Trial Tips - Cross Examination of a Pain Management Specialist by Frank Scahill

Dr. Leon Reyfman is a pain management specialist, licensed in New York from 2007. His fee for testifying is $6,000 and he has appeared in Court for plaintiffs 12 to 13 times from 2008. His referrals frequently come from Dr. Michael Gerling, an orthopedic spine surgeon who he met at S.U.N.Y Downstate in 2007. His pain management procedures include epidural injections under fluoroscopy, and percutaneous discectomies, procedures that have become as common as an Xray on our litigation files. Critical to a plaintiff alleging future medical expenses, a pain management physician can testify as to the need for future medical treatment, essentially placing the ball on the tee for the plaintiff's economist to discuss the cost of the future treatment. In a 2015 case in Queens, Dr. Reyfman gave the following opinion on future treatment:

"My opinion is based on the fact that she still has lower back pain, her diagnosis would be at this point failed surgery syndrome. She will need further care with conservative treatment, physical therapy several times a year and pain medications. She will need intervention treatment with injections, the injections would be an epidural destroyed, lumbar facet injection, she may need a radio frequency ablation. This procedure is done to destroy the nerves that give sensation to these joints. She may need a procedure that's called spinal cord stimulator, a surgical procedure done for a patient that had surgery."

How do you cross examine a pain management physician? What do you highlight and what can you do to blunt the effect of this testimony? In Halina Imran v. R. Barany Monuments Inc, (21083/12), Paul Duer obtained a defense verdict before Judge Ritholtz on the issue of causation where the 45 year old plaintiff underwent L5-S1 posterior spinal fusion with instrumentation by Dr. Gerling and subsequent pain management by Dr. Reyfman. In his cross examination of the Pain Management Physician, Paul effectively highlighted the lack of medical records provided to Dr. Reyfman before he initiated his treatment plan; the similarities in his treatment of patients referred from Dr. Gerling; the gap in treatment by the plaintiff; and the issue of secondary gain. Based on the verdict, the jury obviously felt the Gerling-Reyfman team was less than credible. Here is an excerpt of the cross:

Q. When you did the first injection on your first exam, you had none of her records other than the lumbar MRI?
A. Correct.

Q. You don't think it's important to see records before you inject somebody?
A. She came in two months or two and a half months after the injury. She started physical therapy, which I have written in my notes that she had treatment consistent with medication and physical therapy. She described quite a bit of pain when she came in for the first time. And, even though I don't have written statements, if counsel wants me to write that she had no relief with physical therapy, if someone says that it's enough to make a conclusion that physical therapy was not effective and I don't need medical records such as physical therapy to form -- I need to examine the patient, look at the MRI and determine the best treatment plan.

Q. The MRI?
A. And films.

Q. And there were pain complaints?
A. Sorry.

Q. She complained of pain?
A. Yes.

Q. And what did she rate her pain in the lumbar spine when she saw you in February?
A. Four out of ten.

Q. Are you familiar with the term secondary gain?
A. Yes.

Q. What does that mean?
A. Trying to do something for financial gain.

Q. Like a lawsuit?
A. Lawsuit.

Q. And you would agree the pain rating is subjective?
A. Yes.

Q. Are you aware that May 15, 2015, that was right before we were going to begin a trial?
A. I only learned about the trial a week ago.

Read the transcript here.