Category Archives: Direct Exam

DIRECT EXAM OF TREATING DOCTOR

We are still in trial so I have limited time to share with you  this week, but here is a simple outline I used during the trial for a treating doctor. I’ve omitted a lot  of references to the hospital records and  exhibits I used  during the examination.  I revised a portion of it to make it appropriate for sharing.  Also, this  is for  a  physician who first  saw the plaintiff in  the hospital.

DIRECT EXAM OF  TREATING DOCTOR

WHY WITNESS  (Note: The first question in the juror’s mind is: who is this and why are they being called as a witness? So, I like to get that fact out first) 

  1. ROLE
  2. HERE TO EXPLAIN
  3. “REASONABLE MEDICAL CERTAINTY” DEFINED

(Note: if  you don’t instruct the witness about the standard of  proof in the beginning you need to keep repeating the phrase every time you ask a medical opinion)

QUALIFICATIONS 

1.         NAME – PROFESSIONAL ADDRESS

2.         PROFESSION/SPECIALITY

3.         EDUCATION

(1)        BOARD CERTIFICATION

4.         PROFESIONAL EXPERIENCE

5.         QUALIFICATIONS -See bio

EXAMINATION OF PLAINTIFF

1.         WHEN/CIRCUMSTANCES

HISTORY 

  1. HISTORY OBTAINED? HOW?
  2. SEE ADMITTING HOSPITAL RECORD 

PHYSICIAL EXAMINATION

1.         FINDINGS

E.         DIAGNOSIS

1.         WHAT?  WHAT BASIS?

HOSPITAL CARE

  1. REVIW HIGHLIGHTS    

(1)        Ex 21 p. 16 photo

  1. PROCEDURES DONE SUMMARY:

(1)        See Ex 82

PRESENT CONDITION

1.         LAST EXAM – CONCLUSIONS

            (1)        SEE HOSPITAL DISCHARGE Ex 27 p. 38

PROGNOSIS

1.         PERMANENT INJURIES? 

2.         ABILITY TO WALK  

3.         LIFE LONG CARE

4.         VENTILATOR

4.         EFFECT IN FUTURE

(1)         DISABILITY

(2)        DISFIGUREMENT

(3)        PHYSICAL PAIN

(4)        MENTAL PAIN

(5)        LOSS OF ENJOYMENT OF LIFE

3.         FUTURE TREATMENT REQUIRED?

(1)        NATURE

4.         LIFE EXPECTANCY IMPACTED?

CAUSATION

1.         MECHANICS OF HOW ACCIDENT CAUSES THESE INJURIES

2.         PROXIMATE CAUSE OF INJURY: REASONABLE PROBABILITY

BILLS

           1.         HAVE REVIEWED?

 2.         IN YOUR OPINION THESE WERE MEDICALLY NECESSARY AS A RESULT OF HER INJURIES FROM THE FIRE?

DIRECT EXAMINATION OF ECONOMIST

I am scheduled to start a trial in a week involving a man who was injured while working. Our economist is scheduled to deliver a baby when the trial is going on  so I  needed to perpetuate her testimony. Here is the simple outline I prepared for her perpetuation deposition. We had discussed this before I used it so she knew the areas I wanted her to cover by these questions. This outline assumes the economist can explain fully the concepts.

DIRECT OF ECONOMIST 

WHY THIS PERSON IS A WITNESS

  1. You are being called as an expert witness in economics?
  2. Are you prepared to give us your economic appraisal regarding John Hauge?

PERPETUATION

  1. You are not going to be available at the time of trial? Why?

QUALIFICATIONS

  1. Marital & general background
  2. See CV:

(1)  Employment now & history – explain nature

(2)  Educational background

(3)  Professional societies

(4)  Have you qualified as an expert witness before – explain

(MARK  CV AS EXHIBIT)

HOW  ARRIVED AT YOUR CONCLUSIONS 

  1. You understand your conclusions must be based upon “reasonable probability”
  2. Will base all opinions on reasonable probability & if unable say so?

EARNING LOSS REPORT

  1. Have you written reports with your conclusions and information about them?
  2. What life expectancy did you consider for John? Why?
  3. How many years did you assume John would have worked if he had not been injured? Why?
  4. Did you calculate John Hauge’s earning loss as a result of his injuries?
  5. Do you have your report about that loss?
  6.               MARK REPORT AS EXHIBIT
  7. Does this report outline your conclusions and the information about his lost earnings?
  8. Is an accurate report?  (Offer at Trial)

FACTORS CONSIDERED

  1.  Explain how you arrived at that economic appraisal?
  2. If you have illustrations that will help explain please use them.
  3. Factors? [Process: inflation, interest, fringe benefits etc]

PRESENT CASH VALUE

  1.  What is present cash value?

“Present cash value” means the sum of money needed now which, if
Invested at a reasonable rate of return, would equal the amount of
Loss at the time in the future when the earnings would have been
Received or [the benefits would have been received.

