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Why do we call the doctor you are suing as the first witness in a medical malpractice trial here in New York?

 

A:

You would think it would make logical sense to call witnesses in a chronological order.

Most injured victims believe is best for them to be the first witness so they can tell the jury everything that happened and why.

What they don't realize is that from a strategic standpoint, that is not always the best way to structure which witnesses to put on at trial and when.

In fact, that tends not to work very well. Many injured victims are not very articulate and do not have great memories. That makes it difficult for the jury to follow along to determine what actually happened and what the claims are in the case.

The better practice iin a medical malpractice case here in New York is to put the doctor you are suing on the witness stand as the very first witness.

This allows me to do a number of things.

In a medical malpractice case I must establish that there were certain standards and guidelines that must be followed by a physician who is treating you. By questioning the doctor you have sued as the first witness, I can use him to establish those basic guidelines and standards.

I can then use this doctor to go through your records to show to the jury exactly what problems and complaints you had, what examinations he performed, what discussions he had with you and what his course of treatment and plan of action was at any given time.

Then I can use the doctor's own records to establish what occurred and whether there were departures from good and accepted medical care. In addition, once I have the doctor's testimony I can then bring in my own experts who can then testify based upon the original doctor's testimony. 

If we were to put on the doctor who you are suing as the last witness, our experts would not be able to testify about their opinions since their opinions would not be based upon testimony that was already admitted into evidence. In other words, our experts must be able to testify based upon testimony that is already in evidence. Otherwise, the jury will not be able to consider their testimony and the judge would likely not allow an expert to testify unless there was a foundation for that testimony.