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Trial tactics: Can you use hypothetical questions when questioning a medical expert or the defendant doctor in a medical malpractice case at trial in New York?

A hypothetical question asks a witness to assume certain facts as being true.

There is a key strategic reason for being able to ask a medical expert hypothetical questions during a deposition, which is pretrial testimony given under oath as well as at trial.

The medical expert I'm cross-examining will likely not agree with the specific set of facts that we are presenting to the jury. Naturally, he has his own agenda and is trying to show that our claim has no merit.

However, in New York we are permitted to ask the medical expert questions that include hypotheticals.

“Doctor, I want you to assume the following facts to be true... In that instance, would you agree that if the doctor failed to take action that would be a violation of the standard of care?”

The doctor has to either agree, disagree or claim he does not know the answer. If he begins to argue with me over the facts of the hypothetical, he will look silly in front of the jury. I will then ask the question slightly differently but again with the same set of facts in a hypothetical question. If the doctor continues to argue with me over the specific facts that we are asking them to assume as being true, he will look like he's being argumentative since he does not want to answer the question based upon our set of facts.

This exact scenario happened to me in recent question-and-answer session known as a deposition, which is pretrial testimony.

I asked the doctor who was being sued to assume the following facts as being true.

“Doctor, assuming the following facts are true would you agree that what this doctor did violated the standard of care?”

Over the next 15 minutes, the doctor refused to accept our set of facts that I presented. He refused to answer my question.

Finally, his attorney became as frustrated as I was and yelled at his own client to simply answer my question. Naturally, the doctor testified that he did not agree with this set of facts and did not agree that it would be a violation of the standard of care.

The reason why we ask a hypothetical question and why it is so important is that if the jury determines that our set of facts are more likely right than wrong, now we have obtained damaging testimony from the person who is being sued or the defense expert, and that damaging testimony will now support our claim.

This is a critical trial strategy that is used not just on our side, but the defense as well.

The defense has the same opportunity to ask our experts hypothetical questions and to assume that if their facts are true then the standard of care would not have been violated.

Ultimately, the jury is the one to determine which set of facts are true and which ones are not. Based upon their decision they can then look to the supporting testimony to see who's right and who's wrong.

To learn about a huge mistake I made when cross examining a defense doctor early in my career, in invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer