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Your Doctor Was Sued Before. Does That Mean He Did Something Wrong to Cause You Harm? And...If You Sue Him, Can You Use His Prior Lawsuits Against Him at Trial?

You love your doctor.

You trusted your doctor.

He was always good to you.

He always did the right thing by you.

Except this time.

This time you believe he screwed up.

This time you believe he was careless.

This time you think he violated the basic standards of medical care.

You decide to reach out to an attorney to see if you have a valid case.

For medical malpractice.

Your attorney is getting your medical records.

He's going to have one of his medical experts review and evaluate your records.

He's going to determine IF your doctor was careless.

He's going to determine IF his carelessness was A cause of YOUR injuries.

He also has to determine if your injuries are significant or permanent.

During your attorney's investigation, your lawyer tells you that your doctor has been sued before.

Many times.

That tells you he was careless before.

That also suggests to you he was careless with your treatment.

You believe that because other patients sued your doctor that your case is valid.

You believe you are fully justified suing your doctor.

Is that true?

Actually, no.

It's not.

One has nothing to do with the other.

Just because he was sued by another patient, doesn't mean what he did to you was improper.

You may believe there's a pattern here.

You may believe that where there's smoke, there's fire.

You may believe that simply because a patient sued him means he was careless.

That would be nice if true, but it's not.

The fact that someone sued your doctor does not mean (yet) that he's legally responsible for those injuries.

A medical malpractice lawsuit is a series of allegations against a doctor.

Typically, we allege negligence, also known as carelessness.

We allege medical malpractice.

That's really violations from the standards of good medical care.

We allege that your doctors' negligence was a cause of your injury.

Legally, we say that your doctors' negligence was a proximate cause of your injury.

You believe you will be able to use your doctors' history of being sued against him at trial.

You believe the jury should be allowed to learn about all the other patients who sued him.

That will give you greater ammunition to justify a verdict in your favor.

Well, let me set you straight.

You can't use that information at trial.

It's prejudicial.

If the jury hears it, they may get the idea that he is a 'bad' doctor.

They may get the sense that if all these other patients sued him, then of course, there must be some substance to those allegations. 

That may give them the sense that if he caused all those other patients harm, then there's a good likelihood he did the same in your case.

If you were to bring this issue up during cross-examination at your trial, the defense would have a fit!

The defense attorney would jump up out of his chair.

He'd object to the question!

The defense lawyer would likely ask for an immediate mistrial.

He will claim that since the jury has now heard that the doctor has been sued many times before clearly prejudices him.

At this point, you cannot un-ring the bell.

They heard it.

Even though the judge may give the jury a curative instruction to disregard the question, they already assume that the information in that question is accurate.

Imagine if the jury heard this...

“Doctor, isn't it true you've been sued 25 times before?”

“Doctor, isn't it true that 25 different patients sued you 25 different times?”

“Doctor, you have given testimony in 25 medical negligence cases in the past, correct?”

“In each of those cases, you were the doctor who was being sued, true?”

“Each of those cases were for medical malpractice, correct?”

“Each of those cases were either settled or went to a verdict, true?”

“Only one of those cases was dismissed before it ever went to trial, right?”

If the jury were to hear this series of questions, they would immediately understand that the doctor has been sued in 25 different malpractice cases.

Let me share with you why asking this series of questions can have a damaging effect on your trial.

Remember when I said before that patient who brings a lawsuit for claims against her doctor can only do so if she has a medical expert confirm that she has a valid basis for a case?

Only then are we permitted to file a lawsuit on her behalf.

You would think that would be sufficient to simply get the defense to roll over and agree to settle YOUR case.

The reality is just the opposite.

The doctors and hospitals fight these malpractice cases tooth and nail.

They often fight them to the bitter end.

If they do settle, it is often done immediately before trial or even at trial.

The mere fact that a patient has sued your doctor before, does not establish anything.

Only after a verdict has been reached and only after all appeals have been exhausted can a patient claim victory if she won at trial and on appeal.

Only then, can we say for sure that your doctor was careless in that particular instance causing her harm.

One of the ways we can use your doctor's prior testimony is to see if the testimony in your case was significantly different than similar questions he was asked in other lawsuits where he was sued.

Let me give you an example.

Let's say your doctor is a surgeon.

Let's say that he performed abdominal surgery on you that was done incorrectly.

During your lawsuit he was asked questions and gave answers during his pretrial question and answer session known as a deposition.

This pretrial testimony carries the same exact weight as if he were testifying at trial.

The big difference is that this is taking place in his lawyers' conference room.

There is no judge present.

There is no jury present.

There is only his lawyer, me and a court stenographer to record all of my questions and all of his answers.

Those questions and answers then get transcribed into a booklet called a transcript.

This transcript can be used in many different ways at trial.

Once I know a doctor has bee sued before that tells me he has testified before.

That tells me he's likely testified at pretrial depositions.

If any of those other cases have gone to trial, then there will be trial testimony.

I can then obtain those exact transcripts.

I do that by reaching out to the lawyers who sued your doctor.

Some will charge me a copying fee for the transcript.

Some will gladly provide it free of charge.

During a deposition, if the attorney questioning him knew what he was doing, your doctor will be required to explain what were the standards of medical care in that case.

That's a gold-mine of information.

Here's why...

During the discovery phase of your lawsuit, I have an opportunity to question your doctor. 

This is known as pretrial discovery.

I get to ask him questions about what he did and why.

I get to ask him what was the standard of care for your particular case.

I get to ask him if he considered any other possibilities for the problems you were experiencing.

I get to ask him what good medical practice required him to do.

Those types of questions will lock the doctor into his testimony in YOUR case.

Once I have his sworn testimony, I can then do my research to see what he has said in response to similar questions in other lawsuits.

If the answers to those questions are inconsistent, now that give me useful ammunition to use when I cross examine him at trial.

However, the mere fact that your doctor has been sued many times in the past is not evidence that he did something wrong in your case.

Let me give you another example.

Let's say you're driving down the highway and get pulled over for speeding.

The police officer tells you that your driving history shows you were speeding five times in the past year.

Therefore he argues, you must have been speeding now.

That's why he pulled you over.

That's his only justification for pulling you over now.

But you know, in your heart of hearts, that you were not speeding.

In fact, you were under the speed limit.

However, this police officer wants to write you a ticket merely because of your history of having been a speeder in the past.

You know if this were to occur, that would be extremely unfair.

You don't deserve this ticket.

You might have deserved the other five speeding tickets, but not this one.

The same analogy is true for your doctor who was sued in the past.

The mere fact that other patients sued him does not indicate that he violated the basic standards of medical care treating you.

That may not be what you expected.

That may be frustrating to you.

That may cause you to believe our system of justice is unfair.

However, keep in mind that your doctors' past lawsuit history has an impact on his insurance company and also our assessment of your case.

We can however use this information during settlement negotiations.

You see, this information is relevant if your case goes to trial.

What type of witness will he be at trial?

Is he a warm and fuzzy guy who relates well to a jury?

Is he a jerk and comes off abrasive?

The defense lawyer must evaluate this.

The doctors' own insurance company must evaluate this.

I also evaluate this.

When I obtain transcripts of prior testimony from other lawyers, I will ask them specifically what type of witness this guy was.

Will a jury like him?

To answer the question I raised in the headline of this article, if your doctor was sued in the past, can I use that fact to show he was careless in YOUR case? The answer is no, I can't.

To learn if I can ask at trial "Doctor, Isn't it True You've Been Sued 10 Times Before?" I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer