You know the phrase "Anything you say can and will be used against you?"

Well, that phrase applies in a criminal matter when the police arrest you.

It's part of your Miranda warnings.

Well, the question I posed in the headline has nothing to do with a criminal case.

It has to do with a medical malpractice case here in New York.

You should know that when an injured patient brings a lawsuit against a doctor or hospital staff, each attorney has an opportunity to question the other side's witnesses.

This is all done before the case ever gets to trial 2-3 years later.

This pretrial questioning is known as a deposition.

Lawyers also call it an examination before trial.

It takes place in the attorney's conference room.

There is no judge present.

There is no jury present.

Instead, all of the attorneys involved are there.

The person being questioned and his attorney are there.

A court stenographer is there to record all of the questions and all of the answers given by the witness.

It's an informal setting.

Yet when the witness answers the attorney's questions, those answers carry the same exact weight as if the witness is testifying in Court at trial.

That should give you a strong hint at the answer to the question I raised in the headline.

You might also be wondering how I can ever get a doctor to admit he did something wrong, especially when I'm questioning him during this pretrial question and answer session.

Well, it's not easy, but there are strategies for doing just that.

And no, it doesn't involve asking him trick questions.

Nobody ever wants to admit, especially in a legal proceeding, that they did something wrong that caused a patient injury.

If the doctor were to simply say "Yes, you're right, I screwed up and caused this patient harm," do you think we'd just pack up and go home after that? Uh, no.

Here's one effective strategy that gets a doctor to tell me if his treatment was appropriate for this patient.

"Doctor, in a patient who presents to your office with the following complaints, would you agree it's good medical practice to do a full physical exam?

Would you agree it's good medical practice to take detailed thorough notes?

What does the standard of care require you to do when a patient presents to your office with the following complaints?"

You see, the law looks at the doctor as an expert.

Technically, he is.

I don't need to get into his level of expertise yet, but since the law considers him an expert, I am permitted to do two things that I ordinarily would not be able to do.

The first is ask him leading questions.

The second is ask him expert opinion questions.

Leading questions just require him to answer yes, no, I don't know or I can't answer that question.

Expert opinion questions are phrased in the form of hypothetical questions.

I am permitted to ask the doctor to assume certain facts are true.

If a jury ultimately determines that we are more likely right than wrong that our set of facts are true, then the doctor's testimony, given during his pretrial deposition, will form a very strong argument that his treatment did not conform to good medical practice.

"Doctor, I want you to assume that Mrs. Jones complained of A, B and C. Would you agree that she needed a full physical exam on that first office visit? Yes.

I want you to assume that she returned to your office three weeks later complaining of A, B and C again. Would you agree that good medical practice required you to formulate a differential diagnosis in an effort to help you evaluate what condition she was suffering from? Yes.

Would you agree doctor that the earlier a patient is diagnosed, the earlier treatment can begin? Yes.

Would you agree that failing to timely diagnose a condition can lead to a delay in treatment? Yes.

Would you agree that in many instances, delay in treatment can be detrimental to the patient's health and wellbeing? Yes.

This would be true for cancer diagnoses, correct? Yes.

Doctor, a differential diagnosis is a listing of the different possible conditions the patient might be suffering from, right? Yes.

It's often a listing in order of most likely to least likely, correct? Yes.

Once you formulate a differential diagnosis, either in your mind or one that you write down in your notes, good medical practice requires you to now perform certain tests to either rule in or rule out each condition, correct?

Let's recap doctor...

The patient has a problem.

She comes to your office.

You ask her about her problem.

She tells you.

You now begin to think about the different medical conditions those complaints might represent.

You then begin to run tests to see if her problem is the first one on your list of possible diagnoses.

"If your tests reveal she does not have the first condition you thought, would you agree that good medical practice requires you to now run tests to rule in or rule out the second most likely condition on your list? Yes.

Would you agree that a physician who fails to run those additional tests would be a departure from good medical practice? (The doctor reluctantly answers) Yes.

Doctor, can you show me where in your notes you performed ANY diagnostic tests to rule in or rule out the second condition on your list? Uh, uh, I don't have any..."

Now, at trial, I will ask the doctor the same series of questions.

I do that in order to show the jury the sequence of events of what the doctor did or did not do.

The jury has never seen or read the transcript of the doctor's pretrial testimony.

I expect the same exact answers from the doctor at trial as when I asked him a year earlier in his attorney's office.

If I get a different response than the one the doctor gave in his lawyer's office, I can use his prior testimony to contradict what he's just told the jury. That can be very powerful.

Alternatively, I can read a portion of the doctor's questions and answers that he gave during pretrial testimony during the trial itself.

However, nothing is more powerful than confronting the doctor with his own words, admitting wrongdoing IF certain facts were true.

To learn more, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer