Here in New York.
You believe your doctor violated the basic standards of medical care. You believe that your doctor did not treat you appropriately, causing you significant injury and harm.
You decide to sue your doctor claiming that he violated the basic standards of medical care and those violations caused you injury.
During the course of your lawsuit I will have an opportunity to question the doctor that you have sued.
Legally, this is known as a deposition or an examination before trial.
You should know that when you bring a lawsuit against a physician in New York, during the course of pretrial testimony I can question this doctor as if he is a medical expert. The law allows me the ability to ask questions about the standards of care that existed at the time he treated you.
Because he is also considered an adverse witness, I also have the opportunity to ask leading questions both during pretrial testimony and also at trial.
Since the law considers your doctor to be an expert, I have the ability to ask him opinion questions about the treatment he rendered to you.
Here's a perfect example...
If I were to simply ask the doctor this question, what do you think he would say?
“Doctor, did you treat Mrs. Jones in accordance with good and accepted medical practice?”
The answer will always be “Of course, yes.”
That question and that answer accomplish is nothing.
That's like asking the cat where the mouse is.
Then, after the doctor has established the baseline standards for how a physician should treat this patient, we will then comb through, in detail, the doctor's care and treatment of you from the very beginning until the last time he saw you.
Then after the doctor has established what treatment he rendered to you and why, we can then compare it to what the doctor described as the baseline standard of care.
I know from the outset, having already reviewed the doctor's records in detail and having already had a medical expert review these medical records, that there's some aspect of this patient's care and treatment that did not conform to the standard of medical care.
Yet, it is critical for me to get the doctor to acknowledge, verbalize and recognize that this is what good medical practice requires.
Then, during the course of my questioning, I can identify exactly what steps were missing from this doctor's care and treatment. Once I have established that the doctor failed to do X, Y or Z, then I can come right out and ask him whether failing to do that procedure or that step represents a violation from the basic standards of medical care.
They are extremely uncomfortable and defensive when being forced to acknowledge that they did not do something they should have done.
In that instance, I find many doctors tend to make excuses.
Their attorneys who are sitting next to them during pretrial testimony also make lots of objections trying to divert attention away from why the doctor failed to do a particular step in what should have been the correct thing.
In that instance, I have the ability and the opportunity, and in fact an obligation to ask the doctor hypothetical questions.
Even though the defense attorney will object to this hypothetical question, the doctor is still required to answer it.
Notice the distinction between simply coming right out at the very beginning and asking the doctor whether he treated the patient appropriately and compare it to how I set up those questions and established what the basic standards of care were. Then, when we expose exactly what the doctor did or did not do, he then has no choice but to acknowledge and accept the fact that certain things may not have been done.
Even when the doctor refuses to voluntarily acknowledge he did anything wrong, we then use hypothetical questions using those facts that have been established and already testified to and those facts that are contained within the medical records to establish that the doctor violated the basic standards of medical care.
By asking the doctor who is being sued what were the standards of care, we are able to show, using the doctor's own words, that we are more likely right and wrong that in a specific circumstance.
This helps dramatically for settlement purposes as well as being able to prove our case at the time of trial.