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exposing deceptive doctors
Some defense doctors manipulate exams and spin the science. These chapters reveal the games DMEs play, and show you proven techniques and questions for making juries angry at the misrepresentation.
Luckily, defense
medical experts are predictable. Their defenses … especially the
dishonest ones … are not particularly creative and can be readily dealt
with once you learn how to recognize and counter them.
These chapters reveal
the defense tactics, explain where they are vulnerable, provide
citations to the underlying research, and then give you the exact
questions to use in depositions and trial examinations to exploit the
weaknesses in DME testimony
An excerpt of a representative chapter is provided at the bottom of this page.
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Chapter 1:
Diagnosing the Doctor
Chapter 2: What to Do Before and
After the Defense Medical Exam
Chapter 3: What to Do Before,
During, and After the Deposition
[Chapter 4: Reserved]
Mental Health Experts
Chapter 5:
Psychological Tests
Chapter 6: Junk Defenses to
Psychiatric/Neuropsychiatric Conditions
Chapter 7:
Debunking Claims of Exaggeration and Malingering
Chapter 8:
Cross-Examination and Depression
Chapter 9:
Cross-Examination and PTSD
Chapter 10:
Cross-Examination and Somatoform Disorder
Chapter 11:
Cross-Examination and Traumatic Brain Injury
Chapter 12:
Cross-Examining the Psychologist, Neuropsychologist & Psychiatrist
[Chapters 13-14: Reserved]
medical experts
Chapter 15:
Cross-Examining Neurologists, Orthopedists & PMR Doctors
Chapter 16:
Cross-Examination of Radiologists and Neuroradiologists
Chapter 17:
Spine/Soft Tissue/Disc Injuries
Chapter 18:
Cross-Examination and Pain
Chapter 19:
Cross-Examination and RSD/CRPS
Chapter 20:
Functional Capacities Evaluation
Chapter 21:
Deposing the ERISA/LTD Physician
[Chapters 22-24: Reserved]
other experts
Chapter 25:
Cross-Examining the Vocational Rehabilitation Expert/Life-Care Planner
[Chapter 26: Reserved]
technology & cross-examination
Chapter 27:
Technology, Outsourcing and Cross-Examination in the Practice
of Law |
Here are the first 5 pages of an 11-page chapter:
Chapter 9
Cross-Examination and PTSD
I. Diagnosis & Causation
A. Essential Features & Symptoms
§9:01 Direct Exposure to Extreme Traumatic Stressor
§9:02 Fear, Helplessness, Horror
§9:03 Persistent Re-Experiencing of Stressful Event
§9:04 Persistent Efforts to Avoid Stimuli Affiliated
With the Trauma
§9:05 Increased Arousal
§9:06 Significant Duration and Distress
[§§9:07-9:09 Reserved]
B. PTSD in Specific Populations
§9:10 PTSD and Veterans/Independent Contractors in War
Environment
§9:11 PTSD and Children
§9:12 PTSD and Women
[§§9:13-9:14 Reserved]
II. Overcoming Typical Defenses
§9:15 Overview: What to Do and How to Do It
§9:16 Sample Questions: Failure to Test for PTSD
§9:17 Sample Questions: Failure to Test Biological
Markers for PTSD
§9:18 Sample Questions: Failure to Question Plaintiff
re DSM-IV Symptoms
§9:19 Sample Questions: Failure to Review All Relevant
Records/Files
§9:20 Sample Questions: Failure to Record
Observational Data
§9:21 Sample Questions re: MMPI-2
§9:22 Sample Questions: Improper Questioning of
Plaintiff
Introduction
With the increased number of veterans returning from war with post-traumatic stress disorder (PTSD), the public’s understanding of this condition has somewhat increased. Jury consultants will tell you, however, that jurors remain skeptical of the PTSD diagnosis because many people believe plaintiffs fake or exaggerate PTSD symptoms. While that is true in some cases, most of your clients diagnosed with this disorder will be miserable and unhappy individuals whose lives have been dramatically, and perhaps permanently, altered. They spend most of their lives waiting for the other shoe to drop. They are anxious and nervous. Crowds make things worse. What helps? Being alone in a quiet room. That is very hard for children and spouses to accept.
I. Diagnosis & Causation
A. Essential Features & Symptoms
§9:01 Direct Exposure to Extreme Traumatic Stressor
The essential feature of PTSD is the development of characteristic symptoms following direct exposure to an extreme traumatic stressor. This stressor does not have to be real; the plaintiff just has to perceive it to be real, and “extreme” is measured subjectively, from the plaintiff’s perspective. For example, if your client was mugged by someone pointing a plastic gun at her, that stress is just as significant as it would have been had the gun had been real. The stress must be directly experienced by the patient (with the exception of hearing about the sudden death or serious harm or threat of harm to a family member or close associate). Indirect personal experience of an event, or hearing that Bobby from down the street died in a car crash, is not sufficient. If an individual experienced a trauma, but it was not extreme, he may have another psychiatric condition, but not PTSD.
§9:02 Fear, Helplessness, Horror
The plaintiff must respond to the stressor with intense fear, helplessness, or horror.
§9:03 Persistent Re-Experiencing of Stressful Event
The plaintiff must re-experience the stressful event persistently, with one or more of the following:
-
Recurrent recollections of the event;
-
Nightmares;
-
Feeling as though the event was reoccurring;
Intense distress when faced with something or someone that symbolized the event, i.e., the street on which it occurred;
-
Physiological reactivity when exposed to something that symbolized the event.
§9:04 Persistent Efforts to Avoid Stimuli Affiliated With
the Trauma
The plaintiff must persistently try to avoid stimuli that are affiliated with the trauma and become numb to general responsiveness, as displayed by any three of the following:
-
An effort to avoid thinking or talking about the event;
-
Trying to avoid any place, activity or person that reminds them of the event;
-
Being unable to recall an important aspect of the trauma;
-
Feeling loss or reduction of interest in participating in activities;
-
Feeling disconnected from other individuals;
-
Having limited rage of affect or emotion, e.g., being unable to love;
-
Feeling as though they have no future or limited future.
§9:05 Increased Arousal
The plaintiff must have at least 2 or more of the following examples of persistent symptoms of increased arousal:
-
Problems sleeping;
-
Inappropriate outbursts of anger or irritability;
-
Problems concentrating;
-
Startle response that is exaggerated;
-
Hypervigilance.
§9:06 Significant Duration and Distress
These symptoms must exist for a minimum of one month and must cause significant distress or impairment in social and/or occupational functioning.
[§§9:07-9:09 Reserved]
B. PTSD in Specific Populations
§9:10 PTSD and Veterans/Independent Contractors in War
Environment
If you are dealing with a Defense Base Act case and litigating against an insurance company, you may find the defense hiring a doctor who is biased and uninformed. For example, a Defense Base Act doctor may claim that PTSD can only occur as a result of a single event, as opposed to multiple events (cumulative trauma). The American Psychological Association, however, disagrees.7 After deposing a doctor who routinely diagnoses malingering and no PTSD after the defense retains him, you may find he based this conclusion, in part, on the MMPI. At deposition, the doctor may even admit:
-
He is not an expert on the MMPI-2;
-
He does not understand the scales on the test; and
-
He is not an expert on PTSD. [Note: PTSD was identified as a disorder in 1980.8 Thus, for many older DMEs, PTSD did not even exist when they were in medical school.]
An excellent site for gathering information on
this topic is the U.S. Department of Veterans Affairs’
§9:11 PTSD and Children
Children experience PTSD symptoms somewhat differently than do adults. It may be particularly difficult if the child is of an age where he is unable to communicate his fears. According to the American Academy of Child and Adolescent Psychiatry, “Children with PTSD may also show the following symptoms: worry about dying at an early age; losing interest in activities; having physical symptoms, such as headaches and stomachaches; showing more sudden and extreme emotional reactions.”9[1] Children with PTSD also may have problems falling or staying asleep.
