What is a deposition?
During a medical malpractice lawsuit, I have an opportunity to question the doctors you have sued in a question and answer session known as a deposition. Sometimes lawyers use the phrase “examination before trial.
What that really means is that I have an opportunity to obtain pretrial testimony from the doctor during your litigation. That pretrial question-and-answer session is critical to help me prove that we have a valid case.
Did you know that during these question-and-answer sessions, I have a clear agenda?
It's true.
My goal, when coming to ask a doctor questions about the treatment he rendered to my client is not simply to get him to read his unreadable hand-written notes. That's only a small portion of what I need to do during this question and answer session.
Let me explain...
In a medical malpractice case here in New York, we have to show that we are more likely right than wrong that what we are claiming is true.
What that really means is that I need to be able to show (1) That the doctor or hospital violated the basic standards of medical care. I need to be able to show that (2) The violations of the basic standards of medical care were a cause of your injuries. Then I need to show that (3) Your injuries were significant and/or permanent.
Really good trial attorneys who question doctors who are being sued recognize the importance of establishing what the standards of care were at the time that treatment was rendered.
In New York, I am permitted to ask a doctor questions about what were the standards of care.
That's because the law presumes that this physician is an expert in his or her specialty. Since this doctor is presumed to have specialized knowledge and training in a particular specialty, I have the opportunity and the right to ask the doctor exactly what those standards of care were in a given situation.
I am permitted to quiz the doctor on what would be appropriate care in a given scenario.
Naturally, you do not expect the doctor to voluntarily admit he violated the basic standards of medical care. However, there are different strategies that allow me the ability and opportunity to ask the doctor hypothetical questions that will require the doctor to either agree or disagree that if certain things took place, that would be a violation from the basic standards of medical care.
It's always a fight...
During pretrial testimony, which is often given in the defense lawyer's office with a court stenographer present, getting a doctor to admit that if certain things were done would be a violation from good and accepted medical practice, is often the most contentious part of the day.
However, this happens to be the most critical part of the entire question and answer session, that the doctor gives while under oath.
Young, inexperienced attorneys don't recognize the importance yet of getting a doctor to admit that certain treatment was careless and would be defined as medical malpractice. The same young attorneys view this question-and-answer session merely as “discovery.” They look at it as getting the doctor to discuss what complaints the patient had, what the doctor did and what the doctor was thinking.
While that is always important, the more significant issues are to get the doctor to establish, in his own words, what the standards of care were. Then, using our set of facts, to establish that if certain things were not done, that would represent a deviation from the accepted standards of medical practice.
I am also permitted to ask hypothetical questions during my questioning. In addition, I often treat this question-and-answer session as if I'm cross-examining a doctor at trial.
I have often gotten into heated discussion with defense counsel when I attempt to question a doctor this way.
You should know that when I cross-examine a doctor in a medical malpractice case during pretrial testimony, I am always polite. I'm rarely condescending. I am almost always pleasant. If the defense objects to a certain question I asked, I often will simply rephrase it and ask it in different ways.
Cross examination does not mean angry and yelling questioning.
Cross examination is really a search for the truth. It allows me to hone my skills as a questioner and the ability to control the conversation.
Cross examining a doctor during a deposition is not all that different than at trial. However, one of the key differences is that I will often ask a doctor to explain his answers during his question-and-answer session.
If you ask any really good experienced trial attorney whether it is a good idea to have the opposing doctor explain anything at trial, you will get a universal answer that it should never be done. I agree with that.
At trial, I never want to ask the doctor who we are suing to explain anything to the jury while I am cross-examining him. If I were to do that, it simply opens up a can of worms and I will not be able to get the doctor to stop talking.
Asking the doctor to explain gives him the ability to defend his actions and gain sympathy from the jury.
You see, by the time we have reached trial we will have completed all the discovery on the case. I will know why the doctor treated my client with certain things. I will know his explanations because I will have asked him during the discovery part of the lawsuit.
It is extremely critical that I learn the “Why” during the discovery part of this case.
That will allow me to understand the doctor's defense.
During trial, I will know the answers to questions I am posing to the doctor. I will know them because I will already have asked these questions during pretrial testimony that the doctor gave a year or two earlier when I questioned him.
On my agenda for this question and answer session, I will always ask the doctor to tell me what were the standards of care for this particular scenario.
I will also ask the doctor to explain to me the anatomy and some of the medicine associated with my client's treatment.
Many times when I ask a doctor to give me basic explanations about certain treatments or medications that they routinely use, some are unable to do so. Whether that occurs because of a lack of knowledge or they simply forget during the moment I'm questioning, I cannot say for sure.
However, a basic lack of understanding of the anatomy makes a huge impression when I show that to the jury at trial.
Once the doctor has established what were the standards of care, I then will often ask hypothetical questions.
Those hypothetical questions are based entirely on the facts as we believe them to be true.
“Doctor, I want you to assume that the following facts are true...If the patient had A, B, C and now presents to your office, would you agree it would be appropriate to do X, Y, Z?”
“Yes I would.”
“If a doctor did not do X, Y, Z, would you agree that would be a departure from good and accepted medical practice?”
At this point, the defense attorney will often object and claim that's not what the facts show.
In the olden days, a defense attorney would often tell his client not to answer the question. However, the court rules and requirements have been changed and the defense attorney no longer can say that to his client when I ask a hypothetical question. Instead, the defense attorney can object to my question but then the doctor must answer the question.
There are only two exceptions to that. The first is if I ask a totally off-the-wall inappropriate question such as “Doctor, how often do you beat your wife?” The other question would be if I asked the doctor about a conversation he had with his attorney that would be considered privileged information.
Although the defense truly does not want the doctor to answer my hypothetical question, they have no choice but to object to the question and allow the doctor to answer the question.
This is extremely important since we use this information later at trial.
Here's how...
When I ask hypothetical questions, I do so with the specific knowledge that there will be testimony to support the facts that I use in my hypothetical question. Either there is information in the medical records or my clients will testify about it or some other witnesses will testify about it. I will always have a good-faith basis upon which to ask a hypothetical question.
Looking at it another way, here is the basic formula that really good trial lawyers use to get a doctor to establish his own culpability if certain facts turn out to be true. Remember, at trial my goal is to show to the jury that we are more likely right and wrong. We don't have to show that we are 100% correct, only that we are more likely right than wrong. This is also known legally as the preponderance of evidence.
My goal at trial is to show the jury that the doctor who is being sued has explained what the standards of care were area and if the jury believes our version of the facts as being true, then I will already have established through the doctor's own pretrial testimony that he violated the basic standards of medical care.
Obviously, the defense attorney will do everything possible to show why we are wrong.
The defense attorney will also use his own hypothetical questions with his own medical experts to explain why he believes that his doctor's treatment was appropriate and fully within the standard of care.
It is only after I have questioned the doctor about what were the standards of care and ask hypothetical questions will I begin asking the doctor about the specific facts and treatment that he rendered to my client.
I will also save questions about the doctor's credentials until the very end of this question and answer session.
I know there are many good plaintiff's lawyers who immediately start the deposition by asking the doctor all about their credentials. They want to know where they went to school and where they did their residency training and whether they are board-certified and whether they published anything.
While that information is always important, I find the timing of asking those specific questions are wasted opportunities if asked at the very beginning.
Preparation is the key...
Really good attorneys will have spent a tremendous amount of time preparing for these pretrial question-and-answer sessions. The attorney should have researched and should already know exactly what credentials the doctor has. Merely getting him to confirm and state on the record what his credentials are, in my opinion, is a waste of time if done at the very beginning of the question-and-answer session.
The better practice, in my opinion, is to save this till the very end.
A lawyer who goes into his pretrial testimony session thinking only that his job is to learn the facts of what the doctor did, is doing a disservice to himself and to his client.
If done appropriately, the attorney can set the stage for the rest of the litigation and improve the chances of having a strong case as you proceed to trial. It also helps improve your ability to cross-examine a doctor at trial since you will have done this hundreds and thousands of times over the course of your career.
I have found that the best trial lawyers are ones who have asked hundreds upon thousands and thousands of questions during the pretrial testimony phase.
Like anything else, the more that you do it, the better you get at it.
Like a young child who has never walked before, you would not expect them to run well. Likewise, an attorney will never become a great cross examiner if he has never spent time questioning witnesses during pretrial testimony.
Although lawyers use the phrase “discovery” to learn all the facts that are involved from the doctors and hospital staff who are being sued, the deposition is one of the most critical discovery tools available. Handling a deposition well involves extensive preparation and complete knowledge of the medical records and facts of the case.
A lawyer who prepares for this pretrial testimony must be fully familiar with the entire medical record. He must know what his medical expert believes and must formulate different strategies on how to get the doctor to acknowledge that if the following things were done, that would be a departure from good and accepted medical care.
