You sued your doctor.
For medical malpractice.
Here in New York.
You believe he was careless.
You believe his carelessness caused your injury.
You believe your injury is permanent.
Your beliefs are all good and well.
However, you can't start a lawsuit in NY just on your beliefs alone.
This isn't like a car accident case or a trip and fall case where you can start a lawsuit the next day just based on your say-so.
Instead, before we can actually start your lawsuit, we have to confirm you have a valid case first.
Well, how do we do that?
We do that by hiring a qualified medical expert to review all your records.
That means finding a board certified expert in the same specialty as the doctor who caused you harm.
That means sending him all your medical records.
His goal is to determine whether the treatment you received was appropriate or violated the basic standards of medical care.
In a medical malpractice case in New York, we are required to have a medical expert confirm
- There was wrong doing,
- The wrongdoing caused you injury and
- Your injury is significant or permanent.
Only after our medical expert confirms each one of those elements are we permitted to file a lawsuit on your behalf.
If any one of those elements is missing, then we cannot start a case on your behalf.
Once we get confirmation by a medical expert that you have a valid case, your lawsuit will take anywhere from 2-3 years to get to trial.
The 'discovery process' alone can take one to two years.
That's the pretrial litigation that goes on before your case ever gets to trial.
Then, your case will sit on the trial calendar waiting to be called up for trial.
In your lawsuit we claim that your doctor violated the basic standards of medical care.
At trial, we are required to have our medical expert testify.
Our expert must explain to the jury what the standards of care were for this situation.
Our expert must explain how your doctor violated those standards of care.
He must also explain how your injuries would not have happened or would have been different if your doctor treated you appropriately.
I will have our medical expert talking about the standard of care.
But, did you know that I will also have your doctor, the one you have sued, also talking about the standard of care?
Yes, you read that correctly.
The doctor whom you sued must tell the jury what the standard of care was for your particular problem.
You might think that's awkward.
Why would your doctor voluntarily tell me what the standard of care was?
It's because he's considered a medical expert.
Because the law views him as an expert, I'm permitted to ask him his 'expert' opinions.
Even if he doesn't like it.
Even if he doesn't agree with me or my questions.
Let's to back a second.
You claim your doctor was careless.
Your doctor says he wasn't.
You claim his carelessness caused you harm.
Your doctor disagress and says that even if he was careless, his wrongdoing didn't cause you harm.
You also claim your injuries are permanent.
Your doctor says your injuries aren't that bad.
Clearly, there are signficant disputes here.
You almost expect your doctor and his attorney to argue that if you say it's day, they say it's night.
If you say the sky is blue, they argue the sky is orange.
Let's get back to the standard of care here.
One way the jury will know what the standard of care was is to have your doctor explain what the standard of care was.
Yes, you again read that correctly.
I'm going to use your doctor, the one you have sued, to explain to the jury what the standard of care was.
I get to ask your doctor these types of questions during the pretrial process.
You see, I get to question your doctor in a pretrial question and answer session known as a deposition.
This pretrial testimony is given under oath and takes place in the doctor's attorneys' office.
The questions that I ask and the answers the doctor gives are recorded by a court stenographer.
That forms the basis for the doctor's pretrial testimony.
That pretrial testimony carries the same exact weight as if he were testifying at trial.
In addition to asking your doctor what the standards of care were, I also have the opportunity to ask him if he violated those exact standards of care.
Now, do you really think your doctor will voluntarily admit to committing malpractice when treating you?
Of course not.
Imagine if I were to come right out and ask "Hey Dr. Jones, did you screw up and commit medical malpractice on my client?"
His answer will be "Of course not!"
That doesn't accomplish anything.
However, there is a powerful strategy, that when used correctly, not only gets the doctor to ADMIT he committed malpractice but explain why.
When that strategy is used correctly, it can make or break a case like this.
This strategy is used by really smart trial lawyers during your doctor's pretrial deposition.
This strategy works.
I've used it.
Other smart lawyers have used it.
It's devastating when used correctly.
Let me show you what I mean...
Since your doctor is considered to be a medical expert, I am permitted to ask him short, leading questions.
I don't have to ask him open ended questions that allow him to explain anything.
During his deposition, I will ask both types of questions.
However, when I want the doctor to explain the standard of care, I will have him explain.
"Doctor what does the standard of care require when a patient presents with a complaint of a breast lump?"
"What does good medical practice require you to do after the patient shows you where she had her breast lump?"
"You've told me that good practice requires you to palpate the breast, correct?"
"Good medical practice requires you to do a physical examination, right?"
