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Can you imagine a doctor exploding like a two year old when I question his knowledge of medicine? Sounds just like when someone questions a presidential candidate and in response, he takes away their reporting credentials.

Let me set the scene for you...

This was a medical malpractice case.

It involved a plastic surgeon.

The patient felt that her plastic surgeon destroyed her eyelids during a procedure known as a blepharoplasty.

The patient felt her doctor was careless.

She felt her doctor caused her injuries.

She also believed that her injuries were permanent and disabling.

Fast forward six months.

I had an opportunity to obtain all of her medical records and have them reviewed by a board certified plastic surgeon.

My medical expert confirmed that the patient's doctor violated the basic standards of medical care.

My medical expert confirmed that her doctor's carelessness was a cause of her injuries.

My medical expert also confirmed that her injuries are permanent and additional surgery will not fix her problem.

That medical expert evaluation allowed me to start a lawsuit against this plastic surgeon.

You should know that in New York, we are required to have a medical expert confirm

  1. That the doctor was careless,
  2. That carelessness was a cause of her injury and
  3. Her injury was significant or permanent.

If any of those elements is missing, we cannot proceed with a valid case.

Fast forward about seven months later.

During the course of a medical malpractice lawsuit, each side has an opportunity to question the people who are involved in the lawsuit.

This is known as discovery.

The defense lawyer will question my client.

This is a legal procedure known as a deposition.

It's really a question and answer session that takes place in my office conference room.

There's no judge present.

There is no jury present.

However, there is a court stenographer present to record all of the questions being asked and all of the answers given by my client.

Even though this question and answer session takes place in an informal setting, the witness' answers carry the same exact weight as if they're testifying at trial.

A few weeks after my client was questioned by the defense attorney, I had an opportunity to question the plastic surgeon.

When I question the doctor whom you have sued, this takes place in the defense lawyer's office.

Again, there is no judge present and no jury present.

The defense lawyer is present along with his client a court stenographer.

From the moment we started, I knew this would be an unusual deposition.

This plastic surgeon came in dressed to his pretrial testimony wearing a sweatshirt and sweatpants.

He came in with a cocky, arrogant grin on his face.

He came in almost an hour late from our scheduled start time.

He looked like he just crawled in after working out at the gym.

Typically, a physician who appears for his pretrial testimony is often wearing a suit and tie. He wants to give the impression that he's a true professional.

This guy didn't seem to care one way or the other.

That's highly unusual for a plastic surgeon.

Most plastic surgeons are impeccably dressed.

As part of my agenda when I question a doctor during a medical malpractice deposition, I need to establish the basic standards of medical care for a patient in the same situation.

A doctor who is being sued in New York is deemed to be a medical expert.

That means he has specific knowledge of medicine that most lay people do not have.

I am permitted to ask the doctor about his knowledge of medicine and his understanding of the standards of care.

Since he is technically a medical expert, I can also treat him as a hostile witness and ask leading questions.

Typically, when I question a doctor at his deposition I will often ask open-ended questions in an attempt to get the doctor to explain.

"Dr. Jones, tell us what you did next..."

"Doctor, why did you prescribe that treatment for the patient?"

"Doctor, what was your differential diagnosis after you evaluated my client?"

In addition to learning whether the doctor has an ample knowledgg of medicine for this particular subject, I'm also permitted to ask him expert opinion questions.

That means I can ask him whether he violated the basic standards of medical care.

You might think that would be a silly question.

You might think that he's obviously going to say"No, I did not."

The reality is that it's not a silly question when phrased properly.

The opinion questions typically start with a hypothetical question...

"Dr. Jones, I want you to assume the following facts to be true...

  1. I want you to assume that Mrs. Gonzales complained of having saggy eyelids on January 1.
  2. I want you to also assume that you examined her and told her that having eyelid surgery would solve her problem.

"Would you agree that the standard of care required you to talk to the patient about the risks, benefits & alternatives to this proposed surgery?"

"Would you agree that a doctor who failed to discuss with a patient the risks, benefits & alternatives to this proposed surgery would be a violation from the basic standards of medical care?

He has to say "Yes."

That's an obvious question.

Want to know why?

It's because every doctor is tasked with informing his patient about the risks, benefits and alternatives of any recommended surgery or treatment. Otherwise, the patient is left without the benefit of making an educated decision about the best course of treatment for him.

Legally, we call that lack of informed consent.

"Doctor, would you agree that it's important to do a thorough physical examination of her eyelids and her face?"

"Would you also agree that when doing a physical examination of her eyes and eyelids, it would be important to know the approximate amount of eyelid tissue that would be removed in order to perform this blepharoplasty?"

"Would you agree. that when performing a blepharoplasty procedure, it is critical that you not remove excessive amounts of tissue or muscle?"

"Tell me why."

"Would you agree that if you remove too much eyelid tissue or muscle, you run the risk of having the patient unable to close her eyelids. True?"

"Would you agree, that in a patient who is left with an inability to close her eyelids to only two thirds of the way closed, in the absence of any structural abnormalities, the only way this could occur is from removing too much tissue or muscle?"

My goal here is to get the doctor to tell me in his own words what good medical practice required for this situation.

Then, I will contrast that with the appropriate standard of care and what was done in this particular case.

Then, I will ask the doctor specific opinion questions about whether his specific treatment conformed to the standard of care that he told me only moments earlier.

You should know that most doctors are very hesitant to actually admit that something they did violated the basic standard of medical care causing the patient harm.

You should also know that the best trial attorneys in New York don't come right out and simply aske the doctor whether he screwed up.

That's not a good technique.

The doctor will only get defensive and argue that he did everything correctly.

However, when you approach it the way I discussed above, the doctor has no choice but to admit that if certain things were not done, then it would clearly be a departure from good and accepted practice.

Let me bring you now to the doctor's deposition that was being done in his attorneys office.

The doctor was mocking me throughout much of my questioning.

He repeatedly turned to his attorney asking loudly whether he had to answer my questions.

This doctor was antagonistic.

He was condescending.

He had a chip on his shoulder.

I love that type of witness.

I knew immediately that a jury would hate him.

He was not warm and fuzzy.

He did not seem like the ideal, altruistic, lovable doctor we often see on TV or in the movies.

He seemed like a reality TV star that everyone loved to hate.

After about an hour of questioning, I started to launch into my standard of care questions.

He immediately became offended and asked his attorney whether he had to answer such demeaning questions.

I asked him to explain to me what were the 12 cranial nerves.

This is something a medical student should immediately know.

I asked him to explain the structures of the eye and eyelid.

Again, this is something he should know without having to think about it.

Apparently, he claimed to have done this procedure thousands of times before.

After getting past the basic medical definitions, it was clear to me that he had a fair understanding of the anatomy and the basic medicine.

You would be surprised to learn that when I question a doctor, many of them simply cannot tell me the anatomical structures for which they are a specialist in.

I often wonder whether they simply have a brain fart or simply have no clue. Most often, they have no clue.

Here's where it began to get interesting...

The moment I began asking this plastic surgeon to explain what the standard of care required for a patient with these types of complaints, he started having his temper tantrum.

He started screaming.

He started yelling.

His righteous indignation was palpable.

"How dare you question me! Who are you to question what I did and how I did it?"

"I'M A BOARD CERTIFIED PLASTIC SURGEON. YOU'RE ONLY A PUNY LAWYER!!!"

The volume level was extremely high.

I put my pen down and sat back in my chair knowing he was about to go on a tirade. 

I had seen this before.

My only real concern was whether he was going to jump across the table to try and physically put his hands on me.

From my standpoint, as an attorney representing the injured patient, this was wonderful.

This was fantastic!

It meant I was doing everything right.

It meant I've just pushed his buttons.

It meant I've now exposed his vulnerability.

It also meant he's hiding something.

I think he was really insecure that someone was questioning what he did.

Any time I've seen a doctor react so outrageously to being questioned is simply a 'tell' that gives away his true actions. 

He continued yelling.

He continued screaming.

This was great.

His defense attorney was staring at him with his mouth wide open.

I made sure the court reporter was recording all of this.

However you should know, this was not an audio or video recording.

The court reporter was transcribing all of my questions and all of the doctors answers. That later gets put into a transcript.

This transcript does not give a true indication of what it's like to be sitting in front of this ranting doctor.

I was smiling inside.

I now knew that I could replicate this outburst if this case ever went to trial.

I knew that by questioning this doctor's credentials and his ability to perform this procedure properly, he would become so outraged that his true colors would come out, as it did here.

The doctor worked himself up so much that he finally stood up, threw down his papers on the table and stormed out of the conference room as if he were two-year-old child.

His attorney didn't know what to do.

His attorney did a double-take wondering what just happened.

Realizing there was nothing else for him to do, he sheepishly ran out of the room to follow his client.

The court reporter turned to me in astonishment.

She said "In more than 20 years of doing this, I've never seen a doctor do what he just did!"

I asked her something interesting at that point.

I asked her that if she were a juror at trial sitting on this case, what would she think of the doctor now?

She said "I would think that he is 100% responsible for your client's injuries. I would think that he was trying to hide something and that would explain his tantrums."

That's exactly what I was thinking when the doctor ran out of the room.

Fifteen minutes later, the doctor's lawyer came back in the conference room with his client to tell me that they were ready to continue.

I was tempted to ask him to get his client to apologize for his obnoxious tantrum.

Had I done that, I fully expected the doctor to run out of the office, never to return. 

Besides, I didn't care about an apology.

I cared about getting his testimony and learning what other outbursts I might be able to provoke from my basic questioning.

I continued on for another two hours of questioning him.

There were no other childish tantrums.

I knew, after questioning this board certified plastic surgeon, that this case would never get to trial.

The doctor was not safe enough to go in front of a jury.

He was a wild card and could not be controlled by his own lawyer.

If he ever testified, he'd sink his own case.

Want to learn what happened to this case and why I share it with you today?

Two months after I questioned this cocky, arrogant plastic surgeon, I learned that the New York State Department of Health revoked his license to practice medicine. Permanently.

They felt that he was an imminent danger to the public and yanked his license to practice.

It turns out that he had been sued by more than ten of his patients in a short period of time.

The Department of Health got wind of it and investigated him for quite a while.

One case in particular was the straw that broke the camel's back.

The defense attorney put on a brave showing and claimed he could still try the case even though his client lost his medical license.

I knew he was full of it.

So did he.

The case never got to trial.

It was settled soon after.

To learn even more, I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer