In a medical malpractice case New York, the use of a hypothetical question is critically important during the doctor's pretrial testimony as well as at trial.

A hypothetical question asks the doctor to assume a certain set of facts. Based upon that set of facts, I can then asked the doctor a series of questions.

“Doctor, I want you to assume the following things as true for the purposes of this question:"

Then I will begin to lay out all the facts that I believe to be true. It is preferable to include facts that are not in dispute. At the end of this list of facts, I will then ask the doctor specific opinion questions.

“Doctor, assuming those facts to be true, would you agree that the standard of care requires that you do A, B and C?”

“Assuming those facts are true, would you agree that the failure to perform A, B and C represents a departure from good and accepted medical care?”

The hypothetical question assumes specific facts that are or will be in evidence. Likewise, the doctor's attorney can ask specific hypothetical questions using a different set of facts to set up and contrast the facts that the defense believes to be true.

It will ultimately be up to a jury to determine which set of facts they believe to be true.

Now, if the jury believes our set of facts, then we have established certain guidelines and standards of care that the doctor has either agreed to or disagreed to based upon our hypothetical questions.

In New York, a doctor who is being sued in a medical malpractice case is required to answer hypothetical questions and to give answers to opinion questions concerning his care.

The doctor's attorney will often object but cannot direct his witness not to answer the question. He can preserve the objection for trial and also at trial, and typically the defense attorney's objection will include the phrase “Objection, assumes facts not in evidence.

What that means is that the defense attorney is trying to prevent his witness from answering the question because he believes that the hypothetical question being asked assumes certain facts that are not in evidence or have not been introduced into evidence.

Often, the court will allow the doctor to answer the question because it is ultimately the jury's function to determine which facts are true and which are not.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer