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During Cross Examination at Trial, this Attorney Asked a Medical Expert "Doctor, are you saying you CAN'T answer my question or you WON'T answer my question?" SAY WHAT?

This was a medical malpractice trial.
Here in New York.
I was watching the trial.

The injured patient's lawyer was in the middle of cross examining a witness.
She was questioning the defense's medical expert.
This was an expert brought in to testify FOR the doctor who was being sued.

This medical expert was highly qualified.
She was board certified.
She was in practice for more than 20 years.

She was an author.
She was a speaker.
She was a lecturer.

She was a surgeon.
A gynecologic surgeon.
She explained things very clearly to the jury.

The patient's attorney was aggressive.
She asked leading questions.
It sounded to me as if she liked hearing herself talk as many of her questions failed to advance her clients' case.

In my opinion, many of this lawyers' questions did nothing more than show off her knowledge of the medicine involved.
Although she knew how to ask leading questions, she didn't know how to conduct a real cross examination.
She took forever to get to the point.

She droned on endlessly about things unrelated to the key issue in the case.
Then, when it came time for her to ask climactic questions, she blew it.
What am I talking about?

I'm referring to asking the expert hypothetical questions.
In a medical malpractice case in New York, we are allowed to ask an opposing expert to assume certain facts to be true.
We know that the expert disputes our set of facts.

The expert has made that perfectly clear.
However, a hypothetical question allows us to ask the doctor a series of questions like this...

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

Mrs. Jones saw Dr. Gold on January 1.
On that date, Mrs. Jones complained of a breast lump in her right breast.
On that date, Dr. Gold failed to do a breast evaluation.

Would you agree that failing to do a breast examination on that date, given those facts to be true, would be a violation from the basic standards of medical care?"

This question is simple and lays out a few basic facts that support the patient's claim.
The question calls ONLY for a yes or no answer.
There is no wiggle room here.

It's either YES or NO.

Well, in the case I was personally observing, the patient's attorney asked this medical expert a hypothetical question.
I knew that it was not phrased properly.
It was jumbled.

It was multiple questions.
It had multiple disputed facts.
It was not artfully phrased.

The doctor could not answer the question yes or no.
"I can't answer the question the way you phrased it," the expert replied.
That infuriated the plaintiff's attorney.

Instead of simply asking the question a different way, she snidely said
"YOU CAN'T OR YOU WON'T ANSWER THE QUESTION?"
The tone mattered.

You can't 'hear' the tone she used with the doctor.
It was edgy.
It was annoying.

It was obvious to everyone in the courtroom, including the jury, that the plaintiff's attorney was frustrated that she couldn't get a straight answer to her question.

A more experienced attorney would have simply turned the question around and asked it a different way.
If the doctor again couldn't answer yes or no, he'd have simply rephrased it again and again and again.
The doctor SHOULD HAVE said "I'm sorry, I can't answer your question yes or no since it calls for an explanation..."

Or, "I'm sorry, I can't answer your question yes or no, as there are some facts that you've included that are simply not supported by any evidence in this case..."

It was apparent to me that this attorney's frustration was obvious to all.
She couldn't and didn't know how to rephrase the question.
She didn't know what else to do to elicit a yes or no answer from the doctor.

Her coping mechanism was to yell out an inappropriate comment/question that showed her inexperience...
"YOU CAN'T OR YOU WON'T ANSWER THE QUESTION?"
I also noted that the defense attorney should have jumped up out of his seat and yelled out "Objection Judge, that's argumentative!"

To the defense lawyer's credit, he finally got up and made a weak objection.
The judge ignored the objection and told the plaintiff's attorney to move on.

Making snide comments and revealing your frustation does nothing to advance your client's case.
It simply shows the jury that you don't know how to deal with a medical expert who may be trying to tie you in knots. 
On the other hand, the doctor may be earnestly trying to answer your question.

This entire outburst could have been alleviated if the attorney realized the problem was not with the medical expert on the witness stand but rather with the attorney herself and her inability to ask proper hypothetical questions.

Hopefully, the jury saw this negativity and edgy attitude for what it was.
An attorney who was repeatedly frustrated because she wasn't getting answers the way she wanted.
If only she had rephrased the question.

If only she had asked it ten different ways.
If only she had realized the doctor was willing to answer but not with the way she worded that question and others like it.

To learn about a cross examination I did of a medical expert that destroyed his credibility, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer