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Your Doctor ADMITTED He Might Have Screwed Up When I Asked Him During His Pretrial Testimony. Does That Mean Your Case is Over and You've Won?

Maybe yes.

Then again, maybe no.

Let me tell you what I mean.

In a medical malpractice case in New York I have an opportunity to question the doctor whom you have sued.

Legally, this is known as a pretrial testimony.

It's known as a deposition.

It's also known as an examination before trial.

This is a question and answer session that takes place in his attorney's office.

The defense attorney is present and sits next to the doctor.

There's a court reporter present to record all of my questions and all of the doctor's answers.

The answers the doctor gives me form the basis of his pretrial testimony.

His pretrial testimony carries the same exact weight as if he is testifying at trial.

The only difference is that there is no judge present.

Nor is there any jury.

You might think that it's impossible to get the doctor to admit he did something wrong.

You might think it's impossible to get your doctor to acknowledge he caused you harm.

You also might think it's not possible to get your physician to admit he violated the basic standard of care.

Well, let me set the record straight.

It is.

It is possible to get your doctor to admit he violated the standard of medical care.

It is possible to get your doctor to acknowledge his carelessness was a cause of your injury.

It's also possible to get him to admit he violated the basic standards of care.

He will not want to admit these things voluntarily.

Nor will he admit them simply if I ask him "Doctor, did you screw up and cause my client injury?"

Nor will he acknowledge any wrongdoing if I ask "Doctor did you commit medical malpractice on your patient?"

Instead, there are specific strategies that will allow me to obtain the answers I need.

Strategies that I use during this pretrial question and answer session.

Strategies, that when done correctly, can establish that the doctor did indeed violate the standard of care causing you harm.

None of those strategies involve tricking the doctor either.

There are no trick questions.

Nor do these strategies involve waterboarding him.

None of these strategies involve physical torture.

Instead, they involve hypothetical questions.

They involve hypothetical scenarios.

I want you to understand that in a deposition, I have the ability to ask many questions about what the doctor did and why.

I need to understand why your doctor did what he did.

I need to understand what his defenses will be.

I also need to understand why he believes he did nothing wrong.

You also need to know that before I ever start a lawsuit in a medical malpractice case in New York, I am required to have your case reviewed by a medical expert. Typically, that involves hiring a board certified doctor in the same specialty as the doctor who treated you.

Only after our medical expert confirms that (1) there was wrongdoing, (2) that the wrongdoing caused you injury and (3) that your injury is significant or permanent are we permitted to file a lawsuit on your behalf.

By this point I will know what your doctor did wrong.

I will know what he should have done.

I will know that if he had done the right thing, you would not have suffered the injuries you did.

Knowing all this information allows me the ability to formulate questions that I need to put to your original doctor.

The one who was careless.

The one who caused you harm.

I then get to ask him these questions during his question and answer session commonly referred to as a deposition.

In New York, your doctor is considered a medical expert.

Because of that, I can ask him leading questions.

Questions that only call for a yes or no answer.

I can ask him questions about his knowledge.

I can ask him about his medical expertise.

I can ask him about his knowledge of the anatomy.

I can ask him what is the standard of good medical care for a patient who presents with the problems you had.

I can and will elicit from the doctor the standard of care.

In his own words.

This is very powerful.

Then, I will go through his treatment of you.

I will review all of the doctor's medical records.

To learn what he did and why.

I will learn what he was thinking.

I will learn his rationale for choosing one treatment over another.

Keep this in mind...

Your doctor disagrees with your claim.

He disputes he did anything wrong.

He disputes anything he did caused or contributed to your injury.

He also disputes how severely injured you are.

If I were to come right out and say "Doctor, isn't it true you screwed up here?" he would get very defensive and immediately deny my claim.

That doesn't do anything to advance my case.

That doesn't do anything to get the information I need to show that we are more likely right than wrong that what we are claiming is true.

Instead, the law allows me to ask hypothetical questions.

Questions which are based in fact.

Questions which we believe are true.

Your doctor doesn't have to agree that the facts in my hypothetical question are true.

In fact, he won't.

That's ok.

I don't need him to agree that the facts that I pose in my hypothetical questions are true.

Ultimately, at trial, it will be up to a jury to decide if the facts that I describe in my hypothetical questions are true.

If they are, then the jury will already have heard the damaging answer the doctor gave during his pretrial testimony.

Here's an example of what I mean...

"Doctor, I'm going to ask you a series of questions that call only for a yes or no answer. If you can answer yes or no, do you promise to answer only yes or no?"

"If I ask a question that only calls for a yes or no question, you understand I am not asking you for ANY explanation?"

"The law allows me to ask you hypothetical questions."

"You need not agree with the facts presented in my hypothetical questions. However, you still must answer the question regardless of whether you agree or disagree with the facts I present. Do you understand?"

"If you are unable to answer my question yes or no, do you promise to tell me you can't answer yes or no?"

"If you can't answer my question yes or no, do you promise not to explain why you can't answer yes or no unless I specifically ask you to do so?"

These are the ground rules that I want the doctor to agree to.

At trial, I will always set these ground rules and ask the doctor to agree to them before launching into my hypothetical questions.

This way, if the doctor tries to wiggle out of answering my question directly, I simply bring him back to the ground rules that he agreed to before I started questioning him.

So now, here's an example a series of hypothetical questions the doctor will have to answer...

"Doctor, I want you to assume that Mrs. Jones came to see you on January 1.

On that visit, she complained of having vaginal bleeding for one week.

Would you agree that when seeing a patient for the first time, it's important to ask them why they are in your office?

Would you agree it's good medical practice to record patient's primary complaint?

Would you agree that on the first patient visit, good medical practice requires you to take a detailed, thorough medical history?

Would you agree that failing to take a detailed, thorough medical history on the first visit would be a violation from the basic standards of medical care?"

Every time I ask the doctor whether it would be a violation from the standard of care for not doing something, he's going to be reluctant to answer my question honestly.

"Doctor, would you agree that who patient presents with vaginal bleeding for one week duration needs to be evaluated?

Would you agree that the nature, duration and type of bleeding would be important for you, as a physician to know when evaluating this problem?

Would you agree that when evaluating a patient's complaint of vaginal bleeding, it is important to know whether they are menopausal or postmenopausal?

Would you agree that knowing the patient's age would be an important factor for you to consider when evaluating vaginal bleeding?

Can we agree that vaginal bleeding in a post-menopausal woman can be a significant finding?

Can we agree that vaginal bleeding can be indicative of a very significant medical condition?

Would you agree that a patient who presents with complaints of vaginal bleeding, good medical practice requires you to perform a physical examination and an internal examination as well?

Can we agree that failing to do an internal examination in light of complaints of vaginal bleeding would be a clear violation from good medical practice?"

"I want you to assume that on January 1, Mrs. Jones complained to you a vaginal bleeding for one week duration.

I also want you to assume that no medical history was obtained.

Assuming those facts to be true, would you agree that failing to obtain a medical history in light of the patient's complaints of vaginal bleeding for one week would be a clear violation of the basic standards of medical care?"

I also want you to assume that on this first visit no physical examination or internal examination was performed.

Assuming that fact to be true, would you agree that it would be a clear violation from the basic standards of medical care to not perform a physical examination and an internal examination?"

Do you begin to see a pattern here?

In this scenario, it is our claim that Mrs. Jones went to her gynecologist with a complaint of vaginal bleeding that lasted for a week.

She claims the doctor merely spoke to her.

Never took a history and never performed a physical examination or an internal examination.

By asking these hypothetical questions, I'm able to get the doctor to recognize and admit that good medical practice requires, at a bare minimum, a detailed history should have been taken as well as a physical examination and an internal examination.

My expert will already explained to me in detail why those were required and why failing to do those basic things were violations from the standard of care, and led to the patient's condition going undiagnosed for an extended period of time.

Just imagine if instead of asking these details hypothetical questions, I came right out and said "Doctor, isn't it true you committed medical malpractice when seeing my client on the first visit?"

That type of question will only generate a 'No' answer and not help me prove my case.

To learn even more about hypothetical questions in a malpractice trial, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer