This is real drama.
Better than any reality TV show.
When an attorney cross-examines a doctor during a medical malpractice trial and exposes a lie, everyone in the courtroom knows it.
You can feel the tension in the air.
Everyone in the courtroom knows what just happened.
The doctor was exposed.
He told a lie.
He shaded the truth.
He was being less than honest.
I'm not talking about a little white lie either.
I'm talking about a whopper.
Let's say this is a medical malpractice trial.
You decide to sue your doctor.
You believe he was careless and caused you significant harm.
You believe he violated the basic standards of medical care.
As a result, you suffered horrible injuries.
Your doctor says your injuries are permanent and disabling.
However, the defense didn't throw their hands up and yell “Okay, you got us, how much do you want?”
Instead, they were upset.
Upset because you sued them.
Upset because they claim they did nothing wrong.
They also claim that even if they did something wrong, so did you.
To make matters worse, they argue that even if your doctor did something wrong, his wrongdoing was not a cause of your injury.
To take it one step further and to dig the knife in a little deeper, they claim that even if they did something wrong and caused you harm, her injuries are not really as bad as you claim them to be.
They refuse to negotiate.
They claim they have medical experts to who say they did nothing wrong.
Likewise, you have medical experts to support your claim that your doctor was careless causing you injury.
During the course of your lawsuit I have an opportunity to question your doctor.
This question and answer session takes place in the defense lawyer's office.
In his conference room.
There is no judge present.
There is no jury present.
Instead, there is a court stenographer in the room.
I am there.
The defense lawyer is there.
Your doctor is there.
That's it.
It is my opportunity to ask your doctor questions about what he did and why he did it.
It's my chance to ask him hypothetical questions.
It's my chance to ask him what the standards of care were for treating you and your particular problem.
This question and answer session is known legally as a deposition.
Lawyers refer to it as an 'examination before trial'.
This is really pretrial testimony.
It's sworn testimony, given under oath.
The court stenographer is there to record all of my questions and all of the doctor's answers.
After this questioning is finished, the court reporter transcribes all the questions and all the answers into a booklet known as a transcript.
When your case eventually comes up for trial, we use this pretrial testimony in many different ways.
We can read portions of it to the jury.
We can use it to show a witness is inconsistent.
For example, if your doctor testifies at trial that he specifically told you to have x-rays done, but his testimony from a year earlier during his deposition clearly shows that he did not send you for x-rays, we can use that pretrial testimony to highlight this obvious contradiction.
We can use a transcript to refresh a witness' memory about what they said years earlier.
It's important to remember that when your case goes to trial, credibility of the witnesses who testify make a huge difference in the outcome of your case.
Throughout the course of your trial the jury will constantly be evaluating whether the witnesses are believable.
There are competing experts who will testify.
The jury must decide which of those experts are more believable.
There will be other witnesses who testify.
Again, the jury must decide for themselves which of these witnesses are more believable.
The bottom line is that credibility is everything at trial.
If the jury does not believe you, it will be very challenging to convince them that you are entitled to a verdict in your favor.
On the other hand, if the jury does not believe your doctor whom you have sued, then there is a good possibility you will achieve a favorable verdict.
At the end of your trial, after closing arguments are made by the attorneys, the judge spends a considerable amount of time explaining the law to the jury.
He gives them specific legal instructions.
He explains what the legal definitions are of negligence and medical malpractice.
There is also a little legal instruction the judge gives the jury that can make or break your case.
It has to do with credibility.
It has to do with believability.
More importantly, it has to do with liars.
We all know from our experiences that someone who lies loses our trust.
If someone has lied to us, that person can no longer be trusted.
That's just human nature.
If they were to come to us again telling us a story after having lied to us once before, it's highly unlikely we would believe them.
Why not?
It's because our human nature makes us skeptical once somebody has already destroyed their trust with us.
This little legal instruction that the judge gives the jury at the end of the trial has a fancy Latin term called "Falsus in Uno."
This instruction says that if you believe a witness has testified falsely about one thing, you can disregard some or all of his testimony.
This instruction is powerful.
It gives the jury the ability to disregard what a witness said.
It also gives the jury the opportunity to decide for themselves whether one piece of his testimony was false or whether all of it should be discarded because of his lies.
There are times when a doctor who is being sued may lie.
Maybe it's a small lie.
Maybe it's a huge lie.
Maybe it's a little white lie.
Maybe it's an inconsistency that doesn't have any significance.
Maybe this lie has nothing to do with the claims being made in this case and are unrelated to any of the problems you have presented to the jury.
As an example, let's say a doctor lied about something on his tax returns.
Does that have anything to do with whether he violated the basic standards of medical care?
If a doctor lied on his tax returns does that have anything to do with whether his wrongdoing caused your injury?
Let's say your doctor had an affair and lied to his wife and family about it.
Does that have anything to do with whether his actions or inactions caused your injuries?
That's what a jury has to evaluate.
Let me share with you a story of a woman I represented in Brooklyn.
It was an orthopedic malpractice case.
We claimed the orthopedist failed to diagnose my clients' fracture causing her to need open reduction internal fixation surgery two months after she fractured her arm.
During the lawsuit I questioned him.
This was his pretrial deposition.
I learned that this doctor took five years to complete medical school instead of the normal four.
That raised a red flag.
That shouldn't happen.
Maybe he was doing some research that extended his medical school years.
Not.
Not in this case.
Turns out this doctor failed three of his classes.
He had to repeat the entire year of classes.
That's significant.
That may show that he has a knowledge deficiency.
When I asked him which three classes he failed, he claimed he couldn't remember.
I asked him ten different ways.
He testified he just didn't remember which classes they were.
That was total bull.
Anyone who has to repeat an entire year of medical school classes and pay another year of private medical school tuition knows exactly which classes he failed.
He just didn't want to tell me.
He didn't want me to know.
He was lying and I knew it.
The defense lawyer knew it too.
Fast forward one year.
We're at trial.
In Kings County Supreme Court.
The defense refused to settle or negotiate.
I had the orthopedist on the witness stand.
I was cross examining him.
I let the jury know that it took him five years to graduate medical school.
Normal time is four years.
The jury looked confused.
I hadn't yet shared with them why he needed an extra year to graduate.
I tried to get the doctor's medical school transcript.
I tried to subpoena it.
The defense lawyer opposed my request.
The judge agreed it wasn't relevant to the issues in the case.
I could still probe.
I could still let the jury in on his hidden secret.
That should affect his credibility.
That should affect the jury's perception of his knowledge.
I exposed the fact that this doctor failed three classes in medical school.
I exposed the fact that he had to retake an entire year of school because of that.
Then I asked the doctor which three classes he failed.
He again claimed he couldn't remember.
I didn't believe him.
I asked him again and again.
He stuck to his guns and claimed he just didn't remember.
He said it was more than twenty years ago.
He was licensed to practice medicine in New York.
He was also board certified in orthopedics.
Board certification is the highest certification a physician can achieve in a particular medical specialty.
In this case, the jury didn't care about this doctor's obvious lie.
They thought it was unrelated to my client's case and she lost.
This lie wasn't big enough or related to the specific claims we had made in her case.
Watch this quick video to give you an overview of the doctor's testimony in that case, then keep reading below...
On the other hand, let's say the doctor testified about what the standard of care was.
Let's also assume that every expert who testified totally disagreed with what the standards of care were.
For this example, let's say it's so obvious that even the doctor's own medical expert agrees that what your doctor said concerning the standard of care was absolutely untrue.
Is that lie going to get the doctor's license to practice medicine revoked?
Is that lie going to get the doctor's license to practice medicine suspended?
In all likelihood the answer is no and no.
You should know is that if the jury determines that your doctor is legally responsible for causing your injuries, then their only function is to determine how much money you will receive as compensation for all of your damages.
This jury has nothing to do with deciding whether or not your doctor continues to practice medicine.
This jury has nothing to do with deciding whether your doctor's license to practice will be suspended.
Nor does the jury have anything to do with whether your doctor's license to practice medicine will be revoked.
Those functions fall to the New York State Department of Health.
The Department of Health is responsible for making sure that patient safety is paramount.
Their job is to make sure that a doctor is competent and qualified to treat patients properly.
They do not get involved in judgment calls where one physician's course of treatment may be different than another's.
The Department of Health does not get involved typically when a jury decides that a doctor is legally responsible for your injuries.
Let me give you an extreme example where they would get involved.
Many years ago there was a surgeon who was performed a gynecologic procedure on a woman. During surgery, the doctor carved his initials inside this woman's abdomen.
There was no medical reason to do this.
There was no rational reason to do this.
When this information came to light and this matter became public, the Department of Health sprang into action and suspended the doctor's license to practice medicine.
They claimed he was an imminent danger to patients.
After a full investigation and a hearing, the Department of Health determined that this doctor was unfit to practice medicine and was an inherent danger to patients in New York.
What did they do?
They revoked his license to practice medicine.
Let me share with you another story involving a patient I represented years ago who brought a lawsuit against her plastic surgeon.
This plastic surgeon performed eyelid surgery on my client.
He botched her procedure.
Big time.
She was left disfigured.
She was unable to close her eyelids.
He removed too much muscle from her eyelids.
That caused her to have dry eyes.
That also caused her to have difficulty sleeping at night, irritation to her eyes, and inability to close her eyes fully to prevent dust and dirt from entering.
During the course of her lawsuit, I learned that this doctor had many lawsuits pending against him.
Not just a handful but many.
During the course of this case I was able to point out numerous inconsistencies in this doctor's testimony.
The doctor refused to settle.
He refused to acknowledge that he did anything wrong.
I had a good plastic surgery expert.
He kept telling me that this guy had no defense whatsoever.
He kept telling me that there was no way he could defend this case at trial.
His treatment and his actions were so off the wall and inappropriate that no jury anywhere would ever believe him.
As this case was approaching trial, I received information that the New York State Department of Health had revoked this doctor's license to practice medicine.
I obtained the order from the New York State Department of Health.
The order said this plastic surgeon was a danger to the public.
They felt he was not qualified to practice medicine.
They immediately revoked his license.
The Department of Health found this doctor was unqualified to treat patients, did not know what the appropriate standards of care were and also lied about his treatment and his actions.
To learn how obnoxious this plastic surgeon was during the course of this lawsuit and why my client had the last laugh, I invite you to watch the quick video below and then continue reading below...
Often when an injured patient calls about a possible malpractice case, they think this type of lawsuit will revoke the doctor's license to practice medicine.
In fact, that's all they want done.
They don't want the doctor to hurt anybody else.
They don't want their doctor to put another patient through what they went through.
Their real focus is on preventing this from happening again.
They think that by bringing a lawsuit it will prevent their doctor from practicing medicine anymore.
The reality is that a medical malpractice lawsuit is a civil remedy.
It's a way for an injured patient to obtain money.
Money is the only compensation possible for your injuries.
Your doctor can't make you whole again.
Our system of justice holds a doctor accountable for his actions.
These civil lawsuits do not stop your doctor from practicing medicine.
That's why many patients often file a complaint with the New York State Department of Health, separate and apart from proceeding forward with a lawsuit.
Once they file a complaint with the Department of Health, the department is obligated to investigate.
The Department of Health has different guidelines that they follow to evaluate whether treatment was appropriate.
If treatment was not appropriate, there are different options available to them to punish the doctor for what he did.
By filing a complaint with the Department of Health, the remedy has nothing to do with compensating you.
Instead, it focuses on patient safety.
One remedy may be to retrain the doctor.
Another remedy may be to require the doctor have constant supervision by a senior attending physician at the hospital.
Another remedy might be that they suspend the doctor's license for a period of time provided he gets some remedial help.
An extreme measure would be to revoke the doctor's license to practice medicine.
Getting back to the title of this article about whether your doctor will lose his license to practice medicine if he lies at trial, the answer is no.
Unless that lie is directly related to patient's safety and how it may affect them immediately, his lie will only go to his credibility.
The jury will then evaluate that lie as they determine whether you are more likely right than wrong that what you're claiming is true.
