a patient has it 4. Agree that it can be caused by this type of injury 5. Agree that there is a point where it is considered to be permanent X. LITERATURE: 1. Do you own a copy of "The Spine" - a 2 volume set a. Agree that many of the best orthopedic doctors own it - rely upon it b. Agree that it is recognized as "learned treatise" or well accepted and solid authority on spine injuries c. Agree with analysis found in "The Spine" a. Turn to page 964 (roughly) - read about "sprains" - and "microleasions" in the same chapter [Note tearing of tissue] b. Agree that scar tissue results from tearing of tissue c. Agree that scar tissue is not normal tissue d. Agree that scar tissue is not as flexible as normal tissue e. Agree that scar tissue can cause pain f. Agree that scar tissue is permanent 2. Do you subscribe to the New England Journal Of Medicine a. Turn to the 7/14/94 Edition [supply copy] b. Says most people WITHOUT back pain have disc bulges - BUT NO PAIN - yet, you agree that we have pain … c. You agree that this is what the NEJM report says 3. Do you subscribe to The Journal of Bone and Joint Surgery a. Turn to the 11/95 Edition [supply copy] b. Same conclusion as the NEJM report, n=90 w/MRI analysis Disk bulges - BUT NO PAIN - yet you agree that we have pain … XI. ADEQUACY OF DME EXAMINATION: 1. Agree that the more time you spend with a person, the better you understand their injuries 2. Agree that you've seen our client only once 3. Agree that actually watching their physical therapy helps 4. Agree that communicating with other care providers helps 5. Agree that checking up on a patient over a period of time helps 6. Agree that you never watched physical therapy 7. Agree that our client's real doctors - who are trying to make him/her better - did not ask for your involvement in any way 8. Agree that you never communicated with other care providers 9. Agree that you never checked up with our client to see how he/she was progressed XII. PAID WITNESS 1. Agree that the defense attorney arranged the single appointment 2. Agree that the defense attorney first contact you for testifying today 3. Agree that you did one exam and reported directly to the defense attorney 4. Agree that the defense attorney paid you for your report and for your time today 5. Agree that our client's real - treating doctors did not seek your involvement 6. Agree that you have never even spoke with our client's real - treating doctors 7. Agree that you were not appointed by the Court as an Independent Medical Examiner 8. Agree that you saw our client once - and other than submitting your billing to the defense attorney - your next involvement was to testify here today 9. How much were you paid a. Each year by defense attorney(s) b. More DME work today than 10 years ago