It was his deposition.

It was in his lawyer's office.

It was my chance to question the doctor.

It was a question & answer session known as a deposition.

This is pretrial testimony.

It's given under oath.

It's also known as an examination before trial.

It carries the same exact weight as if he's testifying at trial in a courtroom with a judge and jury.

He arrived an hour late to his own deposition.

No excuse was offered.

He was dressed as if he'd just come from the gym.

Wearing a ratty sweatshirt and baggy sweatpants, he sat down.

He was arrogant.

He was cocky.

He was obnoxious.

This was part of the discovery process in this medical malpractice lawsuit here in NY.

My client was a patient of this cocky, rude plastic surgeon.

She had plastic surgery with him.

She liked him.

He was self-assured.

He was beautifully dressed.

His office was immaculate and beautifully decorated.

She had gone in for a consultation.

He convinced her that she needed plastic surgery that would be routine and simple.

He never told her about any risks.

He never told her about any alternatives.

By the time her consultation was over, he had encouraged her to have an eyelid lift.

She finally agreed to have the eyelid surgery.

She wanted to remove the wrinkles around her eyes and her eyelids.

She wanted to look sexier.

She wanted to look prettier. 

Her understanding, based upon what he told her, was that it would be a few snippets here and there, removing the skin tissue and the wrinkles would all be gone.

A little nip. A little tuck and voila! Everything would be beautiful.

She'd look years younger.

Except there was a problem.

She noticed a problem immediately after surgery.

She couldn't close her eyelids.

She couldn't blink fully.

He told her to give it time.

He told her to massage her eyelids.

Over the next few days and weeks, that's what she did.

Except it became more pronounced.

When she tried to sleep, her eyelids would not fully close.

They would only go about three quarters of the way closed.

When she blinked, her eyelids only closed three quarters of the way.

People at work would ask her if she had a problem with her eyes.

When she was standing in line at Starbucks to get coffee, people would stare at her wondering what's wrong with her eyes.

She began wearing dark sunglasses during the day and in the office at work.

That prompted more questions.

Her boss wanted to know whether she was constantly hung over and that's why she was wearing sunglasses.

The answer was no, she was not hung over.

She just couldn't bear anyone looking at her wondering why her eyelids looked so strange.

It got so bad at work that she would often hide under her desk so that she would not be seen by her coworkers.

She needed eyedrops to prevent her eyes from drying out at night.

Each visit with her plastic surgeon was less and less helpful. 

He kept telling her to massage her eyelids.

What she didn't know at that time was that no amount of massaging her eyelids would ever fix her problem.

She felt she was getting nowhere with his plastic surgeon.

Someone who she once trusted.

She lost faith in him as she realized she wasn't getting better over time.

She made an appointment with a well-known plastic surgeon in Manhattan for a second opinion.

A doctor in New York City.

He'd done a lot of work on celebrities.

He told her immediately what the problem was.

“Your surgeon removed too much skin and muscle.”

“This will never get better by massaging.”

He offered her a number of surgical options, none of which appealed to her at that time. They all have risks and of course, there were no guarantees.

She came to me crying.

Her situation at work was dire.

Nobody wanted to work with her.

They shunned her.

She wore her dark sunglasses all the time now.

During the day and at night.

In the office...

During meals...

and while home.

She had to do something to change this.

She came to me to see whether she had a valid medical malpractice case against her original plastic surgeon.

I told her I would investigate and look into her matter.

The first step involved gathering all of her medical records.

That took many months.

Once I did that, I then read through each and every page of every medical record she had.

I then reached out to her celebrity plastic surgeon in Manhattan.

I wanted to talk to him to get his thoughts, assuming he would get on the phone and speak to me.

He did.

He confirmed what my client had told me.

He said it was a departure from good and accepted surgical practice to remove as much skin, muscle and tendon that he did.

As a result of those violations from the standards of good and accepted surgical care, this patient suffered permanent injuries.

There was only one wrinkle to this discussion.

This plastic surgeon refused to come in and testify as an expert on our behalf.

He told me he did not want to get involved beyond this conversation and did not have time for litigation-related malpractice matters.

I thanked him for his honesty and offered to compensate him for the time he spent on the phone with me.

He said that was not necessary and was only trying to help his patient and other patients from being in the same situation.

You should know that in medical malpractice cases here in New York, we are not permitted to start a lawsuit unless we have confirmation by a qualified medical expert that

  1. There was wrongdoing,
  2. The wrongdoing caused injury and
  3. The injury is significant and/or permanent.

Only then, once we have confirmation by a medical expert, are we permitted to start a lawsuit.

Since the patient's treating plastic surgeon confirmed all of those things for me, technically I could proceed forward and start her lawsuit.

However, I felt it was prudent to retain our own board-certified plastic surgeon who would start from scratch and review all of her records.

Once I received final confirmation from my expert, then I would go forward and start a lawsuit.

I hired a well credentialed board-certified plastic surgeon with an office on the upper East side of New York City. He was affiliated with a well-known prestigious hospital and after reviewing all of my client's medical records, said the same exact thing that her second plastic surgeon did.

My expert confirmed that the original plastic surgeon violated the basic standards of medical and surgical care.

He removed too much skin tissue.

He removed too much of the muscle that controls the eyelid.

He cut the muscle too short.

He failed to give her sufficient information to make an educated decision about the risks, benefits and alternatives to this surgical procedure.

Medically, this procedure is known as a blepharoplasty.

It is an elective procedure.

There is no urgency or emergency need to have this procedure done.

It is often done to minimize and reduce skin wrinkles surrounding the eyelids.

During the course of the lawsuit, my client was questioned by the opposing lawyer.

She spent almost an entire day being grilled about the events leading up to and including her eyelid surgery.

Then, she was asked in detail about the problems and damages she experienced as a result of this procedure.

A few months later, I had an opportunity to question the plastic surgeon that my client sued.

You should know that in preparation for this question and answer session, it is imperative to do a significant amount of research on the doctor and his background.

My research revealed some remarkable things.

I knew all about his credentials and the fact that he was board eligible as a plastic surgeon.

He was not board certified, which is the highest level of certification a doctor in his field of medicine can achieve.

However, he brought a discrimination lawsuit in the past, in which he was successful. That provided a ton of useful information about who this person really was and what had gone on in his past.

In addition, I was fully prepared for questioning him on the medicine.

You should know that during pretrial testimony of a physician, I have an opportunity to treat this doctor as if he were an expert witness. That means, I have the ability to question him as if I'm cross examining him at trial.

What that means from a practical standpoint, I can ask him leading questions.

Questions that call for a yes or no.

I do not need to ask him open-ended questions such as who, what, where, when and why.

Asking leading questions during the doctor's pretrial questioning accomplishes many different goals.

  • The first goal is to establish control over the questioning.
  • The second goal is to establish a clear path toward getting the doctor to answer my specific questions.
  • The third goal is to ask the doctor hypothetical questions.
  • The fourth goal is to ask expert opinion questions.

In New York, I am permitted to ask the doctor to assume that certain facts are true.

If those facts are indeed true, I can then ask the doctor whether performing certain procedures or failing to do certain things would be a violation from the basic standards of medical care.

The reason we are permitted to ask hypothetical questions is that ultimately it will be up to a jury to determine if we are more likely right than wrong that our facts are true.

If the jury believes the evidence and testimony for our side are more likely right than wrong, then I can show at trial, using the doctor's own words, that he violated the standard of care.

Likewise, the defense uses the same strategy with our own experts at trial.

In the weeks leading up to this doctor's pretrial questioning, I had sufficient ammunition to tear apart his reason for doing this eyelid surgery as well as his poor surgical technique.

I also had sufficient ammunition to question his credibility based upon his prior lawsuit and prior testimony.

I arrived in his lawyer's office early.

The court reporter who records all the questions and all the answers was also early.

Typically, a defense lawyer will meet with his physician client a few days before the actual question and answer session in order to prepare him for questioning.

Whenever you tell someone that a witness is being prepared for their deposition or being prepared for trial, they get the impression that the lawyer puts words in the client's mouth.

Nothing could be further from the truth.

A preparation session is to familiarize the witness with the types of questions that the other attorney is likely going to ask.

He gives the witness an opportunity to think about those questions and to think about the answers.

You will find that the best trial lawyers in New York are ones who tell their witnesses to be totally truthful and honest.

The best trial lawyers tell their clients and witnesses not to exaggerate.

As part of the preparation, witnesses are told that if they do not remember something, they are not to guess at the answer. This is not a guessing game. It is not a memory test.

If they don't remember something they are to tell the opposing lawyer that they simply don't remember. There's nothing wrong with that.

The waiting begins...

After waiting 15 minutes beyond our scheduled start time, I was informed by the receptionist that the doctor had previously been prepped and was ready to go, and we'd get started whenever he arrived.

The receptionist was surprised the doctor had not yet arrived for his deposition.

30 minutes past the scheduled start time his attorney came out and told me that he was trying to reach the doctor but please give him a little more time.

30 minutes turned into 40 which turned into 45, then 50 minutes.

This was annoying.

This was disrespectful.

I packed up my bag and was ready to walk out the door.

60 minutes had gone by and as I was getting my bag packed up, this cocky arrogant, self-righteous plastic surgeon walked in the door.

I made those observations in the seconds that I saw him walk in.

I knew what he looked like from doing my research online.

His hair was perfectly combed. Not one hair was out of place.

He clearly had a chip on his shoulder.

You could see his swagger.

You could tell what he was thinking just by looking at him.

You got the feeling that everyone around him were peons.

He gave the impression that he was far superior to everyone in his presence.

I had questioned doctors like him before.

They were easy to antagonize.

They were easy to push their buttons.

You should know that can be a very useful strategy during a deposition.

By pressing the witnesses buttons, it gets them excited and they tend to talk more than they usually would.

Doing that also gives you a preview of what might be possible at trial.

If a doctor explodes and blows up in response to a question in his lawyer's office, just imagine what is likely to happen in front of a jury in court.

If you remember at the beginning of this article I told you what the doctor looked like when he walked in.

In my many years of practice as a medical malpractice lawyer representing injured victims here in New York, I've had the privilege of questioning hundreds and thousands of witnesses and doctors.

Every doctor I've questioned has been well-dressed.

They've always come to the deposition wearing a suit and tie.

No exception.

Except this one.

This one was different.

This guy walked in wearing a ratty sweatshirt filled with holes. It looked like he'd just been working out or maybe he just woke up.

He was also wearing sweat pants and sneakers.

I've never seen a plastic surgeon dressed like this before.

It didn't matter to me what the doctor was wearing.

It mattered how he answered my questions.

I knew that if this case ever got to trial, the doctor would never dare walk into a courtroom wearing sweatpants and a sweatshirt.

During the course of my questioning, the doctor was hesitant and often refuse to answer my questions.

He was playing games with me.

He was trying to outsmart me.

His attorney had to repeatedly remind him that he was required to answer my questions.

The defense attorney knew that my questions were phrased appropriately.

The defense attorney was there to protect this doctor's legal rights.

If I were to ask a question that was inappropriate or incorrectly phrased, he would clearly voice his opinion and say “Objection.”

The doctor seemed pained when his attorney pressed him to answer my straightforward questions.

The most interesting part of the deposition came when I began asking this plastic surgeon  expert opinion questions.

“Doctor, would you agree that when performing a blepharoplasty, it is critical that you do not remove too much skin and muscle?”

That prompted the doctor to throw down his papers and start yelling. He then stormed out of the room like a two year old throwing a tantrum. As part of his tantrum, he yelled at me “How dare you question my medical care and treatment as a plastic surgeon. This is outrageous! This is bullshit! I won't tolerate this!”

He then stood up and stormed out of the room.

His attorney was in shock.

His attorney went scurrying out after him.

His lawyer knew that if the doctor left the deposition and failed to return, I would then have significant ammunition to ask the judge to impose sanctions, fines and possibly even dismiss the doctor's answer to our allegations.

If a judge dismisses a doctor's answer, that means that we get an automatic win by default. That's bad news for the defense. That would be good news for us.

The defense attorney ran out after his doctor, presumably to calm him down and to counsel him that he must return to finish this question and answer session.

The court reporter who was transcribing all of the questions and all of the answers, was just as shocked as I was. She had never seen a professional act this way in response to questioning in a medical malpractice case.

This was childish behavior.

This was arrogant.

This was cocky and abrasive.

I knew exactly what a jury would think of him if this case ever got to trial.

And it wouldn't be pretty.

After 10 minutes, the doctor and his attorney returned back into the conference room.

The doctor did not apologize.

I then asked him the same question that prompted him to throw his tantrum. 

I then asked him more expert opinion questions.

He laughed at me. He ridiculed me.

He mocked me.

I didn't care.

I had a job to do and I knew how to push his buttons.

I knew he would make a terrible witness at trial.

A jury would hate him.

They wouldn't care what a great plastic surgeon he claimed to be.

I left the pretrial deposition with plenty of ammunition to support our claim.

Months later I learned something fascinating.

The New York State Department of Health had just revoked this doctor's medical license.

Not suspended him.


They pulled his license.

They felt he was an imminent danger to the public.

Turns out he had been under investigation by the New York State Department of Health for quite a while.

Many of his patients had complained to the New York State Department of Health.

I knew also that a good number of his patients had brought lawsuits against him.

However, the mere fact that someone has brought a lawsuit does not automatically mean that the allegations are correct or true. Some of those lawsuits had been settled. None had yet gone to verdict.

The fact that this doctor's license to practice medicine had been revoked was significant.

I called my client to tell her the news.

She was happy.

She was happy that no other patient would be subjected to this doctor's incompetence.

She took great pleasure in knowing this arrogant doctor would never practice medicine in the state of New York again.

From a strategic standpoint, I knew that the defense could never let this case get to trial.

Once the jury learned that the doctor's license to practice medicine had been revoked, it would not be pretty for the doctor.

I'm pleased to report that a few months later I was able to enter into settlement negotiations with the defense and my client was able to resolve her case without going to trial.

Want to know who had the last laugh here?

It certainly wasn't this cocky and arrogant plastic surgeon who smirked at me during his entire pretrial questioning.

My client told me she would have loved to watch the doctor opening the letter from the New York State Department of Health revoking his license.

Just the image of watching that smirk be gone forever together with all the compensation she needed to put her physical injuries temporarily out of her mind gave her the last laugh.

To learn even more about this case, I invite you watch the video below...



Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer