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Trial Strategy: Can YOU Cross-Examine the Doctor Who Injured You and Caused You Harm?

The answer is you could. But you shouldn't. Here's why...

You trusted your doctor. You loved your doctor. He always did the right thing by you.
Except this time. This time was different. You went into the hospital just fine. You were going to have an elective procedure. You came out of the hospital with horrible injuries weeks later.

It was supposed to be a 'routine' procedure. Sure it was. Your doctor told you these complications were risks of the procedure. You believed him. You believed him until you started seeing other doctors to fix you up. Those other doctors didn't sugar coat it.

"You're messed up. I don't know if I can fix you," they'd say.
"You might want to speak to an attorney. I would if I were you," they hinted.
You finally got the suggestion that your doctor screwed up causing you these terrible injuries.

You find an attorney to investigate and he has your medical records reviewed by a board-certified expert in the same specialty as your doctor. A few weeks later your attorney lets you know that his medical expert confirms that your doctor violated the basic standards of medical care causing you harm. You agree to bring a lawsuit seeking money as a form of compensation for all the losses and injuries you suffered.

Your doctor laughs at your lawsuit.
"I did nothing wrong. Take me to trial. I dare you!" he says.
You are furious that your doctor won't take responsibility for his actions. He won't even acknowledge he did anything wrong. Then, he even taunted you.

You vow to show him. You vow to win your case. You know a jury will side in your favor based upon what he did to you.

As your case approaches trial, you tell your attorney your plan.
You've been waiting almost three years now to do this.
You've been harboring the sweetest revenge possible against your doctor and want to do everything you can to wipe that smug smile off his face during trial.

With only weeks before trial, you tell your attorney of your intentions.
"When it comes time to cross examine the doctor who caused me injury, I want to cross examine him," you tell your lawyer.

Your lawyer looks at you in astonishment.
He looks at you like you're an alien.
"Are you a trial attorney?" he asks you.

"No," you respond.
"Have you ever cross examined anyone at trial?" he asks incredulously.
"No," you again respond.

"Do you know the law in the New York regarding various objections that attorneys can raise during trial?" your lawyer asks.
"No," you say.
"Do you have the same amount of medical knowledge as the doctor in this case?" your lawyer inquires.
"No," you repeat.

"How then can you effectively cross examine this experienced and well-qualified doctor if you don't have that experience and that knowledge?" your lawyer asks earnestly.

"Simple," you say. "I know my case better than anyone, even you! I know what he did. I know what he did wrong. I want to confront him. I want him to EXPLAIN TO ME why he did what he did. I want him to look me in the eye and tell me he was wrong!" you say.

"Ahh. Now I get it. You want revenge. You want to humiliate him. You want to get him to beg for forgiveness. You want him to admit, while on the witness stand, in front of the jury, that he was wrong and his wrongdoing caused you injury, right?" 

"Absolutely damn right!" you exclaim.

"Well, sorry to burst your bubble, but none of that will happen if you cross examine this doctor. In fact, the jury will see what you're trying to do and become overly sympathetic for the doctor. They'll look at you as a pathetic wannabe victim who is trying to force the doctor to say something that's not true. That's not going to happen," he says to you firmly.

Here's why...

The purpose of cross examination is NOT to exact revenge.
The purpose of cross examination is NOT to humiliate the witness, although that can be a byproduct of an effective cross examination.
The purpose of cross examination is NOT to generate sympathy for the witness you have sued.

Instead, the purpose of cross examination is to show the witness is lying.
The purpose of cross examination is to show the witness is NOT credible.
We don't want the witness explaining ANYTHING during cross examination.

The time to ask your doctor why he did what he did is NOT during cross examination.
Instead, the better time to ask those questions is during the pretrial discovery process in a question and answer session known as a deposition. Lawyers also refer to this as an examination before trial. That's the right time to ask those questions.

At a deposition, there's no jury present. There's no judge present. Only his attorney, a court stenographer and me. That's it. 
My questions and his answers form the basis of his pretrial testimony. Those questions and answers get transcribed and put into a booklet. Those answers can be used against the doctor at the time of trial.

"By the way, your doctor will NEVER willingly admit that he screwed up. He will never voluntarily admit that he departed from good medical care when treating you. He will never acknowledge that his treatment caused you harm. Nor will he recognize that your injuries are as bad as you claim," your attorney tells you.

"However, there are cross examination strategies, that if used correctly, will get the doctor to admit he screwed up. That involves using hypothetical questions. That involves asking him to assume certain facts to be true," your lawyer continues explaining.

The best time to use these hypothetical questions is during the pretrial deposition process. If done correctly, an attorney can prove your case before you even get to trial.

"Doctor I want you to assume that Mrs. Jones came to you on January 5 complaining of the following things...
Would you agree that good medical practice requires you to take a detailed, thorough history?"
"Yes," he answers.

"Would you agree that good medical practice requires that you perform a detailed, thorough physical examination?"
"Yes," he again answers.

"Would you agree that if you failed to take a detailed, thorough history, that would be a violation from the standard of care, right?"
"Yes," he admits.

"You'd agree that failing to perform a detailed, thorough history would also be a violation from the standard of care, correct?"
"Yes," he again admits.

These types of hypothetical questions force the doctor to admit the obvious.
Then, we start using facts that we believe to be true. Facts that are supported by the evidence and testimony in your case.
Your doctor doesn't have to agree with them, but in the hypothetical question, he does.

"Doctor, I want you to assume that Mrs. Jones complained of a painful breast lump in her right breast on January 5. Assuming those facts to be true, would you agree that good medical practice requires you to palpate the breast?"
"Yes," he answers.

"Would you agree that good medical practice requires you to examine both breasts with the patient sitting up?"
"Yes."

"Woud you agree that good medical practice requires you to examine both breasts with the patient lying down?"
"Yes."

"You'd agree that failing to physically examine the patient's breasts in light of her complaint of a breast lump would be a clear departure from good medical practice, correct?"
"Yes."

Don't get me wrong. The doctor will fight me tooth and nail on the wording of most of these questions. He'll do his best to offer up excuses about why he can't answer my question the way I've phrased it. Then, he will dispute the set of facts I've asked him to assume are true. Eventually, he will likely and begrudgingly admit that if those facts are true and he did not do those things I've described in the question, then it would be a violation from the standard of care.

I can then use that information at trial to show to the jury that the doctor actually AGREES with our theory IF our set of facts are true. The jury ultimately decides which witnesses they believe, who is credible and who is not. If the jury determines that our facts are true, I've now gotten the doctor to admit and acknowledge that yes, he screwed up.

I've then gotten him to acknowledge that if our facts are true, then yes, his wrongdoing caused you injury.
This is the most challenging part of a medical malpractice case. It's easier said than done. It's often hard fought and very contentious.

"Doctor, I want you to assume that the patient says you did not examine her breasts on that first visit, January 5. If true, can we agree that failing to examine her breasts on that day, in light of her complaint of a breast lump, would be a clear violation from the standard of care?"
He has to say 'yes'.

"Would you agree that a patient who complains of a breast lump requires a breast sonogram?"
"Yes."
"Would you agree that a patient who complains of a breast lump needs a mammogram?"
"Yes."
"Would you agree that a woman who complains of a breast lump on her first visit needs a referral to a breast surgeon to fully evaluate her complaint?"
"Yes."

"Would you agree that a physician who fails to refer a patient for a breast sonogram, a mammogram and a breast surgeon evaluation, would be a departure from good medical care?"
"Yes," he admits reluctantly.

"Now, I want you to assume that on that first visit you did NOT refer the patient for a breast sonogram. Would you agree that would be a departure from good care, again, assuming these facts to be true?"
"Yes."

"I want you to assume that on that first visit, you did NOT refer the patient for a mammogram. Would you agree that would be a departure from good care, again, assuming these facts to be true?"
"Yes."

"You'd agree that early detection and treatment is important when evaluating possible breast cancer, correct?
"Yes."
"The reason is that the earlier the cancer is detected and treated, the better prognosis for the patient, correct?"
"Yes."

Do you see how important asking hypothetical questions are in a medical malpractice case?

If you know how to do this effectively, then you might just be able to handle the cross examination of the doctor you sued.
But then again, you shouldn't.
You're too emotionally involved.

You must have a thorough knowledge of the law and the various objections that are sure to come your way as you attempt to cross examine this physician who destroyed you. You must be able to explain to the judge intelligently why you are legally justified to ask certain questions. You must also be able to think on your feet and alter the wording of your questions when you are told the question is inappropriate.

When the defense lawyer objects to the form of your question, you can't ask the judge "What's wrong with my question?"

He's not there to tell you. The judge isn't there to help you along in your cross examination. Instead, you have to ask a differently worded question to overcome the objection.

When you get repeated objections, you are sure to get frustrated. 
The frustration will show on your face. It'll show in your body language. The jury will see it. At first, they'll feel bad for you. Then when the frustration continues, that empathy they had for you will turn into wondering what you're doing. Then, they'll realize you have no business being up there trying to cross-examine this well-regarded doctor.

Instead, you'll come across as vindictive and petty. That won't make you look good. In fact, it will have the opposite effect. It will make the doctor sympathetic to the jury. They'll get the sense that you're just out for revenge and are willing to do anything, including bringing a lawsuit, to get back at him.

That's why I say that you could learn how to do this, given time and a good education on the law. But then again, you shouldn't. Instead, let your experienced trial attorney handle this critical phase of your trial for you. 

To learn about the best cross examination I ever did, I invite you to watch the quick video below...