Go to navigation Go to content

When cross-examining a doctor at trial, what happens if you mistakenly ask the doctor “why?”

 

A:

You might think that's not such a big deal. You might think it's natural. You might think that it's as if you're having a great conversation with the doctor when questioning him during his medical malpractice trial.

That line of thinking is fatally flawed, and let me tell you why.

In a medical malpractice lawsuit in New York, the doctor who is being sued will likely be the first witness at trial. I have an opportunity to question him in order to establish a number of things. I must establish not only what the basic standards of care are, but I need to establish what treatment he rendered to my client and to try and get him to admit that he departed from good and accepted medical care.

Since he is technically an adverse witness, I am permitted to question him as if he is a hostile witness. That means I can ask him leading questions. That means I do not have to ask him open-ended questions.

If you watch a medical malpractice trial, you will notice that most really good experienced trial attorneys who are cross-examining a doctor will always ask short, powerful leading questions. The reason this is done is to control the witness and to ensure that the witness simply agrees or disagrees with certain statements that the attorney is making.

If the attorney makes the mistake of asking an open-ended question such as 'why' or 'how' or 'explain', he has now opened the door and should expect that the doctor will give an answer that is totally damaging to his client's case.

The goal of cross examination is to control the witness and keep that witness's answers to either yes or no or true or false. 

If you give the doctor an opportunity to explain, he will take that opportunity and run with it.

The doctor's lawyer will have an opportunity to ask the doctor all those open-ended questions that will give him every opportunity to explain. However, as the attorney for the injured victim, you never want to give the doctor that opportunity. Instead, you simply want him to either agree or disagree with the statements you are making.