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Defense lawyer calls me and says "Hey Oginski, I want to question your medical expert at a pretrial deposition." What do you think my response will be?

It's a medical malpractice case.

Here in New York.

You are suing your doctor.

You believe your doctor was careless.

You believe your doctor violated the basic standards of medical care.

As a result of his carelessness, you suffered horrible injury.

Permanent injury.

You are now trying to get compensated for all of your harms and injuries because your doctor departured from good medical care while treating you.

During the course of your lawsuit the defense will have an opportunity to ask you questions.

Likewise, I will have an opportunity to ask the doctor you have sued questions about what he did and why.

This process is known as a question and answer session that is done under oath. Legally, we say that is giving a deposition. Attorneys also tend to use the phrase 'examination before trial'.

There are some people who believe that in addition to the person who is suing the doctor and the doctor who is being sued, that any medical experts will also be questioned during this pretrial process.

You should know that here in New York, in State Court, medical experts in medical malpractice cases are are RARELY questioned before trial.

Typically, the ONLY time we get to question a medical expert is at the time of trial.

We do not have access to the other side's medical expert prior to trial.

Likewise, the defense does not have access to our medical expert before trial testimony.

There are some states that do allow pretrial depositions of medical experts.

In that instance, when attorneys go to question a medical expert, it is EXACTLY the same as if the medical expert is testifying at trial. His attorney will question him using direct examination techniques. That means he will want his expert to explain at every opportunity this thoughts and opinions.

On the other hand, if I have a chance to question the defense's medical expert prior to trial, I will be cross-examining him to truly test his opinions and conclusions.

I said earlier that in NY State courts, rarely do we get a chance to question medical experts during the pretrial discovery process. It's just not done.

However, there are certain instances where are able to question a medical expert.

Here's one example...

Let's say the defense's medical expert knows a few months in advance that he will not be available to testify at trial. Rather than finding and hiring another medical expert, the defense decides they'd rather have their expert questioned before trial and have his question and answer session videotaped.

This way, they can show this video to the jury, as if he was in court testifying.

Before the defense attorneys are allowed to do this, they must go through a procedure to explain and justify why their expert will be unavailable. Then, they must advise us when the doctor will be available to be questioned.

In addition, the attorney must inform us who the videographer will be as well as who the court stenographer will be.

On the scheduled day of questioning, we all show up in the defense lawyer's office.

The doctor is there.

The court reporter is there.

The video guy is there.

The defense attorney is there.

And I am there.

The doctor will be sworn in by the court stenographer.

The video guy will start his video camera.

The defense attorney will then begin questioning the doctor as if he was at trial.

If there are questions that are improper, I will make an objection on the record.

Since there is no judge present to rule on my objection, we will simply note the objection and allow the doctor to answer the question.

Later at trial, if the defense attorney insists on having the jury listen to this particular question and answer, we must first get a ruling from the judge on whether this question was proper. If not, the jury will not hear the question or answer. The video guy will then advance the video to the next question.

After the defense attorney has finished his direct examination questioning his medical expert, we will likely take a short break.

Then, I will begin questioning the doctor by asking leading questions.

I can treat this doctor as a 'hostile' or unfriendly witness as I cross examine him.

The mere fact that this question and answer session is happening in the defense lawyer's office does not mean anything. The testimony this doctor is giving has the same effect and weight as if he were in court testifying at trial.

While I am asking the defense's medical epxert questions, the defense attorney can also object to my questions.

The doctor must answer my questions and the attorney has now preserved his objection for the time of trial.

You should also know that after this deposition is finished, the defense MUST provide me with a copy of the video taken that day as well as a copy of all the questions asked and answers given. This is done by providing me with a courtesy copy in the form of a transcript.

The transcript is often sent both via email and in the form of a printed booklet.

To answer the question I raised in the headline...what do I say to the defense lawyer when he calls me to say that he wants to question my medical expert during a pretrial depositon, I say "The civil practice laws and rules of the State of NY do NOT allow you to do that. Instead, you will only be able to question him at trial."

As a side note, you should also know that as we get close to trial, each side has an obligation to notify the other side if they have retained medical experts who will be coming into court to testify. Then, we must give a detailed explanation about what our experts will be talking about.

We are also required to disclose our experts' credentials and where they went to school.

Do we need to disclose the names of our experts?

No we don't.

However, there's a pretty easy way to ascertain who these medical experts are using their credentials. By entering their credentials into a computer database, we can often, with good success, identify who the medical expert is for the other side.

Once we identify who will be testifying, then the next step is to gather as much dirt and information about that person to use during cross examination.

To learn more about whether an attorney can demand to question our medical expert during the pretrial litigation process, I invite you to watch the video below...