Go to navigation Go to content

What Happens if You Forget the Answer to an Important Question While Testifying in Your Medical Malpractice Case? Will It Affect How the Jury Decides Your Case?

Well, will it?

The answer is that it may.
Then again, it may not.
Here's why...

We're humans.
We're fallible.
Our memories are not perfect.

Let's say you sued your doctor for malpractice.
You claim you suffered terrible injuries from his carelessness.
You claim your injuries are permanent.

Your doctor disputes each claim you're making.
He refuses to negotiate and wants a jury to decide who's right.
That means you're going to trial.

It will take you two to three years to get there in New York.
That's how long these medical malpractice cases take to get to trial.
Your day finally arrives.

This is a jury trial.
Your lawyer together with the defense lawyer will be directed to pick six members of the community to sit on your jury.
A few extra jurors will be standing by as alternate jurors in case one of the first six cannot continue.

The first witness in your trial is the doctor whom you sued.
His testimony and cross examination lasts an entire day.
You testify the following day.

While being questioned by your own attorney, he asks you a simple question...

"When did you graduate college?"
You blank out.
"Um, I can't believe I don't remember right now. Let me think about it...I'm so nervous...I don't remember," you say shamefully.

Will that type of forgetfulness affect the outcome of your case?
Highly unlikely.
The jury understands you may be nervous.

Besides, the question and the answer are not that significant in your case.
Your lawyer was just trying to get the jury to see that you are highly educated and graduated college.
In fact, if you get stuck with the date, a good trial attorney can help you along by saying "Mrs. Jones, correct me if I'm wrong, but I saw in your records that you graduated college in 1985, is that true?" or something along those lines.

That's a simple forgivable memory lapse.

Let's change the situation now.
Let's say the doctor's attorney is now cross examining you.
His goal is to discredit you.

His goal is to search for the 'truth'; whatever that may be.
His goal is to show that you are being inconsistent.
His goal is to destroy your credibility.

There are many ways to do that.
He's now questioning you.
"Mrs. Jones, what complaints did you make to my client Dr. Gold on the very first visit?" he asks you.

"I don't remember," you say.
"What complaints did you make to my cient on the second visit two weeks later?" he asks quietly.
"I don't remember," you say.

"What complaints did you make to my cient on the third visit one month later?" he asks.
"I'm not sure. I can guess, but you've told me not to guess," you say.
"What complaints did you make to my cient on the fourth visit two months later?" he asks.

"I don't remember right now," you say.
He knows he's on a roll and you likely have significant memory gaps.
He's going to use this to his advantage to show that you are either intentionally trying to hide this information or that you simply developed a case of convenient amnesia.

He'll likely point out that you had no memory lapses when being questioned by your own lawyer.
Surprisingly, you just drew blanks on every single complaint you made to your doctor on each and every visit over the course of months.
How convenient.

Remember, the defense lawyer's goal is to destroy or shed doubt on your credibility.
The jury will judge whether you're sincere when claiming that you don't remember.
With all these repeated "I don't knows" the defense lawyer could try and refresh your memory.

He could do that with testimony from other witnesses.
He could do that with medical records that are in evidence.
He could do that with trial exhibits.

He could do it with audio recordings.
He could do it with videos.
He could try and refresh your memory using virtually anything he can think of.

If he doesn't, then during additional questioning by your own lawyer, known as redirect questioning, your attorney can try and refresh your memory about those things you claim you couldn't remember.

Did you honestly have a brain freeze?
Were you nervous?
Did you forget something that you knew years ago?

Did you remember it when you testified during your pretrial question and answer session known as a deposition?
If you knew it then, either lawyer could open up your transcript and read selected questions and answers to see if that refreshes your memory. If it does, great. If not, there are still other ways to get that previous testimony in front of the jury to evaluate.

To learn more about cross examination drama, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer