How to Structure Your Questions So A Medical Expert Doesn't Derail Your Case

NOSSCR MAY 2010 -NEIL H. GOOD 1

NOSSCR MAY2010HOW TO STRUCTURE YOUR

QUESTIONS SO THE MEDICAL EXPERT DOESN’T DERAIL YOUR

CASE


Goals For this Seminar

1. What are the goals of the cross examination of the ME?

2. How do you prepare?3. How do you execute an

effective cross examination?


What are the goals of this cross exam?

Generally 1. Reinforce favorable information2. Discredit or impeach unfavorable

informationa. Information can be facts or opinionsb. Opinions should be based on facts c. Experts can disagree on opinions, not factsd. SS case-don’t know ME opinion until the hearing



1. Construct questions so the ME appears not credible

2. Construct questions so the ME admits the diagnoses is consistent with the objective test and the symptoms(subjective and objective)

3. Construct questions so the ME admits the claimant is credible (SSR 96-7p)

4. Construct questions so the ME give controlling or greatest weight to the treating physician (SSR 96-2p)


What are the goals of the cross exam?

5. Construct questions so the ME admits the claimant cannot work full time (SSR 96-8p)

6. Construct questions so the ME admits that the combination of diagnoses explains why the symptoms are greater than suggested by the objective medical evidence

7. Construct questions so the ME admits that the psychiatric condition can explain why the symptoms are worse than the medical objective evidence suggests



1. Construct the questions so the ME appears not credible

a. Show the ME is biasedb. Show the ME lacks knowledge of the facts c. Show the ME lacks knowledge of the subject

matterd. Show the ME’s opinion is different than

other medical personnel with better, more reliable information



2. Construct the questions so the ME admits the diagnosis is consistent with the symptoms and the objective tests

a. First facts Activities of daily living 3rd party function report Disability report The medical records Testimony

b. Second opinions Construct the questions so the ME agrees or

disagrees with favorable opinions of other medical personnel



3. Construct the questions so the ME admits the claimant is credible (SSR 96-7p)

a. Construct the questions so the ME admits other doctors found the claimant credible

Referring to other medical personnel Workers’ Compensation doctor Other Social Security doctors Free clinic or hospital – Cook County Hospital Physical therapists Treating doctor

b. Construct the questions so the ME admits the diagnosis is a competent cause of pain


SSR 96-7p

c. Construct the questions so the ME admits the symptoms are consistent with the objective tests

d. Construct the questions so the ME admits the symptoms existed before the objective tests

e. Construct the questions so the ME admits the symptoms confirm the diagnosis

f. Construct the questions so the ME admits that the diagnosis could cause level of limitations, persistence and pain


SSR 96-7p

g. Make the ME admit that this medications are prescribed for this diagnosed condition.

h. Make the ME admit they don’t prescribe the medication unless the condition is severe, or else it would be over the counter.

i. Make them admit the side effects are caused by this medication.

j. This all leads one to believe the claimant is credible .



4. Construct the questions so the ME admits controlling/greatest weight should be given to the treating physician (SSR 96-2p and CFR 404.1527)

a. Construct the questions so the ME admits the treating doctor’s opinions

b. Construct the questions so the ME admits the opinion could be true

c. Construct the questions so the ME admits there is nothing (substantially) inconsistent in the records


SSR 96-2pSS DR and ME Treating Doctor

1. Examining Relationship #

2. Treating relationship

i)length of treatment

ii)number of exams

iii)nature extent of tests ordered

Knowledge of impairmentPoms di 25610.89

Consistency with record

specializations

Other factors/ who paid



5. Construct the questions so the ME admits the Claimant cannot work 8-hour days, 5 days a week (SSR 96-8p)a. Construct the questions so the ME admits the conditionb. Construct the questions so the ME admits the condition would cause the claimant to be affected on the job (missing work, late, off task, breaks, leaving early)c. Construct the questions so the ME admits

claimant not able to work 8 X 5



6. Construct the questions so the ME admits that a combination of diagnoses could explain why the symptoms are greater than the objective evidence would suggest

7. Construct the questions so the ME/psychiatrist/psychologist admits that the psychiatric condition can explain or cause symptoms to be worse than the medical evidence suggests


How do you prepare?

1. General comments2. Compare rules of Evidence

to SS hearing3. Cross examination

techniques4. Plan the Cross Examination


General Comments

1. Realize this is about control2. Be low key3. Be professional4. Be efficient in your questioning5. Ask one fact in one question, except

hypothetical questions 6. Know that this is about setting up the

ME7. Don’t go for the quick kill


General Comment

8. Use fact-based questions9. Pin the ME to the medical records10. Stay away from the ME’s opinions,

because we don’t know what they are until the hearing.

11. FRE 705 deals with disclosure of facts and data underlying opinions. The notes for this rule mandate the disclosure in advance, pursuant to FRCP 26(b)(4). (Illinois213f)


SS Hearing vs Rule of Evidence

1. No foundations2. No formal objections

a. Beyond the scope of evidenceb. Assumes facts not in evidencec. Beyond the expert’s field of

expertised. There are no form objections

3. No requirement evidence even exists


Cross Exam Techniques

1. Repeat the question2. Ask the ME if he did not understand 3. Ask why the Me why he won’t answer the

question4. Ask the question in the opposite5. Narrow the question6. Ask for judicial intervention7. If the judge interrupts, it’s answered; be

ready


Cross Exam Technique

Formulating questions

YesNo

Question Refusal to answer

Unrelated run on

ALJ intervention


Cross Exam Sample Question

Have impeachment material readyQ. Do you agree that all pain is subjective?A. No. Q. Well, would you agree that symptoms,

such as pain are subjective and difficult to quantify?

A. I can’t say.Q. So then you disagree with Social

Security’s position in CFR404.1529 where it says that, correct?


Planning a Cross Exam

1. Read the file- note dates and objective test

2. Figure out your goals3. Plan the cross examination

a. Set up questions firstb. Reinforce favorable informationc. Elicit opinions on SSR’sd. Impeach unfavorable information


Types of ME

1. The minimizor – he acknowledges the diagnosis minimizes the limitations

2. The quick reader - he really does not read the file

3. The adopter - he adopts the DDS RFC4. The know-it-all - he knows it all and

makes things up that are not in the records

5. The objective test reader – he only reads the objective tests


Types of ME’s

6. The Repeater - he repeats the same thing at every hearing

7. The honest doctor – he still gets it wrong8. The helpful doctor – he tries to help the

claimant9. The positive doctor – he thinks he can

only give an opinion if he’s sure beyond all doubt


Cross Exam: Remember

1. Be professional.2. Be efficient.3. Be in control.4. Don’t get hostile.5. Don’t argue; stay in control.6. Remember: You are trying to get them to

do these things.


Sample Cross and Result

Goals: Ms. Claimant1. Construct the questions so the ME admits the

claimant’s condition is permanent 2. Go through the SSR’s that apply3. Construct the questions so the ME admits there is

nothing to contradict the WC doctor’s opinion that the claimant couldn’t work in the last 3 years

4. Compare the 2 exams and compel the ME to admit more limitation means less ability to work

5. Construct the questions so the ME admits that neuropathy causes limitation that affect ability to work.

How to Structure Your Questions So A Medical Expert Doesn't Derail Your Case

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Transcript of How to Structure Your Questions So A Medical Expert Doesn't Derail Your Case