§9:12 PTSD and Women
Women are particularly vulnerable to PTSD. The American Psychological Association’s web site dealing with women and stress is an extremely helpful reference. See www.apa.org/ppo/issues/womentraumafacts.html. Consider the following questions for the DME:
Q: Doctor, do you agree women are more at risk for developing PTSD?
Q: Are you familiar with the American Psychiatric Association?
Q: Have you read their Practice Guidelines for the Treatment of Patients with Acute Stress Disorder and PTSD, published in 2004?
Q: Are you aware that women are two times more likely to develop PTSD?
Q: Are you aware that as many as one-third of the people who developed PTSD have chronic symptoms that did not remit?13
Q: Are you aware and do you agree that “[i]ndividuals who have been exposed to trauma may also be vulnerable to subsequent traumas and have increased likelihood of developing PTSD with repeated traumatic experiences”?
Q: Have you read the American Psychological Association Online Public Policy Office article titled “Facts about Women and Trauma,” which states, “Many survivors currently living with PTSD experience symptoms that are both chronic and severe”?
Q: Doctor, do you agree with that statement from this publication?
Q: Do you agree with the following statement: “Many survivors currently living with PTSD experience symptoms that are both chronic and severe. These include: nightmares, insomnia, somatic disturbances, difficulty with intimate relationships, fear, anxiety, anger, shame, aggression, suicidal behaviors, loss of trust, and isolation. … Psychological disorders may also occur in conjunction with posttraumatic stress, including depression, anxiety, and alcohol/substance abuse problems.”?
Q: Doctor, are you familiar with the Journal of Clinical Psychiatry?
Q: Do you agree it is a peer-reviewed, well-respected journal?
Q Have you read the article “Trauma and Stress: Diagnosis and Treatment,” published in the Journal of Clinical Psychiatry, which says, “Besides being female, other pre-existing risk factors…”?
Q: In other words, women are more at risk?
Q: Do you agree that, “If the trauma is severe enough, anyone can develop PTSD whether he or she has a pre-existing vulnerability or not. It is not a sign of weakness in an individual to develop PTSD…”?
Pay particular attention to your female clients and watch for symptoms of this disorder, so that you can bring them to the attention of her treating doctor, who may wish to refer her to a specialist for treatment.
[§§9:13-9:14 Reserved]
II. Overcoming Typical Defenses
§9:15 Overview: What to Do and How to Do It
Typically, defense doctors avoid diagnosing PTSD by:
-
Not testing for it;
-
Testing for it, but ignoring or misrepresenting the test results;
-
Ignoring other doctors’ PTSD tests and/or clinical findings;
-
Not asking questions about the symptoms;
-
Claiming the accident was not severe enough to cause the condition.
How do you combat a defense doctor’s determination to blatantly ignore PTSD symptoms? First, make a list of your client’s symptoms. Let’s say your client is a woman who was in or believes she was in a life-threatening crash. (What is significant is that she believes it was life-threatening, not that it actually was.) She has had the following symptoms for more than one month and finds it almost impossible to work:
-
Horror when the event occurred;
-
Sleep problems;
-
Nightmares;
-
Avoiding the road where the collision occurred;
-
No longer engaging in former hobbies;
-
Broke up with her boyfriend and has neither desire nor ability to become romantically involved with anyone else;
-
Frequently thinks about death;
-
Difficulty concentrating.
Compare your client’s symptoms with those listed
in the Diagnostic and Statistical Manual (“DSM”)-IV. Then, at deposition
and/or trial, ask the doctor if he is familiar with the DSM. Get the
doctor to agree that the symptoms experienced by your client would
result in a diagnosis of PTSD using the DSM. Ask the doctor where he
documented actually examining every potential symptom of PTSD with your
client. Ask what specific tests he administered to test for PTSD. Point
out that your expert tested for it, and the test results reflect she has
PTSD. If the defense doctor agrees that both the symptoms and the tests
(and the clinically indicated symptoms from your client’s treating
doctors’ notes) match the diagnosis of PTSD, then the only way he can
conclude your client does not have PTSD is by not asking about her
symptoms, ignoring the symptoms documented by other doctors and ignoring
the test results.
