Many new clients ask how we prove their medical malpractice case.
They assume, incorrectly, that simply because they suffered an injury that automatically means that something was done wrong.
Importantly, we have to obtain confirmation from a medical expert who has reviewed all of your records that there were departures from good and accepted medical care, and that those departures were substantial factors in causing your injuries.
At trial, we must prove that we are more likely right than wrong that the doctor did not treat you appropriately. We must also show that we are more likely right than wrong that the injuries you suffered are a result of the doctor's improper care.
In order to show that the doctor did not treat you appropriately, we use their own medical records as well as their own testimony.
During the course of your lawsuit, I will have an opportunity to question the doctors you have sued at a question-and-answer session, given under oath. This is more commonly known as a deposition. During the course of this question and answer session I will have an opportunity to ask the doctor questions about how and why he treated you.
If I were to ask the doctor directly whether he did something wrong, he would become defensive and say he did nothing wrong.
If I were to review his medical records with him and ask him whether he'd made mistakes, again he would tell me that he did nothing wrong.
How then can you get a doctor to admit that he did something wrong that led to your injury?
One of the key ways to do that is by asking the right questions at his deposition. It is important to ask the doctor definitions to see whether he has a good fund of medical knowledge. It is also vitally important to find out whether the doctor knows the standards that were in use to treat your condition. By getting the doctor to explain what the standards were for treating a particular condition, I can then establish a baseline to refer back to later on.
The doctor should be able to recite what the standards of care are in a given circumstance.
Then later in the deposition when I go through your records, I can ask the doctor whether that treatment was done in accordance with good and accepted medical practice. If it was not, the doctor will reluctantly have to admit that there were departures from good and accepted medical care.
Here is an example of some questions that will help establish that the doctor departed from good care:
- When a patient comes in with head trauma, would you agree it is good medical practice to clinically examine the patient?
- When the patient complains of feeling drowsy and sluggish, would you agree that is a symptom of head trauma and possibly a subdural hematoma?
- Would you agree that a patient who sustained head trauma in a car accident, the standard of care requires that you obtain a head x-ray and a CT scan?
- Tell me the purpose for why you would want an x-ray and a CT scan.
- Based upon the x-ray and CT scan findings you will then form an opinion about the patient's condition and can then create a treatment plan, correct?
- You agree that a patient with head trauma who is sluggish, sleepy and slurring their words should have a complete neurological examination as well, true?
- You would agree that a failure to perform a neurological examination in this instance would be a departure from good and accepted medical care, true?
- You would also agree that a failure to perform an x-ray and/or CAT scan would also be a departure from good and accepted medical care in this instance correct?
Assuming the case involved a failure to perform a neurological examination and the failure to take imaging tests such as an x-ray and/or CAT scan, what I have done is simply laid the foundation and the groundwork to establish later on, that those things were not done.
Once I have established that they were not done, I will ask the doctor to admit that the failure to perform those tests represent clear departures from good and accepted medical care.
That is how you get a doctor to admit, although reluctantly, that the treatment rendered was not optimal and in fact departed from good medical care.
To learn why you never ask a medical expert "Why?" on cross-examination, I invite you to watch the video below...
