Deposing the DME
About Pain
Countering defense claims of exaggerated pain.
Excerpted from Exposing Deceptive Defense Doctors
Q: Doctor, can
you tell me if you had any formal classes in medical school devoted
solely to treatment of pain? [This is extremely rare in
Q: What is the
name of the class?
Q: And
certainly there is a transcript confirming this?
Q: Doctor,
have you taken the examination for pain management approved by the
American Board of Medical Specialties (ABMS)?
Q: Do you even
know what I am talking about?
Q:
Are you a member of the American Board of Pain Medicine (ABPM)?
Q: Doctor, are
you board certified by the American Board of Medical Specialties
Physical Medicine and Rehabilitation subspecialty in Pain management?
Q: Are you
board certified in Pain Management by the
Q: How about
the subspecialty of Pain Management for the American Society of
Anesthesiologists?
Q: Are you
board certified in Pain Management by the American Board of Medical
Specialties?
Q: Are you
board certified in Pain Management by the
Q: Doctor, are
you board certified in pain management at all?
Q: Doctor,
have you ever published any articles on [lumbar] pain in any peer review
journals?
Assuming the doctor is board certified in something:
Q: Doctor, did you pass the test on the first try? [This is a sensitive issue with defense doctors because they may have flunked the first time, but won’t volunteer this information.]
§18:12 Case Preparation,
Research
Q: Doctor, are
you familiar with the International Association for the Study of Pain,
otherwise known as the IASP?[ii]
Q: Are you
familiar with the IASP Task Force on Taxonomy publication,
Classification of Chronic Pain?[iii]
Q: Do you know
who sits on the Task Force?
Q: Are you
aware that the IASP Task Force is l2 years old?
Q: Are you
aware that l3 countries are represented on this Task Force?
Q: Are you
aware the Task Force consists of over l00 internationally known and
respected doctors who got together and created a book containing
descriptions of chronic pain syndromes and definitions of pain terms?
Q: The Task
Force was responsible for the development and widespread adoption of
universally accepted definitions of terms and a classification of pain
syndromes, correct?
Q: Have you
looked up my client’s condition in the Classification of Chronic Pain?
Q: So you have
not even researched the international standards for classifying pain?
Q: Doctor,
show me any articles/journals you reviewed in preparation for this
lawsuit.
Q: Have you
done a meta-analysis on treatment of [your client’s condition, e.g.,
chronic pain or herniated discs with radiating pain] with the
symptoms/findings in this case?
Practice Point: What is a
meta-analysis?
A meta-analysis is a review of many articles on a subject, i.e., lots of research to see what peer-reviewed journals say on the topic, not just a review of those articles that support the conclusion you want to reach. If the doctor says he has done a meta-analysis, ask him to identify a single article by name which supports your position. Make sure you have examples of these articles helpful to the plaintiff. Point out that he may have reviewed lots of articles to support the defense position, but if he had done a fair literature review, he would have articles in his file supporting both sides. Ask the DME:
Q: Doctor, you would agree that prior to rendering an opinion on this topic, it is important to stay current in the science and literature?
Q: You would also agree that it would be unethical to research and copy only those articles supporting the defense position right?
Q: Doctor, you mentioned earlier, when I showed you my research, that there are articles on just about everything that take one side or another on an issue, correct?
Q: That being the case, show me where you found articles that supported the plaintiff’s side?
Q: Doctor, I have dozens of articles supporting our position and it looks like you only have research that support’s your position. Why did you ignore the articles supporting the plaintiff?
Practice Point: If he produces
scientific evidence, what is the source?
When the doctor produces medical articles, ask him if the defense sent them to him. Look for the defense law firm’s fax number at the top of the document.
Q: Doctor, can you show me any articles you’ve researched on this condition?
Q: What? You haven’t researched this at all?
Q: Doctor, aren’t they paying you $___ per hour with no cap?
Q: You make more money in forensics [than in your clinical practice], right?
Q: So it would help you, economically, if you took the time to verify your opinions with cold hard facts, wouldn't it? That is, of course, unless the science doesn't back you up, right?
Q: So, doctor,
just to sum up: I believe you’ve testified that (a) you have had no
specific classes in the treatment of pain; (b) you have not published on
this topic; and (c) you are not board certified in the treatment of
pain. Is that right?