The rate of interest to be applied in determining present cash value
Should be that rate which in your judgment is reasonable under all
The circumstances. In this regard, you should take into consideration
The prevailing rates of interest in the area that can reasonably be
Expected from safe investments that a person of ordinary prudence,
But without particular financial experience or skill, can make in this
Locality. In determining present cash value, you may also consider
Decreases in value of money that may be caused by future inflation.”
WPI 34.02

2.   Why should we consider present cash value?

COST OF CARE REPORT

  1. Did you calculate future cost of care for John Hauge?
  2. Do you have your report about that loss?
  3. MARK AS EXHIBIT
  4. Does this report outline your conclusions and the information about his lost earnings?
  5. Is an accurate report?  (Offer at Trial)
  6. Explain how you arrived at that economic appraisal?
  7. What factors you considered?

DEFENSE ECONOMIST

  1. Do your conclusions differ from the economist hired by the lawyers for Ash Grove Cement?
  2. What are the total amounts that differ?
  3. Did you read his criticism of your calculations? Explain
  4. What are they?
  5. Why do they differ?
  6. Is he right? Why not?

CONCLUSION

  1. You know there are two kinds of damages for the jury to consider: (1) economic and (2) non-economic
  2. Assume that non-economic damages are the earnings and bills whereas non-economic would be such things as pain, disability, loss of enjoyment of life. Do your figures include anything other than economic loss?
  3. Do they include anything for pain disability, loss of enjoyment of life?
  4. Do your calculations assume that if he lives the projected life expectancy, at the end of John’s life there would be no more money left that had been allowed for cost of care?
  5. Would your calculations have been different if Ash Grove Cement had asked you to make them.
  6. Do you think your conclusions are accurate and reasonable?

DIRECT EXAMINATION OUTLINE FOR YOUR OWN CLIENT

I have just returned from Hawaii where I took a deposition of my client because he has a fatal lung cancer and I wanted to perpetuate something of him by way of  video deposition. Here is the basic outline I prepared, however the client has a tracheotomy and is unable to speak.  He also has a serious hearing  problem, both the result of over radiation for a head tumor. He is in bed at home and the only way to question him was to ask his wife the question who would repeat it through a hearing volume device. He would then write the answer on a pad and the wife would read it into the record. His medications made it difficult for  him to function fully. As a result of all of this I elected to only ask three questions I selected from list of concluding questions at the end of the outline. I thought this outline might be helpful to you in creating your own direct examination of your injured client.

                                    CLIENT DIRECT  DEPOSITOIN OUTLINE 

A. IDENTIFICATION

  1. NAME, ADDRESS
  2. MARITAL
  3. HOW LONG
  4. CHILDREN
  5.  How many
  6.  How old
  7. BIRTH DATE – age
  8. EDUCATION
  9. WIFE’S NAME
  10. WORK OUTSIDE HOME – WHAT

 B. EMPLOYMENT

  1. WHAT WAS YOUR EMPLOYMENT?
  2. JOB DUTIES
  3. HOW LONG
  4. WHEN WORKED LAST

C. ACTIVITIES AND HEALTH BEFORE INJURY

  1. GENERAL HEALTH BEFORE YOU WERE INJURED
  2. NORMAL ACTIVITIES BEFORE YOU WERE INJURED

D. SAW DOCTORS  

E. TREATMENT

  1. DESCRIBE THE TREATMENT YOU RECEIVED
  2. OVER WHAT PERIOD OF TIME

F. DESCRIPTION OF PROBLEM

  1. HOW DID YOU REALIZE THERE WAS A PROBLEM

 

G. AFTER SITUATION

H. PRESENT SITUATION

  1. WHAT IS YOUR PRESENT HEALTH CONDITION
  2. HOW DOES YOUR CONDITION EFFECT YOU

I. PROBLEMS WITH EVERY DAY LIVING 

J. CONCLUDING QUESTIONS

(Consider one or more of the following)

  1. WHAT’S THE HARDEST THING YOU DEAL WITH EACH DAY
  2. WHAT DO YOU WISH FOR YOUR CHILDREN
  3. IF YOU COULD CHANGE ONE THING WHAT WOULD THAT BE
  4. WHAT DO YOU WISH FOR YOURSELF RIGHT NOW
  5. ARE YOU SCARED – WHY?
  6. HOW HAS THIS CHANGED HOW YOU SEE YOURSELF
  7. HOW HAS CHANGED HOW YOU SEE YOUR WORLD

 

1. WHY DID YOU CONSULT DOCTORS

2. WHAT DID THEY DECIDE WAS YOUR HEALTH PROBLEM

3. WHAT DID THEY RECOMMEND