In a medical malpractice lawsuit in New York, we are required to show to the jury that we are more likely right than wrong that the injuries you received were a result of improper medical care. Legally, that is known as the “burden of proof.”
In technical terms that is also known as a “preponderance of evidence.”
There is a key strategy about why we call to the witness stand the doctor you are suing as our first witness.
Some people might think it would be easier for jury to understand what happened if the injured victim went up first and told his or her story about what happened. This can work, but is not as effective as when the doctor takes the witness stand.
When I call a doctor to the witness stand, my goal is to have him explain to the jury exactly what problem you have, what problems you presented with, what examinations and tests he performed and what his plan of action was for the future.
This gives the jury a concise, clear understanding of what happened from the physician's perspective. Later on, I will certainly put the injured victim on the witness stand to fill in the blanks and to give full color images of what exactly happened from their perspective.
However, by putting your treating doctor on the witness stand first, I can then have him introduce his own medical records into evidence and then any other medical expert who gets up to testify will now be basing their decisions upon records that are already in evidence along with the testimony of the original treating doctor.
Also, by calling the doctor you are suing, I have the ability to show to the jury that there are certain established guidelines that the doctor is required to follow when treating and evaluating your particular problem.
I am permitted to ask the doctor medical opinion questions and have him establish what those guidelines were at that time. I am then permitted to ask him questions about whether he deviated or departed from those good and accepted medical practices.