Go to navigation Go to content

Can You Believe It? The Trial Attorney Had the Goods & Failed to do a Stunning Collateral Attack that Would Have DESTROYED Your Medical Experts' Credibility

You sued your doctor.
For medical malpractice.
You claim he was careless and caused you permanent injury.

Your doctor disputes all your claims.
He says he did nothing wrong.
He says that IF he did something wrong, so did you.

Then he claims that if he did something wrong, whatever he did, DIDN'T cause you harm.
Then he has the never to claim that if he did something wrong AND that wrongdoing did cause you harm, your injuries really are not that bad.
On top of that, he says "I'm never going to settle this case. I'll see you at trial."

Two years later your case finally comes up for trial.

Your lawyer has two medical experts who are testifying in support of your claims.
One expert will be testifying about liability; that your doctor violated the basic standards of medical care causing you harm and injury.
The other expert will be explaining to the jury how bad your injuries really are and the medical care and treatment you'll need in the future.

While preparing one of your medical experts, your lawyer learns some stunning news.
It turns out that this expert was recently convited of fraud. Medicare fraud.
CONVICTED. That means he went to trial and a jury found beyond a reasonable doubt that he was guilty of defrauding the federal guvoernment. There was no plea bargain. He never admitted he did something wrong. Instead, he was now a convicted felon. He was out on bail awaiting his sentencing when your case came up for trial.

He still wants to testify.
He thinks he can still be a credible witness.
He thinks that this fraud conviction has nothing to do with his extensive knowledge of medicine and the facts of your case.

Your attorney desperately wants to believe him.
He really has no choice.
Your trial is starting in two days and there's no way he'd be able to find another expert to review all your records and give you a favorable review in such a short time.

Your lawyer also knows that the trial judge will not entertain moving this trial date even a few days or weeks.
The judge made it clear last month during a pre-trial conference that he expects both sides to be ready for trial and that he would not tolerate any excuses or give any adjournments.
That puts your lawyer in a bind.

Your attorney now knows that he has a huge problem with his expert.
He now knows that your expert is worthless to him and your case.
Why?

Because once this witness testifies, the defense lawyer will rip his credibility to shreds.
Because his fraud conviction will destroy anything he's said.
Doesn't matter how many years he's been practicing medicine.

Doesn't matter how many prestigious awards he's received from medical societies in the country.
Doesn't matter how many books and textbooks he's published about this topic.
Once the jury hears about his fraud conviction, his credibility is in the toilet.

You might as well not even show up for trial at this point.
Your lawyer tells you that your case is over for all intents and purposes.
You're devastated.

Your attorney had no way of knowing this.
Your medical expert gave no advanced hint or warning sign of this impending doom.
You shift gears and begin thinking that maybe you'll have to sue your medical expert for failing to disclose this blockbuster information that will likely destroy your entire case.

You bring this up with your lawyer, but he pushes the thought aside for now.
He needs to continue preparing your case for trial.
Your lawyer has no obligation to tell the defense about these facts and there's no way a smart trial lawyer will disclose this information to his opponent.

If the defense did his homework, he'll likely find out about this on his own.
If he doesn't, that's his loss and your gain.
But, a smart lawyer will recognize that this damaging information will most likely come out at trial.

On the other hand...maybe, just maybe, the defense lawyer doesn't know about this devastating blow yet.

WHAT IS A COLLATERAL ATTACK ANYWAY?

Here's the scenario...

Your lawyer has your medical expert testify about his credentials and how he's spent so many hours pouring over all your medical records. He has reached the conclusion that your doctor, the one you trusted, was careless. He was negligent. It was his carelessness that caused all your injuries. Then your lawyer has your expert explain to the jury WHY your doctor violated the basic standards of medical care and what he should have done instead.

He'll tell the jury that IF the proper procedures and treatment had been given, then you would not have ANY injuries and you wouldn't be here in court seeking compensation for all your harms and losses.

This is known as direct examination. Your lawyer will be asking lots of open-ended questions that allow for your expert to explain everything. 

WHO?
WHAT?
WHERE?

WHEN?
HOW?
WHY?

After your attorney has extracted as much information to support your claim, he then announces to the judge "I have no more questions your honor." The judge then turns to your opponent and says "Counselor, you may begin your cross examination."

The defense lawyer then gets up and starts to cross examine your medical expert.

One line of questioning will have to do with what medical records he reviewed to reach his conclusions. The defense wants the jury to know that if he didn't review all of the necessary medical records, then his conclusions might be flawed and unreliable.

Another line of attack involves his knowledge of the medicine and his knowledge of the facts of your case.
Again, if his knowledge of medicine is lacking or he did not know certain important facts, he may have reached the wrong conclusion.

Another strategy to attack the witness is known as a COLLATERAL ATTACK and that's what I'm talking about in this article.
It's a way to attack this witness' credibility that HAS NOTHING TO DO WITH THE FACTS OF YOUR CASE.

Let's say for example that the defense lawyer is a savvy trial lawyer and did his homework. (There are a few defense lawyers out there who are excellent at what they do.) Let's say the defense lawyer found out that your expert was recently convicted of fraud. The defense will have obtained every document confirming the conviction and try to obtain every trial transcript from that criminal case. The attorney will likely get an official document from the court system confirming that this doctor was recently convicted.

You and I know that this expert's conviction has NOTHING to do with his review of your medical records.
He's a well-qualified, board-certified expert with twenty-five years of clinical experience under his belt.
But as we've just learned, he has a major character flaw.

He lied.
He cheated on his taxes.
He defrauded the federal government by billing for medical services that he never performed.

The federal government took him to town and made an example of him solely because he refused to acknowledge what he did was wrong. He refused to give a mea culpa and apologize. Had he done so, his lawyer told him, he'd get a suspension of his medical license for a year and a big slap on the wrist and have to repay the government $2 million dollars that he took from the taxpayers.

This doctor said 'No'.
Sucks for him.
Especially since a jury decided that he lied.

A jury decided that he was a sleaze.
A jury decided that the prosecutor was correct about each criminal charge leveled against this otherwise upstanding and well-regarded physician in the community.

A smart defense lawyer armed with this devastating information will have a field day.
He knows he's going to destroy your experts' credibility.
He knows how important credibility is to any witness who testifies.

This lawyer is going to spend a great deal of time exposing the doctors' lies to the jury.

Why?
Because it's good drama.
It will expose this choir boy as a fraud.

"Doctor, were you ever convicted of a crime?"
"In fact you were charged with defrauding the federal government out of $2 million dollars. Isn't that correct?"
"You disputed those criminal charges, correct?"

"You exercised your constitutional right to a trial by a jury of your peers, correct?"
"Your criminal trial took place in the Federal court house just down the street, right?"
"In fact, your criminal trial ended just last week, correct?"

"Among the charges were fraud, deceptive billing practices and lying to federal agents, correct?" the attorneys asks while looking at some official paper he's holding in his hands. The jury is fascinated. You can see the shocked look on their faces.
"Your trial lasted three weeks, isn't that true?"

"You exercised your right to testify in your defense, correct?"
"You sat on the witness stand, just like you're sitting now, and swore to tell the truth, right?"
"You told the jury that you did nothing wrong, correct?"

"You looked right at the jury, members of the community who were there to judge you, that you committed no crime, right?"
"You swore you were innocent, true?"
"You raised your hand and swore to tell the truth, correct?"

"You told the jury that this was all just a misunderstanding. A simple billing error, correct?"
"A billing error that went on for two entire years. One patient after another. One bill after another. Isn't that true doctor?"
"You told the jury one excuse after another for why you billed out $2 million for medical services that you never delivered. Isn't that right?"

"After three weeks of trial testimony and evidence, the jury returned a guilty verdict on each and every count against you. Isn't that correct doctor?" the lawyer says with a hint of sarcasm.
"Judge, I'd like the court to take judicial notice that this good doctor was in fact recently convicted by a jury of his peers for fraud, for stealing $2 million dollars from the federal government and for lying to federal agents," the defense lawyer says as he hands an official looking document to the judge which confirms all that he has said.

"The court will take judicial notice of this criminal conviction in Federal court last week," the judge says to a stunned courtroom.

By the time the defense is done with his cross examination, the jury won't even believe that the doctor's name is really who he is.
They will have forgotten all about his medical opinions and how authoritative they were.
They will likely ignore all the years of his experience.

If the defense attorney has done his job, the jury will likely look upon this expert witness with scorn and not believe a single word he said.
You see, the jurors are fact finders.
They are tasked with evaluating each witness to decide if they're believable.

The jury gets to decide who they believe and who they don't.
The jury gets to ignore testimony from a witness whom they don't believe.
"But wait," you say.

"All this collateral stuff has nothing to do with the facts of my case! The doctor's opinion is still the same, regardless of his recent criminal conviction," you argue to your lawyer.
"You're right," your attorney tells you.
"However, the substance of his medical opinions are now suspect. Anything he says will likely not be believed," your lawyer tells you with sadness in his eyes.

In addition, at the end of the trial, after the lawyers have made their closing arguments, the judge instructs the jury on the law. One of those legal instructions has to do with credibility. It has to do with lies and lying under oath. Here's that instruction in a nutshell...

"If you find that a witness has testified falsely about one thing, you have the right to disregard All of that testimony." In law we call that legal instruction "FALSUS IN UNO."

LET'S GET BACK TO THE LAWYER WHO FAILED TO DO A COLLATERAL ATTACK IN YOUR TRIAL...

The defense lawyer blew it and never even did a collateral attack on this witness!
He lost his opportunity to destroy his credibility.
He failed to attack this doctor on his recent criminal conviction.

How could this be?
Did the litigation Gods look upon you kindly and somehow prevent this lawyer from realizing what had happened?
Against all odds, it turns out that this defense lawyer failed to do an updated background check on your experts who would be testifying in your case. He had done one earlier during the litigation process. In fact, as soon as he figured out which experts would be testifying on your behalf, he immediately had a background check done on each of them.

He immediately ordered his associate to dig up as much dirt as he could on each including criminal history, bankruptcies, obtaining trial transcripts in cases where they testified in other court cases. All that investigation yielded a big fat egg. Nothing of any substance he could use. That meant he'd have to attack your expert on the facts and his review of your medical records.

You exhale a big sigh of relief.
You just dodged a major bullet that would have destroyed your entire case.
And now the jury knows nothing about this doctor's criminal conviction.

You just may wind up with a successful outcome after all.

To learn about a case I handled where the doctor lied to the jury and I exposed that lie, I invite you to watch the video below...

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer