"Doctor, I want you to assume the following facts to be true..."

That's how a hypothetical question starts out.
Especially in a medical malpractice case.
I know the doctor won't agree with my version of the facts.

But I have evidence to support our set of facts.
I have my client, the injured patient who has her version of the facts.
I have medical records to support our facts.

I have the patient's spouse and friends who saw her in the hospital.
These facts, along with our expert, back up our version of the events.
If I were simply to ask the doctor you sued "Doctor did you do this?" His answer would reject our claims and then explain why we were wrong.

He may do this anyway, but at least when I ask a hypothetical question, he now HAS TO assume my set of facts are true.

Let's go back to the beginning for a moment...
You sued your doctor.
For medical malpractice.

For causing you harm.
For causing you injury.
Permanent injury.

Your doctor denies all of your claims.
He says he did nothing wrong.
Then he says YOU caused your own injuries.
Then he says that IF he did something wrong, whatever he did, didn't cause you any injury.
Then he says that IF he did something wrong AND he caused you injury, your injuries are NOT THAT BAD.

Those are the typical defenses we see in these malpractice cases.

During the course of your lawsuit, I have a chance to question the doctors you sued.
That question and answer session is known as a deposition.
Lawyers also call it an 'examination before trial'.

This takes place in an attorney's office.
In his conference room.
There's no judge there.

There's no jury there.
Just me, your doctor, his attorney and a court stenographer to record all of my questions and all of the answers given by your doctor. The answers that the doctor gives represents his sworn testimony and carries the same exact weight as if he is testifying at trial.

Let's get back to hypothetical questions now.

I want the doctor to assume that our version of the facts are accurate.

He won't want to do this.
Sometimes he'll argue with me that these are not the facts that he believes to be true.
In that instance, I have to ask him to go along with my question and for the moment, ASSUME THAT THESE FACTS ARE TRUE.

Then I will ask him questions about what treatment is appropriate in light of our facts.
The defense ALWAYS objects to these questions.

That's Ok.
They're allowed to object.
But the doctor is REQUIRED to answer my question.

The doctor is ALWAYS reluctant to answer hypothetical questions because he knows that the answers will bind him later on if and when your case gets to trial.

Why is this important?
When we present our version of the facts to the jury during your trial, IF the jury believes our set of facts, now they will have heard testimony from your doctor that describes the standard of good medical care. Then, listening to what the doctor actually did, the jury can determine whether this doctor's care and treatment was within the standard of care.

Here's an example using a failure to diagnose breast cancer case...


A young woman presents to her ob/gyn with a breast lump.
The gyn appropriately tells her to get a breast sonogram, a mammogram and refers her to a breast surgeon for biopsy.
At the radiology facility, the technician tells the patient that she's too young to have breast cancer and her sonogram looks good. "You don't need to go to a breast surgeon, everything looks fine," she's told.

Needless to say, one year later she is diagnosed with Stage IIIB advanced breast cancer.

When I questioned the radiology technician who performed the breast sonogram, she argued that she NEVER tells patients what the sonogram shows. Instead, she ALWAYS refers them to their doctor to get the results.

Here, the technician denied ever telling the patient what she thought and what she interpreted the sonogram to show. She also denied ever telling the patient that she didn't need to see a breast surgeon for a biopsy. 

Now, I'm going to show you the power of using hypotheticals in a medical malpractice case...

"Mrs. Jones, I want you to assume the following facts to be true...
On January 2, the patient presented to your radiology facility to have a breast sonogram. She was sent to your facility because of a suspicious mass in her left breast. She presented with a prescription from her gynecologist to have a breast sonogram. Now assuming those facts to be true, you'd agree that good medical practice requires that you perform a breast sonogram, correct?"

"I want you to assume that after the sonogram was done, but while the patient was still in the room, you had a conversation with the patient about your observations and interpretation of what the sonogram showed. I want you to assume that you told the patient your thoughts and interpretation of what the sonogram showed.

Would you agree that discussing your interpretation of the breast sonogram would be a violation from the rules, regulations and protocol for your radiology facility?" [She has to say yes here.] "Would you agree that discussing your interpretation of the breast sonogram would be a departure from good and accepted medical care?" [Again, she has to say yes.]

"The reason why is because you are not a physician, correct?"
"You need to wait for a radiologist to read and interpret the images seen on sonogram, correct?"
"Your protocol requires you tell the patient to go back to their gynecologist to get the results. That means the radiologist must interpret your test and send the results to your doctor, right?" [She has to say yes.]

During trial, it's clear we have a dispute.

The radiology tech says she NEVER talked to the patient and NEVER told her what the sonogram showed or gave her advice about what she should or shouldn't do regarding a breast biopsy. My client says she had a very specific conversation with the radiology tech that her sonogram was normal and since she was so young, there was no need for her to get a painful breast biopsy.

If the jury believes the radiology technician, they'll believe her version of the facts.
If however the jury believes my clients' version of the facts, now, the technician has already said, in her own words, that what she did was a violation of the radiology office's rules, regulations and protocol as well as being a significant departure from good and acceptable medical care.

So, going back to the title of this article:
"Doctor, I want you to assume the following facts to be true..." is a great way to get the witness to assume our version of the facts are accurate and in that light, would you agree that appropriate treatment in that instance is to do X, Y and Z?"

Now we just have to hope that the jury believes our set of facts.

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


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer