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Cross-Examining Defense Experts With Their Own Ethics Rules

As I write this, I’m sitting in a hotel in Houston, Texas. I’m here for depositions of some out of town medical experts. So I thought I would share a great tip for cross-examining defense medical experts: Use their own ethics code against them.

Nearly every medical expert belongs to some sort of professional group that has an ethics code. The American Medical Association, American College of Surgeons, the American Psychological Association, and American Association of Neurology all have their own ethics rules. So do most other medical professional groups. Sometimes they even have specific guidelines for giving expert testimony. These can be great fodder for cross.

Most of their members are aware these ethics rules exist but are unfamiliar with their content. If they have ever read them at all, it was usually years ago. But they really have no choice but to admit that the rules exist and that they are governed by them. I mean really, who would refuse to admit to being subject to their own professional group’s ethics rules?

Friday I cross-examined a neurologist who was rendering opinions on causation based solely on treatment he had given the plaintiff two years earlier over a three day period, out of six years of the plaintiff’s medical treatment. I knew he had not read the entire medical record- not the four years of records from before he saw my client or from the two years after.
So I asked him this set of questions:
You are here in your role as a neurologist?
Because you have knowledge and experience in the field of neurology that a layman does not, right?
You are offering opinion testimony in this court case based on your knowledge, training experience, and your treatment of Mr. Smith?
You are a member of the American Academy of Neurology?
You consider yourself bound by the AAN Code of Professional Conduct?
Please take a look at what has been marked as Exhibit 2, which is a copy of the AAN Code of Professional Conduct.
Allow me to direct your attention to §6.4- Legal Expert Testimony.
Please read the second sentence of §6.4- “Before giving testimony the neurologist should carefully review the relevant records and facts of the case and the prevailing standards of practice.”
Do you agree with that statement?
Have you “carefully reviewed the relevant records and the facts of the case?”
As of last Friday, you had never seen any medical records relating to Mr. Smith except the ones you created, correct?
And at that point, you had not even seen your own records since they were created in 2009?
Have you now seen any of those records? When did you look at them, how much time did you spend reviewing them? (He first saw them when he arrived at the deposition.)
As of today, have you reviewed any of the records other than your own?
You have never seen the records from the four years of medical treatment before you saw him?
You have never seen the medical records for the two years of medical treatment Mr. Smith has had since you last saw him?
Have you ever read the whole 1500 pages of medical records in this case?
You would agree that a physician who had reviewed the entire medical record would have more information available to him than you did?
Do you agree that having more information would be helpful in rendering an accurate opinion?
A physician who had access to more information than you would be more likely to render an accurate opinion?
If you had read the entire medical record, there could be things in there that might impact your opinions about Mr. Smith, couldn’t there?

You get the idea. This is just one example of how to use a medical expert’s own ethical obligations against him. There are a million things you can pull out of these various ethical codes that can be helpful in cross. It just takes a little research, and luckily most of these ethics rules are available for free on the internet.
So be creative, and have fun!

  • Here‘s the American Medical Association’s Code of Medical Ethics Opinion 9.7.1.