In nearly every neck injury case, the defense lawyer just loves bringing up the x-rays reports on cross exam and showing the “normal results” to the jury. You know that is BOGUS and misleading. How do we take the upper hand and reveal the truth in our cases? I am going to share some suggestions to expose this charade.
First, in direct exam of the treating doctor, I go over the following testimony beforehand to make sure he agrees with the concepts below. I have never had a doctor disagree with the following:
Q: Doctor, when a patient comes to the hospital for the first time after a trauma, especially in an ambulance, do they typically come to the ER?
Q: And that is the same facility where people come for life and death trauma following such things as car wrecks, falls, burns, explosions?
Q: And what is the purpose of ordering x-rays?
A: To reveal broken bones.
Q: And could a fractured neck be a life or death situation, an emergency?
Q: Is a ligament or a disc injury a true emergency that is a life or death situation?
A: Not usually.
Q: And can a patient have a serious injury in their neck without having a broken bone in their neck?
Q: Are x-rays the primary tool used to diagnose cervical disc injuries?
Q: Why not?
A: They reveal boney structures and spacing. The MRI is the best tool we have to look at soft tissue areas of the body.
Q: Is that why patients who leave the ER are told to follow up with another doctor in a few days, so the doctors and nurses can move on to the next patient in the emergency room?
In Opening, we can undermine the defense argument with this testimony by explaining that an x-ray shows broken bones, not herniated discs. And in this case, my client has never claimed to have a broken neck. So when the defense attorney gets up here and keeps saying (a la Barney Fife) …“Negative X-ray; Negative X-ray!!!” keep in mind that it means nothing in the context of a herniated disk; like it’s some big important fact in this case. Keep it in context.
If the defense keeps making a big deal about it, in Closing argument I will put it in true context. Think about the analogy you need to use. The x-ray does not show the right picture. It’s not the right tool/camera for the job. It does not adequately measure discs.
Think of a job where it is important to be precise, and how that “preciseness” is measured. A couple of everyday things immediately pop in my mind. Think of a jeweler. They have to precisely weigh diamonds. Do you see them with a big ole honkin’ bathroom scale in their stores? No! My 2 year old daughter wouldn’t even register on my bathroom scale until she weighed over 25 lbs. My scale simply is not calibrated for any weight under 25 lbs to show up. Even if it does show up after 25 pounds, it only goes up after that to the nearest half pound.
So the analogy here is that if I used the same logic as the defense lawyer is using in this case, when my daughter weighed under 25 pounds and stepped on the scale, then, according to the defense, my daughter does not exist! Of course they are wrong if they say my daughter Ella does not exist. They are equally wrong to say that my wonderful client has no cervical disc herniation just because it did not show up on the x-ray.
There are several other analogies to show the fallacy of the defense argument. The above is one I have used to the significant amusement of the jury with a picture of my little angel on the scale. You could also use an analogy of using your I phone to take a picture at the airport of someone trying to sneak in a bomb on an airplane. The iPhone is the wrong tool. You need a different type of machine. You don’t use a gallon jug to measure how many cc’s of medicine a doctor is going to give you. These are all off the cuff. You can think of even better ones, I am sure.
I love going to my farm, sitting on the front porch with a cool beverage and pondering the nuts and bolts of what the defense is trying to do to the jury in my trials. They are always trying to “Confuse the jury; Question everything, and Prove nothing.” This is a mantra I came up with in a trial long ago that I have used ever since, because it is the absolute truth.
Remember, you can never settle your case for what a jury might provide your client at trial. Try your cases… or at least get it into the hands of someone who can.