§18:13 Basic Medical
Knowledge of Pain
Practice Point: When to ask these
questions
The next phase of questioning might be to ask the
doctor specific medical questions about pain. It will astound you to
learn how little doctors know about the mechanism of pain in the human
body. You can ask these questions at deposition and/or trial, but make
sure your own doctor is familiar with the answers (unless you are saving
these types of questions for trial, after your expert already has
testified). If the treating doctor does not understand the subtle
nuances of pain, this fact should not hurt your case as long as he knows
how to treat it and does so appropriately. In my opinion, it is far
worse for a doctor to claim to be an expert in pain and truly not
understand it, yet feel as though he has the right to claim your client
is lying and should have his pain medications (which are helping him
function) taken away.
Q: Doctor,
where in the body is pain generated?
Q: Where are
the pain signals transmitted?
Q: Where is
pain perceived in the brain?
Q: What chemicals are involved in that process and how are they involved?
Q: What is the
difference in where acute pain is perceived in the brain as opposed to
chronic pain? [Acute pain is perceived in the sensory cortex; chronic
pain is perceived in the sensory cortex and frontal lobes. When frontal
lobes are involved, there is more emotional dysfunction, i.e.
depression.]
Q: What are
the functions of the following pain-related structures in the brain and
how do they work?
-
The deep layers of the superior colliculus?
-
The red nucleus?
-
The pretectal nuclei (anterior and posterior)?
-
The nucleus of Darkschewitsch?
-
The interstitial nucleus of Cajal?
-
The intercolliculus nucleus, nucleus cuneiformis and even the Edinger-Westphal nucleus?
-
The periaqueductal grey matter (PAG)?
Q: Are you
aware of the increased incidents of depression due to pain?
[iv]
Q: Pain can
interfere with sleep, which can make the pain worse, right?
Q: Pain can
disrupt concentration and memory, correct?[v]
Q: Do you
agree pain can decrease brain volume?
Q: In other
words, chronic [back] pain can actually cause the brain to shrink,
right?[vi]
Q: Do you
agree pain can cause other problems, including stress-related hormones
promoting tissue breakdown, energy mobilization, and cardiovascular
responses like tachycardia, hypertension, ischemia and ventricular
arrhythmias, immune impairment?[vii]
Q: Doctor, are
you aware of the research indicating that the combination of depression
and pain makes treatment even more difficult?[viii]
Q: Are you aware of research indicating that stress and pain leave patients more susceptible to infection and complications?[ix]
Q: Pain can
even kill, can’t it, doctor?[x]
[Related to accelerated tumor growth]
Q: Isn’t it
true that pain is now considered to be the 5th vital sign?
Q: And isn’t
it also true that the Joint Commission for Accreditation of Healthcare
Organizations and the Department of Health and Human Services have begun
to include pain control criteria alongside other criteria for
accreditation and reimbursement?[xi]
§18:14 Knowledge of Pain as Related to Client’s
Condition
Let's say your client has a herniated disc on the right side and is complaining of pain on his left side. Most defense doctors will claim your client is a fraud. The following questions help to expose the DME’s lack of knowledge of the basic anatomy of pain, as it relates to the client’s specific condition. You can use this technique and similar questions to expose the DME’s ignorance of your own client’s pain condition.
Q: Doctor, are you aware of studies that clearly show that a nerve injury on one side of the nerve (in rats) actually resulted in contralateral neuropathic pain – that is, pain on the opposite side?[xii]
Q: Did you know that hemilateral nerve injuries in rats were found to cause contralateral mechanical allodynia induced by the hemilateral spinal nerve, which was associated with upregulation of satellite cells and TNFa in the contralateral DRG?
Q: Are you aware that additional research suggests that spinal astrocytes also played a part in these changes on the opposite side of the lesion?
Q: Doctor, do you even know what TNFa is?
Q: How does the upregulation of satellite cells occur?
Q: How do spinal astrocytes play a part in this pain reaction?
Q: Can we assume you would not take the position that the rats are malingering?
§18:15 Exaggerated Pain
Q: Doctor, did
you have my client complete a pain diagram?
Practice Point: Compare pain
diagram with standard dermatomes
Many doctors will have your client complete a pain
diagram. See, e.g., Appendices 18-A, B, C. See also §
Q: Doctor, do
you disagree that the pain diagram is consistent with a known dermatomal
pattern on an L4-5 disc?
Q: What is my
client’s pain level? [The DME didn’t check.]
Q: Did you use
any pain scales? [No.]
Q: What is the
normal pain level for this condition? [He won’t know. You can find
out by checking the DME’s subspecialty website. See Chapter 3, Appendix
3-B, List of Medical Websites. These websites provide invaluable
information on various conditions.]
Q: So you
don’t know my client’s pain level or the normal pain level for this
condition, but you claim my client is exaggerating his pain?
Q: Please identify each and every behavior that you believe is an example of this alleged “exaggeration” or “exaggerated pain response.”
Q: Please identify each and every statement my client made which represents “exaggeration” or “exaggerated pain response.”
Q: What
exact symptom is my client malingering? [The DME typically
won’t have an answer. Defense doctors wish to paint a broad picture of a
malingering plaintiff, without filling in the details. See generally
Chapter x: Malingering.]
Q: Doctor, do
you agree individuals can feel pain differently?
Q: Are you
aware of studies that were done wherein all the individuals were given
the same exact painful stimulus, and fMRIs of the brain revealed they
actually experienced the pain differently?
Q: Therefore,
you cannot say my client is exaggerating his pain complaints, can you?[xiv]
Q: Are you saying my client is lying when he says he hurts? [Make sure your client is present via phone at the deposition. Advise the doctor of this prior to the deposition and provide notice to the defense attorney.]
Q: Are you saying it is anatomically impossible for this condition to cause pain?
Q: Why did you think it was more important to spend your valuable time listening to my client’s lung sounds, which were not relevant to this case, instead of documenting the level, type, and consistency of my client’s pain before you claimed he was not honest?
§18:16 Treatment with Narcotics
If the DME claims the treating
doctor gave too many narcotics or the wrong narcotics ask:
Q: Doctor, the treating doctor prescribed ______. Can you tell me when the peak time is for that medication? (i.e., how long after ingestion before the medication is at its maximum benefit)
Q: Can you tell me the half-life of the medication prescribed by the treater?
Q: Doctor, if you can’t tell me the peak time or half-life of the medication, that means you don’t know:
-
How long it takes before the medication starts to help the patient after he takes it; or
-
How many hours the medication is typically beneficial.
If you can’t even tell me this basic information about the medication that was prescribed, please explain how you have the expertise to testify that it is the wrong medication.
Q: Doctor, some people have highly efficient livers, such that they metabolize or breakdown a medication and flush it from their system faster than other individuals, right?
Q: Before accusing the treating doctor of over-medicating the patient, don’t you think it might be a good idea to see if the patient’s body is metabolizing the medication (flushing it out of his system) at a rate that makes the treating doctor’s suggested frequency of narcotic appropriate?
Q: You would do that by clinical correlation, which is to say, by asking the patient if the frequency is such that it makes his pain manageable, correct?
Q: Many different factors can play a part in metabolism of medication, correct?
Q: Show me where you factored that into your equation before you accused my client’s treating doctor of overmedicating.
Q: Doctor, overmedicating someone can be medical malpractice, can’t it? [Most doctors are afraid to accuse other doctors of malpractice, due to fear of retribution if the claim is unscientific. However, a few doctors still go too far. If the doctor claims it is malpractice, ask him if he has reported the treater to the board of medicine like he is supposed to do if he is aware of a doctor committing malpractice.]
Q: What are the signs of overmedication you can document? [respiratory depression, hypotension, lethargy/sedation. Be careful not to confuse lethargy/sedation with depression. If the DME points to lethargy and/or sedation, ask how he was able to differentiate narcotics as the cause, as opposed to depression.]Q: What objective factors can you document?
Q: What subjective factors?
Q: If the patient is still having pain, then it is likely the treater may actually need to increase the dose, right?
If the doctor recommends no narcotics for pain
treatment:
DMEs may do this because it reduces the defense cost in
a life-care plan or, perhaps, to paint the plaintiff as a drug addict to
the jury, thus increasing the likelihood of a defense verdict. Ask the
DME:
Q: Doctor, you testified that my client should not have narcotics because it could cause him to become addicted, correct?
Q: Can you show me where there is evidence that my client met the “high risk” definitions, as set forth by the American Academy of Pain Medicine?
Q: Do you even know what they are?
Q: Let me show you:
1. First they require active substance abuse.[xv] Can you show me evidence of this?
2. Ok, how about a major untreated psychological disorder — did you find evidence of this in your report and diagnose my client or refer him out?[xvi]
3. Show me specific evidence of the criteria that involves “significant risk to self and practitioner.”[xvii]
Q: Let’s take a look at the definition of “low risk”[xviii] for addiction to narcotics which includes:
1. No past/current history of substance abuse.
2. Noncontributory family history of substance abuse.
3. No major or untreated psychological disorder.
Doctor, can you identify a single example of a past or current history of substance abuse?
Q: How about a family history of substance abuse?
Q: Can you show me an example of an untreated psychological disorder? [If not, then the doctor must admit, at least according to the only published definition of risks of addiction on the table, that your client is in the low-risk category.]
Q: Doctor, are you familiar with [look at your article so he knows you have the science behind you) the published statistics which indicate the actual addiction rate of individuals given narcotics?
Q: Are you aware the actual “addiction” rate of narcotics is only 2-5%?[xix]
Q: You indicate that you are concerned about the plaintiff so you recommend discontinuing his narcotics. Is that right?
Q: So, even if the medication helps him, and the odds are 95-98% likely he won’t become addicted, you still want to take away his medicine?
Q: Doctor, does that mean you consider my client to have a doctor/patient relationship with you? [Many doctors will deny this to avoid liability in the event anyone actually relies on their opinion.]
Q: So, let me see if I understand your testimony:
1. You agree my client’s symptoms decreased with narcotics.
2. You agree he has a condition known to cause pain.
3. You agree you are not his doctor and he is not your patient.
Yet, you still claim here, under oath, that you have the ability to take away his medications? [That is the essence of his testimony.]
Q: Doctor, do
you normally make medical recommendations for individuals who are
not your patients?
Q: Doctor, isn’t it true that the real reason you claim this man is not your patient is to avoid liability if you commit malpractice?
Q: Doctor, I understand you recommend no narcotics for the treatment of pain, is that right?
Q: Are you familiar with the “patient rights and organizational ethics” as set forth by the Joint Commission Standards on Pain?[xx]
Q: Now, let’s see:
1. You have no formal training in pain management;
2. You have not published on this subject and have done no research for this case; and
3. You are suggesting this plaintiff has had NO narcotics, even though he is functioning and working and driving.
Is that correct?
Q: Where did you admit this in your report?
Q: So, you would admit that if you take away my client’s narcotics, it can decrease his level of function, right?
Q: Do you think that is kind, doctor, or the right thing to do -- to demand that someone stop taking medicine that is actually helping him?
Q: Are you willing to be considered a treating physician if doctors follow your advice, such that you would be subject to potential malpractice claims? I mean, how deep does this feeling run?
Q: Doctor, do
you really think you are in a better position to suggest my client stop
his narcotics even though you’ve never treated him and, as you’ve said,
he’s not your patient?
Q: Doctor, you
seem to criticize the plaintiff’s physician for prescribing pain
medication, is that right?
Q: Are you
familiar with the journal Pain?[xxi]
Q: Are you
familiar with the research showing not only do opioids/narcotics
decrease pain, they also increase function?[xxii]
Q: Are you
familiar with the standards for the use of controlled substances for
treatment of pain as set forth by Agency for Health Care Administration
and Florida Pain Commission, Florida Board of Medicine and Florida Board
of Osteopathic Medicine?[xxiii]
[Do some quick research for similar publications in your state.]
Q: You are
governed by the State Board of Medicine, right?
Q: Are you
aware that the Florida Board of Medicine maintains that “inadequate pain
control may result from physicians’ lack of knowledge about pain
management or an inadequate understanding of addiction.”[xxiv]
Q: Doctor, have you researched whether physicians, like yourself, who have not formally studied or taken specific classes for pain management may undertreat their patients with chronic pain?
Q: Pain can certainly increase the probability of developing a psychiatric condition, especially depression, right?
Q: Depression can be fatal, can’t it?
Q: Doctor, isn’t it true that pain is often undertreated in many populations of patients?
Q: Isn’t undertreatment of pain just as much of a problem as overtreatment?’[xxv]
Q: So, let me see if I understand this:
1. My client has pain.
2. His treating doctor prescribed narcotics.
3. The narcotics help reduce the pain.
4. He’s not your patient; and you only saw him one time and not in the capacity of a doctor/patient relationship, correct?
And you still claim he should not be given narcotics?
Q: Even though they help his pain?
Q: Have you considered increased limitations and decreased function if his pain is not under control?
Q: Have you considered the potential for increased depression due to increased pain if he does not have the ability to take pain medications?
Q: Have you considered the potentially devastating effects of difficulty sleeping that can occur when his pain is out of control?
Q: Is this how you would treat your own patient? A patient who has a condition that is known to generate pain; he has taken a medication that helps the pain; and you would tell that patient, “Sorry, I know the medicine helps but I’m not going to prescribe it to you”?
For additional discussion and sample questions re
narcotics, see Chapter 17: Spine, §
§18:17 Causation
These questions assume your client has pain from a
herniated disc after a car accident. Use this same technique to pin the
DME down regarding the facts of your case.
Q: Doctor, a
car accident can cause a herniated disc, right?
Q: Herniated
discs can cause pain, right?
Q: Doctor, where in the records is it documented that my client had pain of this type, location, and severity before the crash?
Q: So my
client has been alive for [e.g., 20,000] days, and could have had
back pain on any one of those days, right?
Q: And it just
so happens, with 1-out-of-20,000 odds of developing painful symptoms, my
client spontaneously developed these symptoms after a car crash
which, you admit, could cause the symptoms, but didn’t, and you
don’t know what else did. Is that right?
Q: Can what event in my client’s life was statistically more likely to cause this pain, other than the crash?
Dorothy
Clay Sims has perhaps the most unusual legal practice in the nation.
She helps lawyers cross-examine doctors in cases involving personal
injury, long-term disability, medical malpractice, criminal law, family
law, and workers’ compensation. In her 25 years as a lawyer, Ms.
Sims has cross-examined thousands of doctors throughout the
Ms. Sims is senior partner of Sims &
Stakenborg in
[i]
[ii] International Association for the
Study of Pain (IASP), 2006, The International Association
for the Study of Pain,
[iii] Task Force on Taxonomy, Classification of
Chronic Pain: Descriptions of Chronic Pain Syndromes and
Definitions of Pain Terms, 2nd Edition, Eds. Harold Merskey
and Nikolai Bogduk, Seattle, WA: IASP Press, 1994.
[iv] “Depression following spinal cord
injury. A clinical practice guideline for primary care
physicians,”
[v] For a good discussion of the relationship
between pain, concentration and memory, see
http://www.pain.com/sections/pain_resources/news/news.cfm?id=649.
This site discusses how pain may disrupt the memory traces
required to retain information.
[vi] Apkarian, AV, et al., “Chronic Back Pain is
Associated with Decreased Prefrontal and Thalamic Gray Matter
Density,” Journal of Neuroscience 24.46 (
[vii] International Association for the Study
of Pain: Pain Clinical Updates, “Pain Controls: The New
‘Whys’ and ‘Hows’,” Vol. 1, No. 1, Eds. DB Carr, et al., May
1993,
[viii] Blair, M, et al., “Depression and
Pain Comorbidity: A Literature Review,” Archives of Internal
Medicine 163.20 (
[ix] M. Good, G. Anderson, S. Wotman, J. Albert, X. Cong, L. Chiang, E. Bernhofer, “Effects Of Relaxation/Music And Patient Teaching For Pain Management On Salivary Cortisol,” The Journal of Pain. vol. 9, issue 4 Supp. (April 2008).
[x] International Association for the Study of
Pain: Pain Clinical Updates, “Pain Controls: The New ‘Whys’
and ‘Hows’,” Vol. 1, No. 1, Eds. DB Carr, et al., May 1993, 14
Dec 2006 <http://www.iasp-pain.org/
AM/AMTemplate.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=2561>.
[xi] International Association for the Study of
Pain: Pain Clinical Updates, “Pain Controls: The New ‘Whys’
and ‘Hows’,” Vol. 1, No. 1, Eds. DB Carr, et al., May 1993, 14
Dec 2006 <http://www.iasp-pain.org/
AM/AMTemplate.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=2561>.
[xii] Hatashita, Satoshi, MD, et al., “Contralateral Neruopathic Pain And Neuropathology In Dorsal Root Ganglion And Spinal Cord Following Hemilateral Nerve Injury In Rats,” Spine, vol. 33: l344- 1355.
[xiii] 10/3/08 http://images.google.com/imgres?imgurl=http://img.tfd.com/dorland/thumbs/dermatome.jpg&imgrefurl=http://medical-dictionary.thefreedictionary.com/Brown%2Bdermatome&h=514&w=250&sz=27&hl=en&start=4&usg=__kuKhrrqNFhHY46gGxR6n0uGkSzU=&tbnid=tiRW35q3nxnkVM:&tbnh=131&tbnw=64&prev=/images%3Fq%3Ddermatome%2Bwikipedia%26gbv%3D2%26hl%3Den%26sa%3DG
[xiv] Coghill, RC, et al., “Neural correlates of
interindividual differences in the subjective experience of
pain,” Proceedings of the National Academy of Sciences
100.14 (
[xv] Fine,
[xvi]
[xvii]
[xviii]
[xix] Fine,
[xx]
[xxi] The official publication of the
International Association for the Study of Pain. Published by
IASP,
[xxii] Rashiq, S, et al., “The Effect of
Opioid Analgesia on Exercise Test Performance in Chronic Low
Back Pain”, Pain 106.1-2 (Nov 2003): 119-25.
[xxiii]
[xxiv] Florida Administrative Code, Chapter
64B8-9.013(b), p. 343 of 1559, 19 Oct 2003, The Florida
Department of Health, 23 January 2007.
[xxv] 1-/6 08 http://www.ama-assn.org/amednews/2004/05/17/prsa0517.htm. “the strengthened pain policy encourages boards to view undertreatment of pain as serious a violation as overtreatment.”