I will now ask your doctor to take me through what he believes the standard of care was for your problem.
Remember, I don't just come out and say "Hey Doctor, isn't it true you were negligent and failed to detect this patient's breast cancer?"
That question will demand he say "Of course not!"
The law in New York also allows me to ask your doctor hypothetical questions.
Because the facts are disputed.
I am permitted to ask your doctor his opinion if our facts are believed to be true.
Clearly he doesn't agree with our set of facts.
But the law allows me to ask him to assume that our set of facts are true.
The law also allows me to ask him his medical opinion that if our facts are true, would he agree that not doing A, B or C would be a violation from the standard of good medical care?
Your doctor is required to answer these hypothetical questions even though he does not want to.
He knows it's coming.
His attorney has prepared him for this.
I get to ask him a series of hypothetical questions.
I get to ask him to assume that our version of the facts are true.
Even though he disagrees with our facts, he must still answer my questions.
My questions must be based on fact.
I must have some evidence to support the facts in my questions.
It's not something I can simply make up and ask him to assume it's true.
You believe that certain events occurred and that your doctor failed to do what he should have done.
Your doctor disputes some of those facts and also disputes your claim that what he did was improper.
There are clear factual disputes here.
That's why the jury is called in to decide whether we are more likely right than wrong that what we are claiming is true.
The jury must decide who they believe.
Now, here's a series of hypothetical questions your doctor must answer...
"Doctor, I want you to assume that the following facts are true...
On January 1 Mrs. Jones came into your office for her first visit. On that initial visit she complained of having a lump in her breast. Would you agree good medical practice requires that you take a detailed, thorough medical history?"
The doctor has to say yes.
That is good medical care.
One of our claims is that your doctor failed to take a detailed medical history.
Had he done so, he would have seen your mother had a history of breast cancer.
My expert tells me that is significant when evaluating your breast lump.
"Doctor, would you agree that when a patient complains of a breast lump, good practice requires you to perform a physical examination?"
"You must examine the lump, correct?"
"You must examine the breast, correct?"
"That would be good medical practice, correct?"
"Would you agree that a doctor who fails to examine the patient's lump and breast after the patient complained of a lump, would be a violation from the basic standard of medical care?"
"Doctor, would you agree that when a patient complains of a breast lump, good medical practice requires that you examine not just the breast with the lump in it, but also the opposite breast?"
"I want you to assume that after my client complained of her breast lump, you only examined that one breast and never examined her other breast."
"Assuming that fact to be true, would you agree that would be a clear violation of the basic standards of medical care?"
The doctor has to answer this question.
He clearly disputes our version of these facts and that's understandable.
You might be asking why I'd ask the doctor to assume all these facts as true.
The answer is simple.
At trial, I will be asking the doctor these same questions.
In all likelihood, he will continue to disagree and will continue to dispute our facts and our conclusions that what he did was improper.
At the end of our trial, if your jury determines that our set of facts are true, then the doctor has, in his own words, confirmed that his treatment violated the basic standards of good medical care.
This is why the best trial attorneys in New York spend a considerable amount of time and energy preparing for your doctor's pretrial question and answer session.
That pretrial deposition is not simply to record what your doctor did and why.
Instead, it sets the groundwork for actually showing that you're entitled to a verdict in your favor even though your trial is a year or two away.
In addition to using your doctor's own words to explain what the standard of care was, I will also bring in our medical experts to testify.
Those experts will also be explaining to the jury what the standard of care was and how your doctor didn't do what he was supposed to do.
They will also explain how your injuries were caused by your doctors' carelessness.
Let's get back for a moment to a few more hypothetical questions...
"Doctor, once you have identified a breast lump, would you agree good medical practice requires you to refer the patient out to a breast surgeon?"
"Would you agree that when you discover a patient has a breast lump, good medical practice requires the patient have an ultrasound, a breast mammogram and a referral to a breast surgeon?"
He has to say yes since that is the standard of care.
"Would you agree that if a physician failed to send the patient out for mammogram, an ultrasound and referral to breast surgeon would be a clear violation of the basic standards of medical care?"
He has to answer yes.
"Doctor, I want you to assume that at the end of my client's first visit to your office you did not refer her to a breast specialist, nor refer her out for a breast mammogram, nor send her for a breast ultrasound. Assuming those facts to be true, would you agree those failures to refer this patient out represent violations from the standard of basic medical care?"
What do you think he'll say in response?
To learn more about the standard of care in a medical malpractice case here in New York, I invite you to watch the quick video below...