Defendant’s cross-examination of treating doctor

This form is for the defense to use in examining the plaintiff’s treating doctors. Generally the defense gains an advantage in the deposition of a plaintiff’s treating doctor by making the examination, long, detailed, and boring. The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. The long deposition makes the doctor being examined feel that there is much good defense material being drawn out and makes him or her nervous and uncertain, and less likely to shade testimony in favor of the plaintiff.

In the below checklist, the plaintiff is referred to as “John Jones” and “Willy Fox” or “Mr. Fox” refers to the name of the plaintiff’s attorney. “D/A” refers to the actual date of the accident, e.g., January 12, 2010.

Deposition Checklist — Defense Examination of Plaintiff’s Treating Doctor


Name and Office address:

Licensed to practice? Where? When?

Medical training? Where? When?

Practice any specialty? How Long?

Passed specialty board for the specialty practiced?

Any self limitations on type of practice?

Medical societies?

Teaching positions?

Any Publications?

As to each publication: is there anything in it that bears on the treatment of John Jones?

Hospital privileges ever denied? Ever limited in scope?

Any medical licensing board disciplinary proceedings?

License to practice medicine ever revoked, suspended, restricted?

Ever had treatment for chemical dependency?

Ever been charged with crime other than driving violations?

Ever had a lawsuit brought against you?

Names of parties?
What did suit involve?
Names of attorneys?
Court involved?
Date of suit?
Testify by deposition or trial in the suit?
Do you have a copy of the transcript of your testimony?
Tried, settled or still ongoing?

Testified in any deposition or at trial before? [either a case brought by you, or a case involving other persons]

Names of parties?
What did suit involve?
Names of attorneys?
Court involved?
Date of suit?
What was your testimony about?
Do you have a copy of the transcript of your testimony?

Do you have a Curriculum Vitae, (or “C.V.” or “an outline form of your education, professional history, accolades, interests, and other relevant information to your medical treatment of John Jones”)?
[The defense lawyer will obtain and mark as Exhibit. The defense lawyer will also examine and ask questions about items shown if not previously covered.]


Was John Jones referred to you by Mr. Fox [the attorney for the plaintiff]?

Does Mr. Fox or his office refer patients to your office?

Are you a social friend or business friend of Mr. Fox?

Before this deposition, did you meet with the attorney for John Jones, Mr. Fox?

How long?

Were you paid, or are you to be paid, for that time, by Mr. Fox?

Did you ask for payment, or did Mr. Fox tell you he would pay you?

Who asked you to this talk between yourself and Mr. Fox?

I was not invited to this talk between you and Mr. Fox, was I?

Now at this talk between you and Mr. Fox to which I was not invited and for which you are to be paid by Mr. Fox, what did you say to each other?

What documents did Mr. Fox show you, and what documents did you show Mr. Fox?

What did you each say about these documents?

Are there any documents that you had or saw in that conference that are not here with you now?

Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions?

What was discussed?


You were served with a subpoena asking you to bring a number of items to this deposition, weren’t you?

Who in your medical organization is in physical charge of the:

Medical records of John Jones?
Bills for services to John Jones?
Bills for services to Mr. Fox or his legal firm?
Correspondence files for correspondence to patients, to insurers, to attorneys any letters of protection or other files regarding enforcement of unpaid bills?

Before coming to this deposition, did you check with each of those persons to see that you actually had all the records you were subpoenaed to bring?

Please show me all the items you brought to comply with that subpoena.

The defense attorney will identify on the records all exhibits that doctor has brought.

The defense attorney will make sure the court reporter marks as an exhibit and copy everything that the witness has brought with him, even if it is not referred to in this deposition.

If witness has not brought any item:
The defense lawyer will identify it with great particularity; and ask why it was not brought; and ask that it be produced immediately.

The defendant’s lawyer will specifically ask if the following are present now in the room. And then mark them as separate exhibits.

  • All files and records of the doctor and his clinic or medical organization regarding John Jones. The defendant’s lawyer will check to be sure that the doctor brought “all” files and records and did not limit the files by date or subject matter.
  • Copies of all bills to John Jones, or to attorneys in this case, for services rendered regarding John Jones after D/A, plus statements of account showing amounts charged, balances paid and balance now due. The defendant’s lawyer will check to be sure that the doctor brought not only bills to John Jones, but also the bills sent to attorneys in this case, either showing services to the patient or services to the attorneys.
  • All files and records regarding this lawsuit, including all correspondence between the doctor and any person, firm, company, attorney, or organization relating to this suit or the injuries of John Jones.
  • Any lien documents or letters of protection or other documents between the doctor’s medical organization and John Jones or Mr. Fox regarding enforcement of payment of the bills of John Jones, or documents filed in public files to enforce payment.
  • A statement of all amounts of money received by the doctor or his or her medical organization from attorney Wiley Fox, or his firm Fox Huntum and Brag, during the last two years.

As to each of the above classes of documents, after marking the exhibit, the defendant’s lawyer will ask if it is a printout of an item maintained as an electronic data file. If it is maintained as an electronic data file the lawyer will ask:

  • Did the deponent bring an electronic copy of the file also? [The defendant’s lawyer will obtain and have court mark it as an Exhibit.
  • When was the paper printout made from the electronic file?
  • Who has possible access to computer terminals that can enter or change data in the file? For example, on a letter, who has possible access to edit the copy? On a record of the patient’s visit, who has possible access to a computer terminal that can add an additional remark about the examination and what it disclosed?
  • Does the doctor have any personal, first hand knowledge, that the electronic record was not changed in any way since D/A?

When you were asked to testify about John Jones, did you have an independent recollection of John Jones, or did you have to review your medical records?

How long did you spend reviewing your own medical records in preparation for this deposition?

What else did you review in preparation for this deposition?

How long did you spend reviewing those additional items in preparation for this deposition?


Was John your patient or of your clinic/medical organization before D/A?

When was the first time you or anyone in your clinic/medical organization saw John Jones?

Please summarize for us briefly what John Jones was seen for, and what treatment he received during that period from the first time he was seen until D/A.

The defendant’s lawyer will ask for details about all items which may be related to, or have similar bodily or mental conditions or symptoms to those complained of in this lawsuit.

As to all items disclosed of interest, the defendant’s lawyer will close with asking:

Is there anything else you can recall about this visit/condition/treatment?
Are there any other records of this visit/condition/treatment?


When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A?

Who saw John Jones on this first occasion, and why was John Jones seen?

What medical history was obtained from John Jones?

What medical history was obtained from other physicians or from records?

Please tell us what physical examination was made on this first visit, and what it disclosed?

Mechanical Aids – Special Studies (electronic studies, lab tests, x-rays)?

In coordination with the initial diagnosis, were there consultations with other doctors?


What did they report to you?

[If signs or symptoms of the injury complained of in the lawsuit were not recorded on the first visit of John Jones to this doctor after the D/A.] At the time of John Jones first visit with you, you did not record John Jones having __________, did you?


At the end of the first examination, did you make a diagnosis?

What was your diagnosis of the problems of John Jones?

What facts did you rely upon in making that diagnosis?

Did you personally review x-rays or tests that you relied on?

Did you make a differential diagnosis to distinguish other causes of John Jones’s symptoms?

Are there other conditions (other than the one you diagnosed) that may cause John Jones’s symptoms?

What are they?
Why do they cause those same symptoms?


When and where was John Jones seen?

What history was obtained?

What physical examination was made and what were the findings?

Was anything observed that was not recorded?

Lab work or other tests that were done and what were the results.

Were there any consultations with other doctors? (Who? Why? Oral or written report?
What was content of report?)

If you want to emphasize something favorable to your side of the case that was recorded in the medical records for a particular office visit or hospital stay, or you want to emphasize that something was not recorded (hence you can infer it did not exist) ask the following:

Is this document, dated _________________, the record of _________ of John Jones?
It is important it is to create medical records which are truthful, isn’t it?

It is important that medical records should show significant items of the patient’s complaints and conditions and should show the doctor’s examination, diagnosis, and treatment, isn’t it?


How did your management of plaintiff overlap with that of Dr.?

What represented the jurisdiction of each?

Who was primarily responsible?


If there are favorable facts or opinions in the medical records of others, the defendant’s lawyer will ask this doctor:

Do you see any reason not to believe (fact or opinion X in the records)?

Do you agree with it?

This point has significance for the diagnosis or treatment of John Jones, doesn’t it?


What was your diagnosis of John’s problems when you last saw him?

What facts did you rely upon in making that diagnosis?

Did you actually review x-rays or tests yourself?

Did you make a differential diagnosis to distinguish other causes of John Jones’s symptoms?

Are there other conditions (other than the one you diagnosed) that may cause John Jones’s symptoms?

What are they?

Why do they cause those same symptoms?

Have you referred to any articles or texts in reviewing this case or in preparing your opinions or to testify in this case?

Do you consider those to be “reliable authorities” for you to consult?

What books on the diagnosis or treatment of [conditions diagnosed] are in your personal library?

Do you consider those “reliable authorities?”


Was the treatment you gave John Jones successful? What did it accomplish?


If someone has a broken bone, you can see that on an x-ray and it is called an “finding,” isn’t it?

But if someone says they have a headache, you have to take their word for it, and it is called a “symptom,” isn’t it?

So in basic terms, a “finding” is something the doctor can see for himself, and a “symptom” is something the doctor is told exists?

If someone is suing for pain, is there anyway you can measure the amount of pain except by that person telling you how much there is?

The term “Secondary Gain” in medicine means “The gain derived from an illness, such as personal attention and service, monetary gains, disability benefits, and release from unpleasant responsibilities,” doesn’t it?

The Secondary Gain may be something a person holds onto either consciously or unconsciously, isn’t that true?

For example, this term “Secondary Gain” is often used by doctors dealing with chronic pain management, isn’t it?

Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesn’t it?

So even if the person isn’t consciously increasing their pain, the end of a lawsuit may be a source of relief of tension and pain?


Note: Here the defense counsel can cause the doctor to become uncertain or more conservative in his or her testimony by informing him/her of pertinent aspects of the plaintiff’s prior injuries or history that this doctor did not mention as part of the history considered or known about.

Would your opinion change if you knew that ___________?

Did you know that in fact that John Jones had ___________?

Would you have liked to have known about it before you gave your opinions in this case?

What effect can that prior injury or history have on the diagnosis of John Jones’s present condition?

That prior injury or history can affect a decision on how much of John Jones’ condition is due to his prior injury/history and how much is due to the accident he is suing about, can’t it?

Did you try to separate out how much of John Jones’ condition is due to his prior injury/history and how much is due to the accident he is suing about?


Failure of John Jones to follow directions of doctors could have affected his present condition, couldn’t it?

Did you try to separate out how much of John Jones’ condition might be due to his own failure to follow medical directions?


Medicine is not an exact science, is it?

Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isn’t that true?

You do not know what is going to happen to John Jones in the future, do you?

Tell us some of the things that you cannot predict with certainty about John Jones?

Future complaints or subject symptoms.
Future conditions or impairments.

You wouldn’t want to guess about those things, would you?


You testified that [the defense lawyer will summarize the the most helpful statement this witness has made that will provide ammunition at a trial or a settlement].

Consequently, we all can leave here knowing there is no mistake that [summarize again]. Is that correct?