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You sued a doctor for medical malpractice in NY. His deposition is coming up shortly. Can you videotape his deposition testimony to use it later at trial?

First, a deposition is pretrial testimony.

It's given under oath.

It is a question and answer session taken in the attorney's office.

A court stenographer is present and records all my questions and and all of the doctor's answers.

There is no judge present.

There is no jury present.

In New York, each side has an opportunity to question the other side to find out what was done and why.

In a medical malpractice case, you will be asked questions by the defense attorneys about what complaints you made, what you said and what you they did. You will be asked questions about what injuries you suffered as a result of whatever wrongdoing you claim occurred.

On another day, I will have an opportunity to question the doctors that you have sued.

Some injured victims ask whether I can videotape your doctor's deposition testimony.

They want to see him squirm.

They want to hear him.

They want to hear his excuses.

They don't want to be in the room when I question him, but would prefer to see it on video.

The answer is "Yes."

However, in New York it is rarely done.

The reason is rarely done is that it is always preferable to have the doctor who is being sued brought into court to testify about what he did.

It is always preferable to have the doctor in court describing what the standards of care were and what he observed.

Having a videotaped deposition is the next best thing to being there.

If you have the ability to have the witness in court, in person, it is much better for the jury to understand what actually happened.

In the event the doctor is ill or disabled, then we might want to videotape the doctor's pretrial testimony so that if he is unable to come to court and testify, we would then have the next best thing.

"Can we also videotape our medical experts?"

In a medical malpractice case we are required to bring in medical experts to support our claim.

There are some instances where the medical expert is unable to physically come to court and testify.

He might be busy with patients or in surgery.

He might be out of the country at that time.

Whatever the reason, if the medical expert is unable to come into court and testify then we can schedule a pretrial question-and-answer session to be videotaped.

There are special procedures that we must use when this happens.

The first is that we must notify the defense that we intend to call a particular medical expert at trial.

We must also let them know that this medical expert is unable to come in and testify.

We must let them know that this expert is instead available for pretrial questioning and that this question-and-answer session will be videotaped for the purposes of showing it to the jury at trial.

The only way we can actually use the videotaped testimony is if the defense is given a full opportunity to question and cross examine the doctor during this pretrial sworn testimony.

Otherwise, they will claim that they are prejudiced since they never had an opportunity to question and cross examine this witness.

If we give the defense this opportunity, which they are entitled to, then we will be able to present the videotaped testimony to the jury during the course of trial.

Naturally, the defense will have an opportunity to present those portions of the doctor's testimony that they believe is favorable to them at the appropriate time during the trial.

You might think that a videotaped question and answer session, also known as an examination before trial, would be as exciting as watching a cross examination on a TV show like 'Law and Order' or 'Boston Legal' or 'LA Law' or even in a movie. However, the reality is that these are nowhere near as exciting.

Unlike on TV, these pretrial depositions are not fast-paced dramas.

The questioning isn't over in a two minute dramatic scene.

In real life, these question-and-answer sessions can go on for many hours, if not days.

Lawyers must methodically and strategically ask key questions to establish liability, causation and damages.

When a lawyer takes the time to strategically and correctly ask the appropriate questions, he can establish all the necessary elements needed to prove your case.

In legal terms this is known as making out a prima facie case.

To answer the question above, the answer is "Yes."

A doctor's deposition can be videotaped, however it is the exception rather than the rule when that happens.

To learn whether you can take a Selfie with the Judge at trial, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer