You sued your doctor.

For medical malpractice.

For causing you harm.

Permanent harm.

It was all his fault.

Not yours.

You were asleep.

Under general anesthesia.

Having surgery.

Surgery your doctor recommended.

He was careless.

He didn't do what he was supposed to do.

You woke up in the intensive care unit.

You couldn't speak.

There were tubes down your throat.

You were in pain.

Agonizing pain.

Tubes coming out of every part of your body.

Monitors beeping.

Dim lighting.

Everyone was talking quietly when they came to see you.

You didn't know why.

Until later.

You were told there was a mistake.

During surgery.

Now, the doctors are trying to get you better.

It will take months.

Just to get out of the hospital.

You can't eat.

You can't speak.

You can't get up from your bed.

You're frustrated.

You need a nurse to clean you many times a day.

You've got a bag attached to your belly that smells.

It smells like poop.

It is poop.

It's disgusting.

Your nurse comes in to change it at least six times a day.

It looks gross.

Turns out your surgeon was careless.

Turns out your surgeon is a cocky bastard.

He refuses to acknowledge he did anything wrong.

He refuses to apologize.

He says this was a 'risk' of your surgery.

Funny, but he never said anything about this risks when telling you that you should have surgery.

He's blaming everyone else except himself.

Well, you know where this is going, right?

You're unable to work.

Your family life has been disrupted.

You can't do ANYTHING!

You've been stuck in the hospital for months now.

Your insurance company wants to drop you since your bill is anticipated to be over half a million dollars.

You will need constant nursing care.

You won't be able to do those activities you used to love doing with your family.

You have no choice.

You sue your doctor.

To obtain money as a form of compensation.

For his carelessness.

For causing you these injuries.

For ruining your life.

You find the best trial attorney in New York you can find.

Your lawyer had your records reviewed by top-notch medical experts.

Each one confirmed that you had a valid case.

Your lawyer tells you that since you have a valid case confirmed by medical experts, he's starting your lawsuit.

You hear from a friend that your doctor is outraged that you sued him.

You hear that he's going to fight you tooth and nail.

Months after you start your lawsuit, you appear for a question and answer session at your attorney's office.

This is where the your doctor's attorney gets to ask you questions.

Questions about what happened to you.

Questions about how your injuries have affected you.

Questions about your conversations with your doctor.

It's pretrial testimony.

It's called a deposition.

It's also called an examination before trial.

There's no judge present during this questioning.

There's no jury present either.

But there is a court stenographer there to record all of the questions you are asked and all of the answers you give.

Believe it or not, the answers you give during this question and answer session carry the same exact weight as if you are testifying at trial in front of a judge and jury.

A few months later, it's time for your lawyer to question the doctor whom you sued.

Your lawyer tells you not to come.

It's too upsetting.

He says you'll get angry.

You'll be frustrated.

You'll want to scream at him.

He tells you to stay home.

He'll let you know how it went.

He'll give you the details after it's over.

Here's what happens.

Your attorney walks into the defense lawyer's conference room.

Your doctor is sitting at the table.

His lawyer is sitting next to him.

The court reporter is at the head of the table.

She's ready to start recording all of your lawyers' questions and all of your doctors' answers.

Your doctor has a scowl on his face.

His arms are folded defiantly.

He looks like he wants a fight.

He looks like a nasty SOB.

He looks irritated.

Your lawyer is ready.

He's ready for a fight.

He knows this will be a challenging deposition.

Not just for getting the doctor to admit he was careless but for getting him to admit his carelessness caused your harm.

The questioning starts.

Very simple basic questions.

The doctor is very terse.

He's just answering only what he has to.

He's only answering 'yes' and 'no'.

No explanations yet.

"Doctor, did you perforate this patient's bowel during her surgery?"
"Yes, but this was a risk of the surgery."
"Doctor, did I ask you about risks?"
"Then why did you tell me about risks if I only asked you a simple yes or no question?"
"I wanted you to understand what happened here."

"Doctor, is it your testimony that perforating this patient's bowel during surgery was a known risk to you?"
"If true, would you agree it's important to disclose that risk to the patient BEFORE she has the surgery?"
"That's so the patient can make an educated decision about whether to proceed with the surgery, correct?"
"That means good medical practice requires you to have a conversation with the patient about the risks, benefits and alternatives to the surgery, correct?"

"You would agree that a physician who fails to discuss the risks, benefits and alternatives of having this surgery would be a violation from the basic standards of medical care, right?"

The doctor doesn't answer.

"Well, doctor? What's your answer?"
"I refuse to answer the question!" he says defiantly.

Here we go...

"Doctor, you are required to answer the question..." your lawyer says.
"Screw you. I'm not answering it. Ask your next question counselor," the doctor demands.
"Sorry, that's not how this works. That's not how any of this works," your attorney replies.

"Doctor, would you agree that failing to discuss the risks, benefits and alternatives to this surgery would be a departure from good medical care?" your lawyer asks in a slightly different way.
"Are you deaf? I told you I'm not answering your question!" your doctor screams out.

This nonsense persists for ten minutes.

Even the doctor's lawyer tells the doctor he must answer this question.

The doctor blows him off.

The doctor starts yelling at his own attorney.

"Don't you freakin' tell me what I have to do. I did nothing wrong!" he yells at his lawyer with the stenographer and your attorney looking on.

This appears to be a stalemate.

Your lawyer has many more questions to ask.

Your doctor, the one you sued, is refusing to answer key questions about good medical practice.

What happens next?

Your lawyer tells the defense lawyer that if your doctor refuses to answer questions, he'll ask the judge to fine and sanction the doctor for obstructing this pretrial question and answer session. He'll tell him that he'll ask the judge to bring the doctor back for another session that takes up even more time from his busy surgery schedule.

These are mild threats.

The defense lawyer understands them.

He's between a rock and a hard place.

He knows his client has to answer these questions.

They're appropriate questions.

The questions are properly worded.

They're phrased correctly.

There's no objection from the defense lawyer to the questions themselves.

At the same time, the defense attorney has to show his client he's not caving in and needs to show strength by standing up to your lawyer.

The problem is that the defense lawyer knows there are repurcussions for doing this.

There are consequences.

They are not pretty.

In the worst case scenario, the judge, at a later time, can strike the doctor's answer.

What does that mean?

It means you'll get an automatic win.

It means that the Yankees showed up to play the Mets and the Mets left the stadium.

The Yankees got an automatic win.

Sure they 'won' but only by default.

Same thing here.

The judge can decide that your doctors' antics are so outrageous that he's screwed around with the justice system one time too many.

The judge can decide that's not how it's done.

You don't obstruct an attorney trying to question you.

You don't do it repeatedly.

You don't curse at the opposing lawyer.

Nor do you refuse to answer questions posed to you by the other side.

That's just not how any of this works.

Do it repeatedly and with an attitude and you risk having the judge throw out their defenses, giving you an automatic win.

It means you'll only have to try your case on damages.

It means you can now go to trial and a jury will only have to decide how much money to give you.

The jury will no longer have to decide if your doctor was careless.

Or if his carelessness caused you harm.

Once the judge determines that your doctor's conduct during his pretrial deposition was so outrageous, he can decide that you are automatically entitled to a verdict in your favor. Not because of the actual merits, but on a legal technicality.

That's the worst case scenario for the doctor.

That can happen.

Then again, the judge may decide to give the doctor another chance.

A chance to redeem himself.

"I order the doctor to return for another deposition to be held in one month. If the same conduct occurs, then I will revisit the plaintiff's request (that's the injured patient's request) to sanction the doctor and to strike his answer."

Does this really happen?

Yes, it does.

Most of the time when it happens, the defense lawyer strong arms his client and reminds him this could happen.

The doctor then reluctantly returns to the conference room to answer your attorney's questions.

You see, an attorney going into this pretrial question and answer session has an agenda.

A very important agenda.

If questioning is done properly during this deposition, your lawyer can prove your case before ever getting to trial.

If done properly, your lawyer can lay the groundwork that establishes that your doctor was careless.

That his carelessness caused you injury.

And that your injury is permanent.

But the ONLY way to do that is if your attorney gets ANSWERS to the questions your lawyer asks the doctor whom you sued.

Now, just because this testimony is being recorded and transcribed, don't think for a minute that the doctor you sued is going to roll over, throw his hands in the air and simply admit he screwed up. He's not.

But there are key strategies and tactics an experienced attorney can and must use to lock the doctor into his testimony now.

Failure to do that means you're going to trial without definitive answers about the standard of care.

Without the doctor admitting the did something wrong.

What am I getting at here?

I'll share with you a trial lawyer's secret.

You see, during this pretrial deposition, I am permitted to ask the doctor hypothetical questions.

I know if I were to ask your doctor, "Doctor, did you screw up?" that he'd automatically say "Of course not!"

That question gets me nowhere.

Instead, there are certain facts that we know to be true.

Those facts are based on the medical records.

Those facts are based on my client testifying months earlier during her pretrial question and answer session.

Those facts are favorable to us and our case.

The doctor however doesn't believe our set of facts.

The doctor has his 'own' set of facts.

Facts that HE believes to be true.

Clearly, those facts are different than ours.

What if I ask the doctor to stop fighting me for a moment and consider the possibility that one or more of those facts that WE believe to be true are really true?

In ordinary conversation, that might get the doctor to stop and think for a moment.

"Maybe what you're saying is true, but..." he might say.

During a deposition, part of my agenda is getting your doctor to actually tell me what the standard of care was for the exact treatment you needed.

"Doctor, would you agree that good practice for this diagnosis requires the following treatment..."
"Great. Now tell me why."

I want the doctor to detail exactly what treatment is appropriate for this situation.

He's basically going to regurgitate the exact treatment that he provided to you and that's fine.

But now, I'm going to ask him to assume a few things.

"Doctor, I want you to assume that a doctor, such as yourself, did not do X, Y and Z, which you told me was the appropriate treatment for this condition. In that specific instance, would you agree that failing to do X, Y and Z would be a violation from the basic standards of medical care?"

Notice what I did here?

Your doctor believes he did nothing wrong.

If I were to simply ask "Doctor, your record shows you didn't do X, Y and Z. Didn't you screw up because you didn't do those things?" is a poorly worded question. The doctor will get defensive and tell me to go screw myself, or some other choice words like that.

Instead, I'm going to ask him hypothetical questions.

He's REQUIRED to answer my hypothetical questions.

Questions that use facts that we KNOW to be true.

Questions that have facts that the doctor does NOT agree with.

"Doctor, I'm going to ask you a series of hypothetical questions. I want you to assume that these facts are true.
I want you to assume that Mrs. Jones presented to your office on January 1.
On that date she complained of a lump in her right breast at the 12 o'clock position.
Would you agree, based upon those facts, that good medical practice require you obtain a detailed medical history?"


"Would you agree, based upon those facts, that good medical practice requires you to perform a breast exam?"
"Would you agree that a physician who failed to perform a breast exam, in light of those specific facts would be a departure from good medical care?"

"I REFUSE TO ANSWER THAT QUESTION!" the doctor screams out.

Remember, the doctor is getting defensive because he knows what's coming.

He knows that if he answers "Yes," that answer can and will be used against him at trial.

He also knows that he has to answer this hypothetical question.

In this fact pattern we argue that the doctor failed to do a breast exam on the patient after she complained of a breast lump.

The doctor says he did a breast exam.

The patient says he did NOT do a breast exam on this visit where she complained of a breast lump for the first time.

The doctor's note do NOT indicate he did a breast exam.

Nor do they indicate what his finding were if he had done a breast exam.

Now, let's get back to my hypothetical questions...

"Doctor would you agree that failing to do a breast exam on a patient who complained of a breast lump would be a violation from good medical care?"

The doctor HAS TO SAY "YES."

Otherwise he looks foolish.

My hypothetical questions are general in nature right now.

I'm not yet linking them to your doctor's actual treatment.

But your doctor knows that's what's coming.

That's why he's playing games and trying his best NOT to answer my questions.

He can play whatever games he wants.

The bottom line is that I will get him to answer my hypothetical questions.

If not today, then another day.

And another day.

And the judge will not appreciate his antics.

"Doctor, I want you to assume that on January 5, the patient returned to your office claiming that her breast lump got bigger."

Your doctor denies your breast lump got bigger.

But I'm asking him to assume our fact that the patient complained it got bigger to be true.

"Assuming this fact to be true, would you agree that good medical practice required that she see a breast surgeon immediately for further evaluation?"

He again has to say "Yes." 

If he doesn't, he loses all credibility.

He may also try to fight me on the those specific facts I'm asking him to assume are true.

"I don't believe your set of facts are true!" he argues in response to one of my questions.
"I understand that doctor. For purposes of this deposition, I'm asking you to assume that these facts are true. You can agree with them or not, but my question requires that you assume they're true. In that instance, would you agree that failing to do A, B and C would be a clear violation from the basic standards of medical care?"

Again, this is all part of my agenda.

Why would I place so much importance on these hypothetical questions?


We know what our facts are.

The doctor disputes our set of facts.

At trial, if the jury believes our facts, then the doctor has admitted, in his own words that failing to do A, B and C is a departure from good care. Basically, the doctor has proven our case for us, if the jury believes our facts as true.

That's why it's crucial that an attorney spend enough time and energy creating an agenda to question your doctor during his pretrial testimony.

If done correctly, it can make or break your case.

If done correctly, it can force your case to settle before trial.

An experienced attorney who encounters a doctor who refuses to answer his questions during this pretrial testimony has a number of options. Ultimately, the doctor will have to answer his questions, regardless of how much he doesn't want to answer.

I hope this article has opened your eyes to what happens when and if a doctor refuses to answer your lawyer's questions during pretrial questioning.

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




Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer