In a medical malpractice case each side must appear for a pre-trial deposition also known as a question and answer session under oath.

When I have an opportunity to question the doctor who you are suing, there are certain points that must be made.

It is possible to use the doctor's own testimony to prove our case. However, in order to do so successfully there are certain things that must be asked and answered.

You see, in New York, I am permitted to ask the doctor questions about his medical knowledge and training. I am permitted to inquire about the standards of medical care since the physician is presumed to be an expert in his medical field. In addition, I can and will ask the doctor about his expert medical opinion and conclusions.

Here's a sample of questions that establish the standard of care in a failure to diagnose appendicitis case.

  • Doctor, what is appendicitis?
  • How do you diagnose appendicitis?
  • If a 25 year old complains of right lower quadrant pain what is the differential diagnosis?
  • What symptoms would you expect a 25 year old to have if they had acute appendicitis?
  • What diagnostic tests do you use to evaluate a patient with suspected appendicitis?
  • If acute appendicitis is suspected, how much time do you have before an appendix can rupture?
  • What can happen to the patient if his appendix ruptures before it's timely diagnosed and treated?
  • Would you agree that failure to consider appendicitis in your differential diagnosis in a 25 year old who complains of lower right abdominal pain would be a departure from good practice?
  • Would you agree that failure to perform the following diagnostic test to rule out appendicitis would be a departure from good care?
  • Would you agree that failing to timely diagnose appendicitis could lead to a ruptured appendix?
  • Agree that failing to timely diagnose an acute appendicitis could result in rupture and the need for an open laparotomy?

These are just a sample of questions that can be used in a failure to timely diagnose a ruptured appendix case. They will establish the doctor's basic knowledge of medicine and surgery and also establish standards of care. Then, when we go through the specific facts in your case, the doctor will be required to admit or deny whether he believes he departed from the standards of care.

As you might expect, the doctor will not voluntarily admit that he departed from good care. However, in NY, I am also permitted to ask the doctor hypothetical questions using the facts as we believe them to have occurred as the fact pattern. In the case where our facts are supported at trial with evidence and testimony and the doctor has agreed that if those facts are true then the standards of care may have been violated, that will go a long way toward showing the jury that you are entitled to a verdict in your favor.


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer