Defense Doctors: Medicine or Rhetoric?

I know it seems like I have an unhealthy fixation. But it happens all the time and is just so corrupt.

Defense doctors look very serious and explain that the plaintiff reported that their head did not hit the windshield.

Defense doctors highlight the fact that the plaintiff did not lose consciousness when is not necessary to lose consciousness to suffer a concussion.

Or they trumpet the fact that the plaintiff had a normal CT scan when it is not expected a CT scan will show any injury when someone suffers a concussion.

They lean in on all these things that don’t align with the diagnostic criteria for concussion.

Basically the defense doctors are utilizing a rhetorical technique called “argument by irrelevant absence.”

Something is treated as if it were a necessary for a concussion diagnosis when medically it is not. This works by exploiting lay intuition like:

Brain Injury = Violent Impact to the Head

Brain Injury = Unconsciousness

Brain Injury = Bleeding Visible on CT

The defense doctor is tricky because this isn’t said explicitly. Instead it’s implied.

And even though the missing premise (“concussion requires these findings”) is false, the jury is encouraged to supply it anyway.

Defense doctors repeatedly emphasize what is rhetorically vivid instead of what’s clinically relevant.

Out of their mouths spill phrases like:

“No loss of consciousness”

“Normal CT”

“No objective findings”

All of these sound precise and very “medical.” But they’re not required diagnostic criteria for concussion. The jury believes it’s hearing a medical conclusion when it’s really hearing a list of screening factors for other types of injuries or conditions.

And it’s not like the defense doctor is “wrong.” In many cases there is no loss of consciousness. There isn’t a violent blow to the head. The CT was negative.

But the really sneaky and poisonous part of this is that the defense doctor is responding to the wrong question with what in isolation are true statements.

By emphasizing what didn’t happen, the defense doctor implicitly suggests:

• The plaintiff’s experience is less legitimate

• The injury is less serious

• The claim is less credible

This is a powerful tool particularly in brain injury cases where symptoms are subjective and delayed (either in terms of onset or perception).