Did you know that even though I call a doctor you are suing to the witness stand as part of our case in chief, I have the ability and the right to cross-examine him?

Typically, in a civil lawsuit here in New York when you call a witness to the witness stand to support your claim, you are basically vouching for that witness's credibility. You are saying that this witness is favorable to your case.

What that means in practical terms is that I will usually ask this witness open ended questions so that the witness can now explain things to the jury.

These are typically friendly witnesses to you.

However, in a medical malpractice case here in New York, I have the ability and the legal right to call the doctors that you have sued and put them on as witnesses on our case. That means that when the judge says “Counselor, call your next witness,” I can tell the judge that I call “Dr. Jones to the witness stand.”

There is an important distinction when calling a doctor that you have sued on our part of the case. The distinction is an important one.

Since this doctor is the one that you were claiming was careless and caused or contributed to your injuries, I am permitted to treat this doctor as a hostile witness. That means that I do not have to ask him open-ended questions. Importantly, I do not want to give the doctor free reign to explain every answer to every question.

In fact, I want to do just the opposite. I want to ask the doctor leading questions that call for only 'yes' or 'no'.

Under no circumstance do I want to give the doctor the opportunity to explain anything. I want to control the questions and the answers he gives in order to show the jury what he did and why, from our perspective.

The only way to do that is with leading questions as if we were cross-examining him as a hostile witness.

In other words, if I call a medical expert to the witness stand, he is usually expected to be friendly and I will ask an open-ended direct questions. Now he can explain to the jury what happened and why. However, since I also have the ability to call the doctors that you have sued to the witness stand, I clearly do not want to give those doctors the same opportunity that our experts will have.

In fairness, the defense attorney will have every opportunity to have the defendant doctor explain those things that I did not give him an opportunity to explain.

To a casual observer watching the lawsuit process in court, these are subtle differences that a casual observer may not immediately recognize. However, for the litigant or the attorneys, this is a significant issue.

Here's the bottom line:

When you sue a doctor for medical malpractice in New York, I will usually call him as my first witness. I can ask him leading questions, and I will. The court will recognize that he is technically a hostile witness and permit me latitude to ask leading questions.

When I'm done questioning the doctor, his defense lawyer will then have an opportunity to ask open-ended questions which then gives the doctor an opportunity to explain. 

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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