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You Sued Your Doctor for Medical Malpractice. You're Getting Sicker by the Day. If You're too Sick to Attend Your Trial, Can Your Case Still Proceed Forward without You Testifying?

The answer is yes, it can.
Let me tell you how.

First, let's set the scene...

You believe your doctor was careless.
You believe his carelessness caused you harm.
Permanent harm and injury.

Your lawyer hired a board certified medical expert who confirms your doctor violated the basic standards of medical care.
This expert confirmed that your doctors' negligence was a cause of your injuries.
He also confirmed that your injuries are permanent.

In response to your lawsuit, your doctor scoffs and claims "I did nothing wrong."
He also claims that "If I did something wrong, so did YOU!"
Then he claims that "If I did something wrong, whatever I did, did NOT cause your injuries."

Then, to make matters even worse, he says "If I did something wrong and my carelessness caused you harm, your injuries really are not as bad as you claim!"
That infuriates you.
Turns out that these are the typical defenses doctors and hospital staff use when defending these medical malpractice cases.

As your lawsuit proceeds forward, you're getting sicker by the day.
Your condition worsens no matter what medical care and treatment you receive.
You're miserable.

You can't work.
You can't enjoy your life.
You have no family life anymore.

The life that you once knew is over.
You can't enjoy your hobbies.

You are no longer independent.
You require home health aides and nurses to help you with your daily activities.
You feel helpless.

You feel like you're a burden to your family and friends.
It's not fair.
This was not how you were supposed to enjoy your time left on this earth.

You're also in pain.
Daily pain.
Pain when standing.

Pain when walking.
Pain going up and down stairs.
You're also grumpy.

You're cranky.
You're short and yelling at your kids and your spouse.
It's not fair to them either.

During your lawsuit, your lawyer tells you that "You need to appear for a pretrial deposition."
"I can't even leave my house," you tell him on the phone.
"Fine. We'll come and do this at your house," he says. "I'm also going to videotape your pretrial questions and answers, so we have it later at trial."

You just don't care.
You agree to whatever your lawyer suggests.
What your lawyer doesn't tell you is the reason why he wants to videotape your pretrial question and answer session.

He wants to preserve your testimony.
"Preserve it for what?" you might ask.
In the event you're unable to attend trial or die before your case reaches trial is the real answer.

Let's step back for a second...

In a civil lawsuit where you are trying to obtain money as a form of compensation for all the harms, losses and damages you suffered because of your doctor's wrongdoing, the attorney for the doctor has the right to question you.

This is usally done in your lawyer's office.
It's done under oath.
You swear to tell the truth.

There's no judge in the room.
Nor is there any jury.
It's just the defense lawyer asking you questions.

Your lawyer is there.
So is a court reporter, a stenographer.
The court reporter records all the questions you are asked and all the answers you give.

Those questions and answers are later transcribed into a booklet called a transcript.
The answers you give is your sworn testimony.
It carries the same exact weight as if you are testifying at trial.

You should know that where your lawyer feels there is a possibility that you will be unable to attend trial because of your worsening condition, he will want to question you himself, as if you were at trial. He will want to ask you many open-ended questions. This will give you the opportunity to explain everything in your own words.

In law, we call this a direct examination.
It's as if you're now at trial and your lawyer calls you to the witness stand to testify.
Your lawyer would ask you open-ended questions first and then when he's finished, the defense lawyer would have a chance to cross-examine you.

In your case, where your condition is worsening and your attorney wants to preserve your testimony to use later, if you're unable to appear at trial down the road, he needs to do a few things first before he can schedule your pretrial deposition.

First, he needs to notify his opponent that he will be conducting a direct examination of you.
He also needs to notify the defense that he intends on hiring a videographer to videotape the questions and answers in order to preserve your testimony. He needs to give the defense a certain amount of time to oppose your desire to videotape your deposition, if he chooses to do so.

All of this goes on behind the scenes and does not directly involve you.
Your lawyer will likely have to obtain a letter from one of your treating doctors to justify why he is requesting this unusual request at this early stage of your litigation.

*In New York, we do not routinely do videotaped depositions. Nor do we do direct examinations by your own attorney during the time that the defense lawyer gets to question you.*

When it's time for your deposition, it's actually going to be done in reverse order and I'll tell you why.
Normally, when you appear to be questioned, the defense attorney will spend hours questioning you to learn what happened and how your injuries have affected you. That can often take all day.

When we notify the defense that we need to preserve your testimony and will be doing a direct examination, the defense attorney will usually go first and ask all the questions he needs to ask. This is a procedural requirement since you've brought the lawsuit and now the attorney for the doctor whom you sued now has the ability to ask you questions.

He'll spend hours asking you questions.
Doesn't matter if it's done in your lawyer's office or your home.

If you need to take a break, you'll take a break.
If you need to stop for lunch, you'll take lunch.
If you need to rest a little, you'll rest.

After the defense lawyer has finished asking all of his questions, then it's time to begin your direct examination.

Your lawyer will start from the beginning and take you through step-by-step the events leading up to the wrongdoing and what happened to you after that.

Remember, this is as if you are testifying at trial.
What you say, even though you're saying it on your living room couch, carries the same exact weight as if you are testifying at trial in the court room.
These are your sworn answers.

All of this will be videotaped for the jury to see later at trial, if you cannot make it to trial.

After your lawyer has finished questioning you, the defense lawyer can ask follow up questions.
He can continue to cross examine you just as if you were at trial.
When both attorneys have finished their questions, you're done.

Your testimony has been recorded and preserved for trial.
When your case comes up for trial, let's say a year down the road, if you're unable to attend, your attorney can pull out the videotape of him questioning you and show it to the jury.

The defense attorney can likewise show portions of it where he cross-examines you.
The jury will be told they are to consider your pre-recorded testimony as if you were in court testifying.

Let's get back to the title of this article.
If you're too sick to attend your trial, can your case still proceed forward?
The answer is yes, it can, provided certain steps are taken to preserve your testimony for that possibility.

By the way, if your testimony is not preserved and you are too sick to be questioned during the pretrial process, can your case still proceed forward? The short answer is yes it can. But now we have to search for other family or friends who can testify about the events that happened to you. Sometimes we will rely only on your doctor's own medical records to show that we are more likely right than wrong that what we are claiming is true. 

To learn more about pretrial depositions in medical malpractice cases, I invite you to watch the video series below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer