Donathan v. The Orthopaedic & Sports Medicine Clinic, United States District Court, Eastern District of Tennessee at Chattanooga, February 2, 2010.
[Malone comments are throughout the transcript in red]
Sometimes an opportunity for good cross-examination rears its head in the middle of trial. That happened in a malpractice trial in federal court in Chattanooga, TN. Randy Kinnard represented Bette Donathan, a middle-aged woman who developed a spinal hematoma (blood clot in the space next to the spinal cord) that paralyzed her legs. Her side argued the paralysis stemmed from improper use of an epidural catheter (a tube delivering pain drugs close to the spine) for pain control after surgery for a broken leg from a car accident. They also argued the chief doctor for the patient had ignored the symptoms of the swelling blood clot.
The defendant surgeon called as an expert witness an orthopedic surgeon named Joseph Wade, M.D. During the direct examination, defense counsel referred repeatedly to a key date in the case, April 16, as “Easter Sunday”—“Dr. Wade, on this Easter Sunday, did the orthopedic surgeon come to the hospital at about 6:30 a.m.?” And, “Dr. Wade, on this Easter Sunday morning at about 7:30 a.m., was the orthopedic surgeon by the bedside of the patient, carefully looking after her?” And, “Dr. Wade, in your opinion, on this Easter Sunday, did the orthopedic surgeon deviate from the standard of care in any respect?”
The questioning seemed to imply, without stating directly, that the patient was lucky to have the attention of any health care provider on this religious holiday.
Kinnard could have waited for closing argument to point out how flimsy the “Easter” excuse was. But his adversary had used a cognitive trick that would have been dangerous to leave alone. So Kinnard wisely started his cross with the passage below. This improvised opening of his cross is followed by a brilliantly executed attack that shows how the cross-examiner trapped the adverse witness into criticizing either the party that brought the witness to court or a co-defendant, neither of which were good options for the witness.
Q Good morning, Doctor. My name is Randy Kinnard, and I represent Bette and Ben Donathan.
Q We haven’t met before, have we?
A No, sir.
Q I notice defense counsel referred to April 16th as Easter Sunday. You were born in 1962?
A Yes, sir.
Q When you were six, I was in Vietnam. Okay?
A (Witness moves head up and down.)
Q We had New Years Day, Easter, July 4th, Thanksgiving, Christmas Day. We were in the jungle fighting the enemy. Do you think we let our guard down on Easter?
[A quick slice of personal biography can work well to connect cross-examiner to jury. It might be technically objectionable, because counsel is arguably “testifying” about his own personal experiences, but it works here because it happens fast and is immediately linked to a relevant bit of the witness’s testimony.]
Q You’re right. In your profession, not only in your profession, but there are a lot of professions where people have to work on holidays. True?
Q Firemen, policemen, pilots, air traffic controllers, all kinds of people have to work on the holidays, don’t they?
[A good cross-examiner like Kinnard instinctively looks for ways to broaden the point from the profession in the trial spotlight, medicine, to more familiar callings that relate to the jury and, not coincidentally, help gently pull medical professionals off their pedestals.]
Q And they still have to be careful and be safe. True?
[The motto here might be: Regular words for regular people! Think how much less effective this would have been had Kinnard not used “careful” and “safe” and instead talked about “following professional standards of care.”]
Q So, in your profession, you have to be careful on a holiday just as any other day. Is that fair?
A Yes, sir.
[A more cautious, and less effective, cross-examiner would have stopped right here. After all, he has made the point, sort of, at least enough to get by on a “save it for closing” theory of trial practice. But the next question drives home the point and fully punctures the “Easter” defense.]
Q So, the standard of care in this case on April 16 was the same as it would have been on Monday or Wednesday. Do you agree?
A Yes, sir.
[Although set up on the fly, this piece of cross was structured as a logical syllogism that marched from general to specific:
• Lots of professions/occupations have to work on holidays;
• Everyone who works on a holiday has to be as careful and safe as on any other day.
• Medicine is one of those professions.
• The medical standard of care is the same on a holiday as on any other day.]
Q Okay. I want to talk with you about one thing really. And that’s this April 16, Sunday, the time when Dr. White is called up to the ICU. This is what I really want to focus with you on. Okay?
[The cross-examiner is posting signs to guide the jury in following the path he is leading them down.]
A Yes, sir.
Q You agree that this is a team effort, don’t you?
A Yes, sir.
Q Looking after this patient on that Sunday. You had Dr. Reimers there. You had a nurse in the ICU. And you had Dr. White who was part of the team. Correct?
[The “team effort” questions set up what follows about the failure of communication among team members. It might have made for an even better prelude with one more question: “Part of what marks a good medical team is communicating clearly with each other, true?”]
Q And I need to look just a second at some of the things that haven’t been discussed at all yet in this record or that there has been very little discussion about it. This is at Page 111, Doctor. You ought to be able to see this okay. At 8:30 she gets a narcotic. Right? Up here.
A Yes, sir.
Q All right. So, she’s getting narcotics. And at 8:30 she’s sleeping. See that?
Q So, 9:30 she’s sleeping, isn’t she?
A Yes, sir.
Q I highlighted that in pink, I guess, there. Then at 10:00 she’s up in the chair without difficulty. Right?
A Yes, sir.
Q Then at 10:30, Dr. White comes by. And there has been testimony that everything was looking good at that time. Are you with me?
A Yes, sir.
Q Okay. Then at 10:45 she has some pain in the right leg and they give her a narcotic again. Right?
Q Excuse me. That’s the anti-inflammatory?
A Yes, sir.
Q Okay. Excuse me. Now, at 11:00, she, obviously, is sitting up in order to have her hair washed. Right?
Q And a nurse is taking her head and washing her hair. Right?
A Yes, sir.
Q Of course. And we all know that the spinal cord runs from the base of the brain down, all of the way down as far as it goes in the back. Right?
A Yes, sir.
Q All right. And, now, Bette Donathan screams. Right?
A Yes, sir. That’s what’s written.
Q And you can imagine the shock on the nurse when this happens, the perfectly normal patient recovering nicely after surgery and, now, she’s washing her hair and she screams. Highly unusual, isn’t it?
A Yes. Not a common thing.
[Note how the questions stick closely to the facts except for narrow common-sense opinions: “highly unusual?”]
Q And she complains of—I’ve taken a list. I have a list here, Doctor. I’ve taken it from these records because this gets kind of confusing when you look at it, but this is all from the record. Screaming in pain. She’s talking about left hip and her back and leg cramps. She’s letting the nurse know. The nurse is asking her, obviously, we’ve recreated this. We’ll try to recreate this. She screams in pain. The nurse had to say to her what’s wrong. She said, my left hip and back is hurting, and I have leg cramps. And she tells the nurse I can’t get any relief. She’s put back in the bed. She’s repositioned in the bed and she’s turning and she can’t get relief. She says more to the nurse, I have cramps in my legs and now it’s in my upper back. And then this record shows she now has numbness in my legs. These are all things that you told Mr. Geracioti are consistent with a spinal hematoma. Correct?
[An important question that links the patient’s suffering to the liability issue. Note how the question can extend far longer than the usual cross question because it’s all based on established records admitted into evidence.]
A Could you scan that down so I can see the top of your list?
Q Scream in pain. Left hip. Back. Leg cramps. Can’t get relief. Cramps in leg.
A All of those could be symptoms of a spinal hematoma, yes.
Q Okay. Now, these are in the nurses’ notes. And before Dr. White comes up, do you remember from the facts that Dr. Reimers made a note. Do you remember that?
A I know that Dr. Reimers made a note. I don’t know exactly when that note was written relative to Dr. White being there.
Q I understand. We’re just talking about she obviously observed things and talked to the patient. True?
A Yes, sir.
Q Regardless of when Dr. White saw this note, Dr. Reimers makes these observations. And we see an entry here at 11:30. Do you see that, Doctor?
A Yes, sir.
Q Now, let’s focus more on what this page has. It’s telling Dr. Reimers. Dr. Reimers obviously asked her, hey, how are you. Excruciating cramps in hips, left greater than right. Correct?
A Yes, sir. That’s what the note says.
Q It’s in my bones. Right?
A That’s what it says, yes, sir.
Q That’s deep, isn’t it?
Q This is a serious problem, isn’t it?
A Well, I don’t think we know that yet. I mean, those are certainly serious complaints. We don’t know what the problem is yet.
[When the cross-examiner encounters minor quibbling with his question, he adjusts the next question accordingly by echoing what the witness has just said.]
Q We don’t know what the problem is, but the patient is telling these people things that are serious. Right?
A Well, again, we don’t know if they’re serious or not. The patient’s complaints sometimes lead to not serious findings. Those are complaints that she was hurting significantly. I agree with that.
Q It does say moaning. This patient is moaning, crying and diaphoretic. It means she’s sweating she’s in so much pain. This is not good. Fair?
[The question translates medical jargon into English and then immediately asks for a common-sense opinion: “Not good, fair?”]
A Again, those are very significant complaints, yes.
Q This is another note by Dr. Reimers. Now complaining of numbness in what, Doctor?
A Left lower extremity.
Q Unable to raise leg. Do you see that?
Q Now, looking at Dr. Reimers’s note, I think that you’ll agree that what happened was that the patient was sitting up having her hair washed, she screamed out, and the record shows she’s back repositioned in the bed and she’s tossing in the bed. Dr. Reimers comes along. And Dr. Reimers talks to the patient, also. And she does an exam likely while the patient is lying flat on her back in the bed. Correct?
[The patient lying flat on her back in the bed is one of those vivid details that conjures up a mental impression and helps the jury remember this line of questions.]
A I mean, I assume it would be, yeah. I mean, I can’t say that for sure, but that’s most typical.
Q Well, let’s look at her note. You see she’s got some notes there about testing pulses somewhere on there. There it is. Right there. See that? Now, that is totally possible and probable that the patient is now lying on her—in fact, right now is the time I need to go over there, Your Honor, if I could. (Brief pause.) Now, she’s probably on her back. And the doctor can feel the pulses in her ankles you know if you came in the room, I’m flat on my back, you could feel my pulses in my ankles. Right?
A Yes, sir.
Q If you’re thinking maybe I’ve got a vascular problem or something, see how my pulses are doing. True?
A Yes, sir.
Q So, Dr. Reimers could stand here and feel this and feel for spasm and not feel anything. True?
A She could feel for spasms and not feel spasms. Is that the question?
Q Right. She says no spasm palpable.
A Sure. She could feel somewhere and not feel spasms. Yes. Yes.
Q Well, the point is, Doctor, she’s on her back. Right?
A Well, I mean, again, the way you’ve presented it, I assume that. And it’s more than likely correct, but I don’t know that for sure.
Q Well, I don’t know either, Doctor, but I’m just thinking of probabilities here. Okay. Now, we continue our list of Dr. Reimers’s entry, moaning, crying, sweating. And Bette Donathan tells Dr. Reimers I have numbness in my left lower leg and I can’t raise my left leg. If she’s on her back and she can’t raise her left leg, that could be due to pain. Correct?
A Yes, sir.
Q It could have hurt her so much. In fact, Dr. Reimers could have said, raise your left leg for me. She said, I can’t, it’s killing me. That could have happened?
[Again, the vivid details put the jury into the patient’s room. Note how a cross-examiner has the freedom to suggest inferences from the facts with an adverse witness that the examiner could never do with his own witness.]
A Yes, sir.
Q All of this happened, as you understand it, Bette Donathan told all of these people all of these things. Right?
A That’s what’s recorded, yes. So, yes, I think so.
[The lawyer has been building a box around the witness to create an impossible choice for the witness. Now he closes in. The questioner puts the defendant Dr. White into the liability spotlight, for missing all these significant symptoms.]
Q Before Dr. White gets there. Right?
A Yes, sir. I would say at least part of them were before Dr. White got there, yes.
Q Well, do you think part of it was while Dr. White was there?
A Or some of it could have been shortly after. I think Dr. Reimers and Dr. White were there at about the same time at this time frame, so when each part of that was said would be hard to know, but.
Q As the jury well knows by now, I cannot draw, Doctor. But we have a Nurse Hazard in the intensive care unit. Right?
A Yes, sir.
Q We have Dr. Reimers at the bedside of the patient. True?
A Yes. At some point she was there, yes.
Q And Dr. White comes up stat to the ICU. True?
Q You have two people, Dr. Reimers and Nurse Hazard, that Bette Donathan has given a world of information to about the problems that have happened to her. Correct?
[See how the examiner has set up a box around the witness – bringing out in detail all the key facts – the “world of information” – that two other members of the medical team recorded in the medical chart. Then the next question ropes in the doctor whom this witness is trying to defend, and it poses a terrible choice for the witness.]
Q Are you telling me, Doctor, that somehow these two team members right here did not tell Dr. White any of the things that Bette Donathan had complained about? Are you telling us that?
[Note the choice offered: the defense expert can dump on the two team members whom he is not defending, by answering “yes, they failed to communicate with my doctor,” which already seems dubious based on the vivid setup of all the dramatic details recorded in their notes. Or, the expert can implicate his own doctor by admitting that she must have known key facts reflected in the other providers’ notes but not her own. Or, the witness can try to duck the question. You don’t have to be a psychoanalyst to figure out what the witness is about to do: he ducks.]
A Well, I think you’re asking me to sort of speculate on what was said. All I’ve commented on is what Dr. White wrote in her progress note. I can’t make any comment on what anybody else said. She did not include that in that note if it was told to her.
[The witness has tried to derail the line of questions by saying he doesn’t really know what was or wasn’t communicated among the medical team members. This gives the cross-examiner a good reason to turn to the inarguable rule: the medical team is required to protect the patient, and that requires effective communication.]
Q Well, how—this team is supposed to be protecting this patient. Right?
A That would be the goal, yes.
Q How could a team of three people, two with very important information, how could a team member not know all of this?
[This is the very question an attentive juror would ask at this point. It’s posed in a non-leading way, which lends the question more power. Again, it puts the defendant the expert is trying to help in a harsh light.]
A Well, Dr. White came out of surgery, came up, took a history, documented what she took, whether she specifically spoke to the nurse, whether she spoke to Dr. Reimers, I’m not sure. That may be in there somewhere, but I’m not sure I have that in my memory whether she specifically documented that she spoke to them about these complaints. She documented what she did, that didn’t include any of those. I have to believe that she did not know about those at the time that she made that documentation.
Q Somebody should have gotten that information to Dr. White. Do you agree?
A Well, either to Dr. White or, I mean, Dr. Reimers had full ability to recognize and move on it if she knew these things as well.
[The witness plays dodgeball again. He gives a non-responsive answer that tries to shift the spotlight to another doctor, away from the defendant the witness is supporting. The cross-examiner has three choices here: 1. Scold the witness for not answering the question and try it again; 2. Take the witness’s bait and diverge into a discussion of the other doctor; 3. Try a different question that keeps the spotlight where the cross-examiner wants it. Either the first or third would be good tactical options for keeping control. Kinnard goes with No. 3. See how he gently deflects the bait offered by the witness, agreeing with the witness and promising to return later to that topic.]
Q Yes, she did. We’ll come back to that in a minute. I made a note, Doctor. Mr. Geracioti asked you about what did the standard of care require of Dr. White when she came up. And the standard of care required her to get a history, didn’t it?
Q What’s been going on. Correct?
A Yes, sir.
MR. KINNARD: Your Honor, may I pass this Webster dictionary up?
THE COURT: Give to it Ms. Scott and she’ll give it to him.
Q Okay. Would you look up the word history for us, please?
A Yes, sir.
Q Would you read what Webster says history is?
A An account of the past.
Q And that’s what a history is that you doctors get. You want—not only do you want how are you feeling, but what has led up to this. Correct?
[It might not have been strictly necessary to hand up the dictionary to the witness for a fairly ordinary meaning of a word. But never underestimate the power of a plain English word definition, which links the jury to the unfolding testimony. The dictionary also works here because its presentation slows the pace and highlights the importance of what is to follow.]
Q And the standard of care is to ask not only how are you, but what has led up to this. Correct?
A I think everybody would ask it in different ways, but, yes, you want to know how they are now and what is, what’s been going on to lead to the pain or place that you are now. Yes.
Q You’d want to know as a careful surgeon what has happened since I was last here to you, Bette Donathan. You’d want to know that, wouldn’t you?
[Note how this question simply restates what the witness has just said, to reinforce and underline its importance for the jury.]
Q Well, what did Dr. White say she asked Bette Donathan?
A I’m not sure that that was recorded, exactly what she asked. I mean, I remember well the note that Dr. White wrote, I believe, but what she asked, I’m not sure that I know where that would come from in the record.
Q Did you read Dr. White’s deposition to form your opinions in this case?
A I did.
Q You relied upon it?
A I did.
[The skilled cross-examiner has just laid the technical foundation under the Rules of Evidence to show the witness a piece of someone else’s testimony that otherwise might not be admissible at this point. The nearly universal rule, as set out in Fed. R. Evid. 705, is that out-of-court statements relied on by an expert are fair game for cross-examining the expert. Many trial lawyers forget the power of this rule, which lets the cross-examiner pile up a cafeteria tray full of tasty morsels of testimony from other witnesses’ depositions (plus other facts the expert looked at) and put them in front of the witness and jury, as soon as the cross-examiner has established that the source of the quotation was something the expert relied on in forming the expert’s opinions. Best of all, since these are other people’s words being quoted, there is no risk of the witness saying, “You are not understanding what I was saying in that passage.”]
Q Well, to refresh your memory, Page 56, Line 24. The question to Dr. White was. And did you determine that she even complained of that before you were trying to get an MRI done? And her answer was, I can’t remember if she, if she had. I hadn’t been told about it and she didn’t tell me because when I sat down and I talked to her and I looked her in the eyes, and I said, describe your pain to me. Tell me exactly what you are feeling. Do you see that, Doctor?
A Yes, sir.
Q I don’t see anywhere in here that Dr. White said tell me everything that’s happened to Bette since I was last here, what’s been going on. Do you see that there?
A That’s not there, no.
[The deposition transcript wasn’t as clean as it might have been, since the deposition questioner didn’t ask, “Tell me everything you did to obtain the history that you wrote in your note.” But most depositions are messy, and the cross-examiner is well advised not to let the perfect be the enemy of the good. In other words, don’t forgo using a good impeachment quotation from a deposition just because the quotation isn’t a model of clarity – especially if you can use the quotation with a different witness, so there is no risk of the witness saying “That’s not what I meant.”
Here, the deponent’s words – “I said, describe your pain to me. Tell me exactly what you are feeling” – seem to suggest the doctor only asked for the patient’s present sensations, not what had come before. Of course, if there was another spot in the deposition where the doctor said she did ask the patient to recount everything that had happened since the doctor had last seen the patient, then that would make for excellent redirect examination, and would be a good reason not to use this particular piece of the defendant’s deposition on cross of an expert. Since I know Randy Kinnard is cagy enough not to create openings like this for his opponents, it’s safe to assume the quotation he did use was as close as the defendant came to describing in her deposition how she took the patient’s history.]
Q It should have been there, shouldn’t it?
A Well, I think we can all argue about the way we ask patient’s questions, but if you, if you go to a patient within a few minutes of these other events happening and you tell me what’s happening to you now, I think that I would certainly believe that the patient is going to recount the last few minutes and not just those instantaneous few seconds that I’m sitting there.
[The witness has an excuse for his doctor’s not asking the right question: essentially, he says: “doesn’t matter because the patient would give you the information whether or not you ask the right question.” Kinnard’s response shows he has anticipated the answer and is ready to show why it’s wrong. If Kinnard had been doing a more traditional, uptight cross, he might have groused, “Well, doctor, I asked you a yes/no question. ‘It should have been there, shouldn’t it!’ What’s your answer, yes or no!” This is a good example of why traditional cross-examination techniques often don’t work, because they nudge the lawyer to descend into nitpicking argument over whether or not the witness has answered the question. When you look at the question and answer above, the answer is responsive, even if it strays beyond the simple yes/no the question asked for. True, it might have been more obviously responsive if the witness had started the answer with, “Not necessarily, no. I think we can all argue …” So Kinnard, having listened carefully to the answer, is ready to meet the witness on the merits of what the witness has said.]
Q Well, you know, before Dr. White came along, they gave her, not only had she been getting narcotics that morning, they gave her morphine. Do you remember that?
A Yes, sir. I believe so.
Q And Nurse Hazard has testified that this entry right here means that the patient stopped breathing. She passed out. And Nurse Hazard was so worried she called for the people that help patients with breathing problems, that department known as respiratory therapy. And they come running up there. And Nurse Hazard said she was out. She had stopped breathing. And then she said I rubbed on her chest. I yelled at her to try to get her to come to. And Nurse Hazard was very, very worried. Okay. Assume all of that is true. Now, Dr. White—there is an entry at 11:52. And at 11:54, patient more alert. Do you see that?
A Yes, sir.
Q That means that Nurse Hazard was worried this patient, I could lose this patient, she’s not breathing, she’s out, and, now, thank God, she’s more alert. Okay. Assume those facts are true.
A Yes, sir.
[Foundation laid. Trap is sprung:]
Q Who is a better historian about what’s been going on, a woman who’s coming out of this phase she’s in and this state, having had narcotics, passed out, stopped breathing, Bette Donathan, or Dr. Reimers and Nurse Hazard?
A Well, if I assume everything that you’ve said, I might say Nurse Hazard would have been.
[Kinnard doesn’t let the witness get away with blaming the patient for the failure of the doctor to get the full history.]
Q And Dr. Reimers?
A I’m not as sure if Dr. Reimers was there early enough to have been a better historian, maybe so. But it seems to me that Dr. Reimers got there after the patient had already been sedated. Is that not true? If what everything that you say is true.
Q She had had some narcotics. She got there. And the record will show when Dr. Reimers was there. And my last question to you, Doctor, is you gave a statement in this case that you signed about your opinions in this matter. Remember?
[The cross-examiner has veered off a bit abruptly from his last, powerful line of questions. He might have ended even stronger if he had asked a few more questions tying together what he has just established: (1) two medical providers got the important clues about what was going on with the patient, (2) the other doctor whom this witness was trying to protect didn’t get the vital information, (3) it wasn’t the patient’s fault for the doctor missing the information; (4) if these three providers had just talked to each other, they could have figured it out. All of that has come out, though, albeit a bit fragmented, so this is probably a mere quibble by me.]
A Yes, sir.
Q Okay. And is it your opinion that an epidural catheter placed for post-op pain control should not have been used in Mrs. Donathan’s case?
A That’s my opinion, yes.
MR. KINNARD: That’s all, Your Honor.
[The cross-examiner finishes the cross with a quick in-and-out detour to another key issue in the case, whether the epidural should have been used at all. This witness was not on board with the rest of the defense team on this point. Under the “start strong, end strong” advice for a good cross-examination, this nugget was nicely placed at the end of the cross.]