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NY Medical Malpractice Case: Is It Possible to Destroy Doctor's Credibility During His Pretrial Testimony Known as a Deposition?

Ready?

Here it is...

  1. Show he's lying.
  2. Show he's a liar.
  3. Show his testimony is inconsistent.

Simple, right?

Now for all those who think this is mind games and that I don't like doctors, you're wrong.

It's not mind games.

It's not word games.

It's not semantics.

I love doctors.

Many in my family are doctors.

I would also agree that most doctors are great and well-intentioned.

However, there are some who are average.

There are some who are less than average.

There are some who are downright awful.

There are some who are careless.

There are some who are deficient in their knowledge of medicine.

If a doctor is careless and causes a patient harm, they become legally obligated to pay the injured patient money as a form of compensation for all the injuries.

That's our system of justice.

It's not an eye for an eye.

These aren't biblical times.

We live in a 'civilized' society.

Our system of justice here in NY allows an injured patient the opportunity, should they chooose, to start a lawsuit against a careless doctor or hospital staff IF AND ONLY IF a medical expert has confirmed (1) there was wrongdoing, (2) the wrongdoing was a cause of your injury and (3) your injury is significant and/or permanent.

We are not permitted to start a lawsuit simply because you feel your doctor did something wrong.

We are not permitted to start a lawsuit simply because you walked out of the hospital worse than when you walked in.

We are not permitted to start a lawsuit simply because you think the hospital staff must have done something to cause your injury.

That's not how any of this works.

Assuming a board certified medical expert has confirmed you have a valid case, you should know that the doctor whom you have sued will be questioned during your lawsuit in a legal proceeding known as a deposition.

That's really a question and answer session that takes place in the defense lawyer's conference room.

The questions I ask the doctor and his verbal answers are recorded by a court stenographer.

The doctor's answers represent his sworn testimony.

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

You should also know that during this pretrial question and answer session, there is no judge present and no jury present.

Just the attorneys for both sides, the doctor and a court stenographer, also known as a court reporter.

After all the questions and answers are transcribed, the court reporter then prepares a written booklet called a transcript, .

When I go into a defense attorney's office to question a doctor whom you have sued, there is much preparation that takes place before I head out that morning to the defense attorney's office.

Extensive medical research is done.

Medical studies and literature are obtained and reviewed.

Medical textbooks are read and consulted.

Our medical experts are consulted.

The legal issues surrounding this case are again reviewed.

I prepare an agenda about the key issues I need to discuss with the doctor.

I work on my outine and topics I will be covering with the doctor.

I perform extensive research on the doctor himself.

Is there any dirt I can dig up?

Has my investigator been able to obtain any good dirt?

Has he testified before?

Has he testifed as an expert?

Has he been sued in other cases?

Are there transcripts of his prior testimony?

You should know that really smart trial attorneys view a doctor's deposition as an opportunity to prove their case.

They don't wait till trial to do that.

The best trial attorneys will also question a doctor as if they are cross-examining him at trial.

That means that really good attorneys will ask leading questions.

"Doctor, did you see my client on January 1?"

"On that date, she complained to you of having radiating chest pain, correct?"

Those types of leading questions call only for 'yes', 'no', 'I don't know', or 'I can't answer that question'.

The opposite type of question would be an open-ended question that begins with Who, What, Why, When, Where and How.

In addition to trying to show that we are more likely right than wrong that what we are claiming is true, I also need to ask the doctor certain hypothetical questions.

I do that in order to get the doctor's medical opinions about the standard of care and whether he violated the basic standards of medical care.

My other goal when questioning a doctor during his pretrial deposition is to show that he's lying.

Lying about his notes.

Lying about his fund of medical knowledge.

Lying about conversations he had with the patient.

Lying about something substantial.

If I am able to successfully do that, the jury who ultimately hears the facts of this case during trial will be less sympathetic toward the doctor than if we cannot show that he lied.

If a doctor, or any witness for that matter, has a credibility problem, there's a good chance that will affect the outcome of his case.

It's not always possible to show a doctor lied.

It's not always possible to show a doctor altered his records (I've only been able to do it once in my career).

It's not always possible to show contradictions in the doctor's testimony compared to his medical records.

However, if I am able show the doctor lied or contradicted himself then the doctor's credibility will be shot.

To learn even more about how credibility can affect the outcome of a medical malpractice case, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer