For the active auto practitioner accompanying clients to defense medicals - or arranging for others in your office to do so - can be a time-consuming and unproductive undertaking. All too often, accompanying your client to a defense medical is little more than a hand-holding experience with little gained in terms of influencing the kind of report you’ll receive or acquiring information from the exam itself which will assist you in handling this client’s file to conclusion. Increasingly, our office is utilizing the nurse consultant to accompany our clients on defense medicals in order to free-up lawyer, paralegal and secretary time and to increase the likelihood of obtaining information from the examination itself that can assist us in successfully handling the claim to conclusion.

A properly credentialed nurse consultant will be familiar with the components of the standard orthopedic, neurologic or related fields typically involved in auto defense examinations. After retaining the nurse consultant, we typically send copies or a summary of our client’s medical records with a request that the nurse consultant meet our client at least 15 minutes before the scheduled examination. We always apprise defense counsel and the examining physician that our plaintiff will be accompanied by a representative of our office who is a nurse consultant. Naturally, we advise our clients as much in advance of the scheduled defense medical that a representative of our office, who is a nurse consultant, will accompany them to their defense medical and discuss their case and what to expect during the examination. When relevant, a nurse consultant can also arrange to secure x-rays and other films which might be required to be brought to the defense medical examination.

In addition to preparing your client for the defense medical, the principal purpose for employing the nurse consultant is to obtain a detailed written report describing the history taken and physical examination performed by the defense doctor. The nurse consultant will carefully note the amount of time devoted by the defense doctor to each component of the history taking and physical examination and any other parts of the defense medical, i.e., looking at films, studying other reports, dictating. Well-trained nurse consultants can detect and report subtleties of responses in your client which you and your staff could easily miss in observing the defense medical. Good nurse consultants will highlight parts of a defense medical which are not performed properly, not recorded properly, or perhaps not done at all. An obviously well-trained nurse consultant can sometimes keep the examining doctor more “honest” than an obviously untrained paralegal or associate lawyer in your office. Rarely does the nurse consultant devote more than three to four hours in preparing for the examination, accompanying your client on the examination and preparing a report which makes the cost to you, as the lawyer, rarely over $250.00 per examination.

After receiving a copy of the defense examiner’s report, we almost always send a copy to our nurse consultant and ask that she review its contents against her own notes and report. In negotiations with adjusters following receipt of a defense medical, we often employ findings of our nurse consultants in discussing and negotiating findings of the defense doctor as they affect evaluation of the case. In certain cases, we don’t hesitate to send a copy of our nurse consultant’s report to the defense insurance adjuster if we think it will help our negotiating position.

If the benefits of using a nurse consultant were limited to the matters discussed above, it would be well worth the cost in almost every case. In some cases, however, use of a nurse consultant can be greatly expanded by considering her as a rebuttal witness to the testimony of the defense doctor to whom she and your client paid a visit.

It is well settled in Pennsylvania that a litigant is entitled to introduce evidence, typically testimonial, on rebuttal at the close of the opposing party’s case to refute evidence presented by that opponent. Flowers v. Green, 420 Pa. 481, 218 A.2d 219 (1966); Schoen v. Elsasser, 315 Pa. 65, 172 A. 301 (1934); Foster v. McKeesport Hospital, 260 Pa. Super. 485, 394 A.2d 1031 (1978); Elliott v. Miller, 60 Lanc. Rev. 109 (1966), rev’d on other grounds, 206 Pa. Super. 536, 214 A.2d 351 (1966). Allowing the use of a rebuttal witness is squarely within the discretion of the trial judge and should be limited in its purpose to one or more of the following reasons only:

Note that rebuttal may also include calling an expert witness. Fidler v. Woodchips, Inc., 11 D & C 3d. 778 (1979). Note further that it is improper use of rebuttal to introduce evidence that should have been introduced earlier or that is cumulative of earlier testimony. Klyman v. SEPTA, 331 Pa. Super. 172, 480 A.2d 299 (1984). These are the grounds upon which a trial judge will most commonly deny your offer of a rebuttal witness or rebuttal evidence. Make certain that in calling a rebuttal witness that you are not using that witness to establish an element of your case in chief on which you have the burden of proof and which should have been established in your direct case. Also, if you are asked for an offer as proof as to your rebuttal witness, make certain that his or her testimony is narrowly drawn, directed to specific and clear points and, perhaps most importantly to the trial judge, brief in duration.

A true rebuttal witness need never be identified to opposing counsel or the Court prior to trial. For this reason, it is important that you properly and effectively cross-examine the defense doctor who has examined your client in order to make your subsequent use of the nurse consultant permissible by the trial judge, i.e., a “true” rebuttal witness, as well as an effective one in terms of the reasons for which you are calling this witness.

In the trial of auto cases in Philadelphia County, we are all acquainted with certain orthopedic and neurologic physicians who are frequently used by the defense. These physicians are used frequently because they are well-credentialed, thorough and effective expert witnesses with much experience before juries. In many cases, there is not a lot you can do with defense expert opinion except point out potential bias, a failure to consider certain items or things concerning your client and, in final analysis, rely upon your own expert and/or treating physician to rebut the defense expert. How many times have you heard of plaintiffs’ attorneys “going after” defense doctors on the basis of the “defense bias”, i.e., they only do defense work, a substantial part of their practice is defense work, etc., only to have this strategy backfire by having the jury view you as being unfairly attacking of the defense expert or otherwise sounding too “whiny.” The proper use of the nurse consultant can sometimes take you out of this dilemma.

Review your nurse consultant’s report and the defense medical report with great care and select one, two, three, but no more than four or five points which you think are important and make certain that they can “score” with the jury. Make certain to “set up” the defense doctor during cross-examination so as to bring in the points on rebuttal through your nurse consultant. For example, most doctors spend precious little time actually examining the plaintiff and often fudge or flat out deny how little time they spend on this part of their examination. If you know from your nurse consultant that the defense doctor spent eight minutes examining your client, make certain to ask the defense doctor directly if it isn’t true that he or she has spent only eight minutes examining your client. If the defense doctor admits this, you’ve made your point. If the doctor fudges on it or, as in many cases, indignantly denies that he could have performed his examination in only eight minutes (for which you have already established he was paid $1,000.00 or more!), you have just set him up for the rebuttal witness on this issue.

Another example of this technique might involve the plaintiff with either cervical or lumbar radicular complaints and the manner in which the doctor tries to evaluate such symptoms in his or her examination. Not uncommonly, the doctor may fail to use one or more clinically objective criteria for evaluating radicular components which you can highlight through your nurse consultant on rebuttal. I have had physicians claim on the stand, for example, that they measured grip strength (an indicator of neurological/radicular involvement in some cases) by use of certain grip meters when, in fact, the nurse consultant, in her report to you, indicates something to the contrary. Under these and similar circumstances there is no more effective use of the nurse consultant as rebuttal witness than to prove a doctor wrong! It also takes you as the cross-examiner off the hook from directly attacking the physician who in all too frequent cases can “talk himself out of it” or be otherwise rehabilitated by effective defense counsel. The beauty of a good rebuttal witness is that it is typically the last word on the issue and leaves your opponent with little opportunity to blunt this witnesses’ effectiveness.