Practice Point:
Invest in a copy of the DSM-IV
The DSM is the most commonly used treatise or manual for coding and
diagnosing mental illness. If you have even one PTSD case, you need to
own the DSM. Get it from Amazon.com because you can pick up a used copy
much cheaper than ordering a new one from the American Psychiatric
Association. See
www.amazon.com or www.psych.org.
§9:16 Sample Questions: Failure to Test for PTSD
Use these questions to point out what the doctor did not do.
Q: Doctor, have you ever administered the Davidson Trauma Inventory?
Q: Have you ever administered the Detailed Assessment of Post Traumatic Stress, consisting of 104 questions?
Q: How about the
Practice Point:
Abbreviated MMPI-2 does not test for PTSD
Defense doctors may give an “abbreviated” or shortened version of the
MMPI-2 in a PTSD case because the PK and PS scales do not exist in the
abbreviated version. These are the scales that may be elevated when PTSD
exists. (See generally www.pearsonassessments.com/tests/mmpi_2.htm,
noting that the PK scale is a good scale to measure PTSD.) By not giving
the full test, the doctor can avoid the potential of those scales being
elevated and, thus, supporting the plaintiff’s claim of PTSD. Ask the
doctor to show you the administration manual for the MMPI-2. Nowhere
does it suggest that the doctor give an abbreviated or shortened version
wherein the plaintiff answers only some of the questions.
Q: Have you ever administered the PTSD Trauma Scale published by the VA? [See www.ncptsd.va.gov/ncmain/ncdocs/assmnts/davidson_trauma_scale_dts.html.]
Q. Doctor, isn’t it true the U.S. Department of Veteran Affairs National Center for PTSD says the Clinical Administered PTSD Scale, or CAPS, is the “gold standard” for PTSD assessment? [See www.ncptsd.va.gov/ncmain/assessment/caps_training.html.]
Q: Have you ever administered the CAPS?
Q. How about the primary care PTSD screening test? [See depression.about.com/library/quizzes/ptsdquiz/blptsdscreening.htm.]
Q: How about the early trauma inventory? [userwww.service.emory.edu/~jdbremn/instruments/ETISR-SF.pdf] Have you ever administered this test?
Q: How about the MCMI? [pearsonassessments.com/resources/f43cs.htm]
Q: How about the Post Traumatic Diagnostic Scale published by Pearson Assessments? [www.pearsonassessments.com/tests/pds.htm] Have you administered this scale?
Q. The PTSD Military Test? [www.mental-health-today.com/ptsd/miltest.htm.]
Q: How about the PTSD short screening scale for DSM-IV PTSD?19[1]
Q: The Seven Symptom Scale—have you ever administered this test for PTSD?
Q: Did you administer any of these tests to my client?
Practice Point:
If treating doctor did not administer tests
If your own doctor also did not administer any of these tests and the
DME brings this fact up, try:
Q: Doctor, why should my client’s treating doctor, the person with
the most experience with my client, be forced to spend money on a test
for a condition he had already diagnosed?
Q. Doctor, did the defense limit you financially in this
case?
Q: Did you make any effort to buy any of these tests before you
ruled out PTSD?
Q: Did you even bother to ask the defense if they would pay for
any of these tests?
Q: Doctor, did you administer to my client
any test that was created to determine the existence and severity
of PTSD?
Q: What? Not a one?
Q: So you conclude my client does not have PTSD by not testing her
for it and not going through the symptoms of the disorder?
Practice Point:
Total lack of testing
The point here is not to pick the PTSD test and argue it should have
been given. The point is that the DME used no PTSD test, and then ruled
it out. That is like claiming someone with symptoms of leukemia does not
have leukemia by not giving them a blood test for it.
Q: Doctor, do you agree the event is of
sufficient severity to cause fear of death? [This is important
because many doctors will absurdly deny the obvious. For example, a
doctor may deny that your
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