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You WANT to Talk to Medical Expert Reviewing Your Medical Malpractice Matter. You Want Him to Know Details That are NOT Contained in the Medical Records. Will Your Attorney Allow You to Speak to Your Medical Expert?

The answer is no, he won't.
He wants the medical expert to render conclusions and opinions based solely on your medical records.
Nothing else.

Why is that?
Because he wants an honest opinion based ONLY on the medical records.
Not on hearsay.

Not on emotional details.
Not on a one-sided explanation of what happened, even if totally true.
The doctor's attorney will do the same thing.

If you have a valid case, when we go to trial, we will be required to show that we are more likely right than wrong that what we are claiming is true. If we've done what we're supposed to during the lawsuit process, by the time we get to trial, we will already have established that IF certain things were done, or not done, then the failure to do those things or doing them improperly were violations from the standard of care.

We will be proving your case using YOUR MEDICAL RECORDS.
Using the doctors' own words and testimony.
Your version of the events will certainly be used to fill in the gaps and to give a detailed picture of what happened to you.

However, we always use your own medical records to show (1) your doctor violated the basic standard of care.
We use your medical records to confirm that (2) your doctors' wrongdoing caused you harm and (3) the injuries you suffered are significant and/or permanent.

You should know that in New York, if you want to sue your doctor for medical malpractice, I cannot simply prepare the lawsuit papers and file your case a few days later. That's not how it works. That's not how any of it works.

How Does it Work?

The law requires us to have a qualified medical expert review all of your medical records.
He must confirm that:

  1. Your doctor was careless,
  2. His carelessness was a cause of your injury and
  3. Your injury is significant.

All three of those elements MUST be present in order to bring a lawsuit on your behalf.
Some injured patients, when they learn that an expert must evaluate their medical records want to explain.
They want to explain what's contained in their record.

They want to clarify what happened at a particular time.
They want whoever is evaluating their case to know certain facts that likely are not fully detailed in their records.
"You have to let me speak to him...I have to tell him about this incident..."

Ah, no. 
That's not going to happen.
I will not allow you to influence his decision-making process and reach conclusions based upon conversations with you.

Here's why.

If you were to speak to him and you raise compelling facts and arguments that are not contained in your medical record, that creates a big problem. When your case gets to trial, the defense attorney will attack the basis for his conclusions. Let me show you how...

CROSS EXAMINATION OF YOUR MEDICAL EXPERT AT TRIAL

"Dr. Jones, what medical records did you review in order to reach your conclusions in this case?"
"Oh I reviewed 5 different doctors' records and two hospital records," your expert says confidently.
"In reaching your opinions about what happened here did you speak with the patient?" the defense lawyer asks.

"Yes, I did," he says.
"And did your opinion factor in what the patient said to you and her version of the events?"
"Yes, it did," he says.

"Did you believe all that she told you?" he asks.
"I had no reason not to," your expert says, wondering what the defense lawyer is getting at.
"You gave her statements 100% credibility then?" the defense attorney asks.

"Again, I had no reason not to believe what she was telling me..." he says hesitatingly.
"I want you to assume for the purposes of my questions the following things..."

"I want you to assume that the first thing the patient told you was incorrect. Instead, what happened according to Dr. Jones is just the opposite. Assuming this fact to be true, would you agree that your opinion about what happened in this case and whether Dr. Jones violated the standard of care would change?" he asks.

Your medical expert will likely have to agree.

"I also want you to assume that the next fact the patient told you was also totally untrue and unsupported by any evidence, testimony or witness. If you assume that instead the following things happened and not what the patient told you, would you again agree that your version of what happened here would be markedly different than what you have already told us about?" he asks, setting up your expert to fail miserably.

Why?

Because if your expert was basing all or some of his opinions and conclusions on information provided by you, the injured patient, now he is accepting your word over a physician or hospital staff. It then becomes a he said/ she said situation. What that really means is that if you now challenge those statements as being inaccurate, you now have the ability to change and alter the doctors' opinions.

That's a dangerous situation to be in at trial.
Your attorney will have spent a tremendous amount of time, energy and resources to prosecute your case based SOLELY on the say-so of your medical expert. If his opinion of your case is flawed at the very beginning, then by the time he realizes it two or three years down the road, it's already too late. 

He's made a significant investment of his time and money trying to get you compensated for your injuries.
However, there's a good chance you'll wind up on the losing side because of this exact problem.
You never want your medical expert to base his conclusions just on what someone said or didn't say.

We want proof.
We want documentation.
We want evidence that we can point to in order to show that you are entitled to a verdict in your favor.

We want your medical expert to make an independent decision based upon his clinical experience, his knowledge of medicine and his detailed review of your medical records to come to his conclusions that your doctor was negligent and his negligence caused you permanent injury.

To learn how to control a medical expert at trial, I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer