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Can Defense Lawyer Ask MY MEDICAL EXPERT What WE Talked About When Cross Examining Him During a Medical Malpractice Trial in New York?

You sued your doctor.

For being careless.

For causing you significant harm.

For causing you permanent injury.

We're now at trial.

In your medical malpractice case.

Here in New York.

I question you first.

That's known as direct examination.

After I'm done, the defense attorney has a chance to question you too.

That's known as cross examination.

During cross examination, the defense lawyer asks whether you and I spoke before you took the witness stand.

You say "Sure."

Then, he asks "What did you and Mr. Oginski talk about before you took the witness stand?"

I immediately jump up and yell out “OBJECTION JUDGE! He can't ask what we discussed. Any conversation with my client is confidential!”

"Yes Mr. Oginski, you're correct," the judge says.

He says “Objection sustained.”

That means that the question is improper and should not be asked.

It means that you are not to answer the question.

You should know that conversations between an attorney and his client are confidential and privileged.

They cannot and will not be disclosed even during cross-examination at trial.

Another witness I need to call at trial is our medical expert.

He must explain what was done wrong.

He must tell the jury why and how that wrongdoing caused you injury.

He must also tell the jury how your injuries are significant and permanent.

My medical expert is very well credentialed. 

He's board certified.

He's been in practice for twenty years.

I ask him questions about his review of your medical records.

He explains to the jury in detail why your doctor violated the basic standards of medical care.

He tells the jury why and how your doctor's improper medical care caused your injuries.

He also explains how your injuries are significant and permanent.

He is a good witness.

After I finish questioning him, the defense attorney gets up to begin his cross-examination.

Five minutes into it, the defense lawyer asks my medical expert whether he and I spoke before he took the witness stand today.

“Yes, of course I did,” he answers.

The next question is predictable.

“Well, what did the two of you talk about?”

What do you think would happen if I were to stand up and yell out “OBJECTION JUDGE! My conversation with my expert is confidential!”

Do you think the judge would agree with me?

Do you think the judge would agree with the defense attorney?

Are conversations with my medical expert really confidential?

Here's what would likely happen...

In all likelihood, the judge would NOT agree with me.

If I were to stand up and yell out “OBJECTION JUDGE!" the judge would tell me that my conversations with my medical expert is NOT confidential.

You see, there is a distinct difference between an attorney's relationship with his client and an attorney's relationship with his medical expert.

The attorney-client relationship is a sacred one.

Any and all communications between attorney and client are confidential.

The defense attorney can jump up and down and scream all he wants about the fact that my client and I talked before she got on the witness stand to testify.

However, he cannot ask about the details of our conversations.

Nor can he insinuate what it is we may have talked about.

Nor can he use the fact that we talked to suggest what we talked about. 

You also need to know that EVERY ATTORNEY speaks to their client before they testify.

Not just to say "Hello, how are you today?" but to give them advice.

Every attorney prepares their client to testify.

Not to tell them what to say, but to explain what they can expect when they are questioned. 

Every attorney prepares their client for cross examination.

It's an obligation.

The best trial attorneys tell their clients to be honest and truthful when testifying.

We explain the need for the jury to learn and understand what they went through.

The jury was not there with you.

You need to bring the jury with you so that they 'see' in their own mind what you went through.

So the jury 'sees' what you deal with every single day.

We tell our clients not to get angry.

Not to smirk.

Not to joke around.

"If you don't know the answer, don't guess. Tell the attorney you don't know."

"If you need some water or a break, ask for it."

"Don't argue with the attorney during cross-examination. Just answer his questions as politely as you can."

The defense lawyer wants to insinuate that simply because you and I spoke that was improper.

He wants to leave the jury with the impression that simply because I prepared you for trial that I must have told you what to say.

The reality is that the defense lawyer cannot ask what you and I talked about.

Let's shift for a moment to my medical expert.

That's a different issue.

My medical expert is NOT my client.

He's someone I hired.

He's someone I contracted with.

This is someone I retained for the purposes of reviewing your medical records.

This is someone I retained for the purposes of evaluating your case.

To give me opinions and conclusions about what was done.

I'm paying my medical expert for his time away from his medical practice to evaluate your case.

This relationship is NOT the same as the attorney-client relationship.

Remember, the attorney-client relationship is confidential.

This contractual relationship with my medical expert is not.

That means my expert will have to spill the beans when asked.

He'll have to tell the defense lawyer what we spoke about.

And that's Ok.

Why?

Because there's a double edged sword awaiting the defense attorney if he asks that question.

The defense attorney is at a slight disadvantage when he asks my medical expert an open ended question.

"Dr. Expert, what did you and Mr. Oginski talk about?"

That question allows my expert to talk.

That question allows my expert to explain.

I love when that happens.

I WANT my expert to talk and explain as much as possible.

If the defense wants to open the door with that HUGE question, go right ahead!

You won't like the answer.

I promise you, you won't like the answer.

The reason is that during cross-examination, you never want to ask a question to which you do not know the answer.

The reason is that the witness will always hurt you and your case if given the opportunity. 

Because the defense attorney does not know exactly what my medical expert is going to say, he must proceed with caution.

He does not want to give the witness too much leeway to tell the jury everything that we discussed.

He must probe carefully.

If the defense attorney were to ask “Tell us what you and Mr. Oginski talked about,” that gives my expert free reign to talk.

My expert will explain why the doctor being sued was careless. He'll explain how that carelessness caused injury and how the injury is permanent. 

His explanation is simply going to reinforce our claim.

“I told Mr. Oginski that your doctor screwed up big-time. I told him how your doctor violated the basic standards of medical care. I told him in detail exactly where within the medical records this information was found. I then explained exactly how the patient suffered these terrible injuries as a direct result of your clients' improper and careless treatment."

"Mr. Oginski then asked me what should have been done in order to prevent these injuries from occurring."

"I told him that the following medical treatment would have been appropriate and would have avoided all of the injuries that this patient suffered at the hands of your careless client."

"What else did plaintiff's attorney talk to you about?" the defense lawyer asks.

"Mr. Oginski told me to be truthful and not to argue with you since you're a cranky old bastard."

This is the type of response you would expect a medical expert to give if he were asked to discuss what he and I talked about prior to him getting on the witness stand to testify.

Here are two takeaways from this article...

First, a medical expert who is hired by an attorney cannot hide behind an attorney-client privilege. 

You should know however that there are some very limited instances where a medical expert will not have to disclose certain information because it represents attorney-work product. That's a little exception that allows an expert to keep certain material confidential and not have to disclose it during pretrial testimony or during trial.

For the most part however, an expert will have to disclose those conversations that he had with the attorney.

Also, watch the fireworks start when a novice defense attorney blindly asks our expert "Doctor, what did you and Mr. Oginski talk about before you took the witness stand?" 

The attorney will regret ever asking that question.

To learn if a defense lawyer can ask his own medical expert leading questions at trial, I invite you watch the quick video below...