After 28 years of handling medical malpractice cases, I can speak from a position of experience.

After 28 years of questioning doctors during their pretrial testimony, I have an idea of what works and what doesn't.

After taking thousands of depositions during my career I can tell you that there is one question that should be the most important question to ask.

When a civil lawsuit is started the defense will have an opportunity to question you during the discovery phase of your lawsuit.

It's known as pretrial tesimony.

Legally, it's known as a deposition.

It's also known as an examination before trial.

The questions that are asked and the answers that you give form the basis for your pretrial testimony.

The only difference is that there is no judge present.

There is no jury present.

Instead, this question and answer session takes place in your lawyer's office.

Usually in his conference room.

Your attorney will be there sitting next to you.

The defense lawyer will be there to question you.

A court stenographer will be there to record all of the questions being asked and all of your answers.

Those questions and answers get put into the form of a booklet known as a transcript.

Your deposition transcript can be used in many ways.

The defense attorney can use it to cross examine you.

He can use it to show there are contradictions between what you've said at trial and what you said a year earlier when he questioned you in your lawyer's office.

In a medical malpractice case I have an opportunity to question your doctor whom you have sued in this case.

This takes place in the defense lawyer's office.

Again, there's no judge present.

There's no jury present.

Just a court reporter to record all of my questions and your doctor's answers.

During the course of my career, I have had the opportunity to encounter some amazing defense lawyers.

I have had the opportunity to observe some lawyers who are merely good at what they do.

Some are ok.

Some are less than ok.

Some are just awful.

Let me share with you what an attorney typically asks a doctor in a medical malpractice case and then show you exactly what I do and how different it is.

Most attorneys who question a doctor start off by asking about his credentials.

"Doctor, where did you go to college?

Where did you go to medical school?

Where did you do your residency?

Where are you licensed to practice?

Are you board certified?

In what field?"

These questions are fine and should be asked.

But not as the first series of questions.

Why not?

The doctor expects it.

The doctor knows this.

There's nothing unusual or strange about having an attorney asking your doctor about his credentials.

In fact, your attorney should know all of your doctor's credentials before he ever steps foot into the defense attorney's conference room to question the doctor whom you have sued.

That's part of the preparation for this deposition.

I want to know as much as I can about this doctor before I ever question him.

I want to know as much medicine as this doctor on this very limited topic when I question him.

You see, before I ever walk into the defense lawyer's office to question your doctor during his pretrial question and answer session, the defense lawyer will have prepared your doctor for what he can expect.

The defense lawyer will go through the different types of questions I am likely to ask him.

There's nothing wrong with this.

Each side does it.

Each side prepares their witnesses.

No, it's not putting words in the witness' mouth.

No, it's not telling a witness how to answer.

Instead, it gives the doctor an understanding of what will be covered and how the questions are likely to be worded.

Getting back to what most attorneys do when questioning a doctor at his deposition...

"Doctor, have you authored any textbooks?

Have you authored any peer-reviewed journals?

Have you written any articles on this topic?

Have you presented your material at any national conference of physicians?

Do you belong to any medical organizations as an officer, trustee or anything beyond an ordinary member?"

Again, this goes to the doctor's credentials and his professional activities.

This stuff is BORING.

Yes, these questions need to be asked, but not at the beginning.

I ask them at the very end.

Many hours after we've started.

It's the last thing I cover.

"Doctor, what hospitals are you affiliated with?

What is your academic title at each of these hospitals?

What committees do you sit on in each of these hospitals?

Has your license to practice medicine ever been suspended?

Has your license to practice medicine in any state ever been revoked?"

Again, these are all relevant and necessary questions, but NOT for the first series of questions.

These questions are all expected.

The doctor will be ready for these questions.

The doctor knows how to answer these questions readily and without difficulty.

Here's something you never want to ask in your first series of questions...

I never want to ask what the doctor did for this patient, as my first series of questions.

I never want to ask why the doctor did what he did, as my first series of questions.

That's for later.

Nor do I want to put him on the defensive immediately.

Imagine I ask the doctor this question as my very first question...

"Doctor, isn't it true you screwed up here?"

The only response you can expect is the doctor crossing his arms and defiantly saying "Of course I didn't screw up!"

The doctor will be hesitant to explain anything after that.

Let's say this is a case where you believe your doctor was careless.

You believe his carelessness caused you harm.

You also believe your injuries are permanent.

All  of those things have been confirmed by a board-certified medical expert who has reviewed your records.

Your case involves a brain tumor.

A space-occupying tumor.

Not cancerous, not malignant.


But it was serious as it was growing and compressing part of your brain.

The tumor was located on the right side of your brain.

For some inexplicable reason, your surgeon operated on the left side of your brain.

You suffered permanent brain damage when Dr. Clumsy Hands removed what he thought was the tumor on the left side of your brain.

Turns out you never had a tumor on the left side of your brain.

You never had any problem on the left side of your brain.

Here's the first question I would ask the doctor during his pretrial deposition...

"Doctor, tell me why you operated on the wrong side of my client's brain."

That's the question.

That's the key question for the entire case.

I know the doctor will not have a good answer for this.

I know that no matter what he says, it will be a poor excuse for why he did what he did.

The reason I ask this question is because the doctor is not expecting this question.

At least not this early in my questioning.

I will likely get an answer that will help me prove our case.

I will likely get an answer that will help me show that we are more likely right than wrong that this surgeon was careless.

I have used this strategy successfully for many years.

The doctors never expect this question as my very first question.

Unless the defense attorney has worked on a case with me before, he doesn't know what's coming.

You should know that since many attorneys get blindsided by this question, they often go ballistic when they hear it.


I then calmly tell the attorney that there is no requirement in the Civil Practice Law & Rules (CPLR) that govern discovery and depositions in New York that says what I can and can't ask as my first series of questions in a doctor's deposition.

If they still argue with me, I ask "Can you show me where in the CPLR it says I have to ask a foundation question first?"

If they still persist in wanting me to ask foundation questions, I have no problem with that.

"Doctor, on January 1 you were planning to operate on my client, correct?"

"You were going to perform a craniotomy on the right side of her brain, correct?"

"When you met with the patient to discuss treatment options, you recommended having surgery to remove this tumor, right?"

"This tumor was located on the right side of her brain, correct?"

"A tumor which was confirmed by MRI and CAT scan, correct?"

"A tumor which was identified on radiological testing to be on the right side of her brain, correct?"

"You do know the difference between right and left, don't you?"

"Show me your left hand doctor."

"Show me your right hand."

(This is sure to outrage both the doctor and his attorney.)

"You did learn in medical school and in your residency training that when a tumor is on the right side of the brain and your intention is to remove that tumor, you should only be operating on the right side of the brain, correct?"

"On January 1 you operated on my client, right?"

"You performed surgery at the Clumsy Hands Hospital, right?"

"Your goal was to operate on the right side of her brain to remove that space occupying tumor, correct?"

"Explain to me doctor how you operated on the wrong side of her brain..."

Those series of questions are nothing more than foundational questions to 'set the stage'.

It lets everyone know who was doing the surgery.

What surgery was planned.

What was supposed to be done and what was actually done.

Either way, I'm going to establish that this doctor was negligent.

I'm going to establish that he violated the basic standards of medical care causing this patient harm.

Let me share another example of this strategy in gynecology case I handled a number of years ago...

Here's the scene...

The patient needs gyn surgery.

Her gynecologist recommends the surgery.

It's laparoscopic surgery to remove fibroids.

The patient agrees to have the surgery.

During surgery, the doctor fails to realize that he perforated the patient's bowel.

Five days later, the patient needs emergency surgery.

She is diagnosed with a massive hole in her bowel.

She needs to have half of her colon surgically removed.

She needs to have a colostomy bag to allow her colon to heal.

She is in the ICU for the next three weeks with post-operative complications and infections.

Our medical expert confirmed that this gynecologist violated the basic standards of medical care.

Our expert confirmed that this doctor's wrongdoing caused and contributed to this patient's permanent injuries.

My client sued her gynecologist.

The case was in Queens County Supreme Court.

That's the trial level court for civil lawsuits in Queens.

The defense attorney was very experienced and was a partner in a large defense law firm on Long Island.

During the lawsuit I had an opportunity to question Dr. Clumsy Gynecologist.

Here's the scene...

We're in his lawyer's office.

His conference room to be exact.

There is no judge present.

There is no jury present.

Only the doctor, his experienced attorney, a court stenographer and little ole' me.

I asked this doctor two questions.

You should know that most lawyers introduce themselves to the doctor.

I don't.

Most attorneys then give the doctor preliminary instructions.

I don't.

Those preliminary instructions are a waste of everyone's time.

Besides, the doctor has already been given these same instructions by his own attorney.

"Doctor, if you can't answer the question, tell me and I'll ask a different question."


Yes, really.

"Doctor, if you need to take a break, let me know and we'll take a break."

"Doctor, if I ask you a question, you can't ask to speak to your attorney first. You have to answer the question, then go speak to him."

This is the kind of preliminary nonsense that most lawyers start out with.

Such a wasted opportunity.

A lost opportunity to capture the doctor off balance and get him to launch into an explanation that could help us.

The two questions I asked, he was not prepared for.

Two questions that established immediately that it was his carelessness that caused my client permanent injury.

His attorney didn't have time to object.

The doctor quickly answered my questions.

After the doctor answer both questions, I could see the attorney's reaction.

He just gave away the case.

He basically admitted he screwed up.

His attorney did his best to hide his astonishment.

But I could tell immediately it had the intended effect.

Here's what I asked him...

"Doctor, would you agree that when performing laparoscopic gynecologic surgery, it's important not to perforate the bowel?"


"Explain to me how this patient's bowel became perforated..."

He couldn't give me a coherent answer.

I then asked an immediate follow up question.

"Doctor, would you agree that failing to diagnose a bowel perforation during surgery would be a violation from the basic standard of medical care?"


"Tell me why doctor."

That sealed this case.

Using the doctor's own words, he sealed his fate.

Using his own explanation, he allowed me to prove my case.

In law, we say that I have made out a prima facie case.

Remember, I need only show that we are slightly more likely right than wrong that what we are claiming is true.

I don't have to show with 100% certainty that what we are claiming is true.

What if this experienced defense lawyer had objected to my initial two questions?

I would have simply rephrased them as follows...

"Doctor, would you agree that when performing gyn laparoscopic surgery to remove fibroids, it's important not to perforate the bowel?"

"Would you agree that perforating an adjoining organ or bowel is a known risk of surgery?"

"The mere fact that a bowel injury occurs during surgery is not, in your opinion, a departure from good care, correct?"

[Comment: I ask that to let the doctor know that I agree there are instances where such an injury can occur without carelessness. But then I go on to distinguish that statement with what actually happened.]

"Would you agree that the failure to recognize a bowel injury during surgery, intra-operatively, would be a violation from the basic standards of medical care?"

"In this particular case, this patient was diagnosed with a bowel perforation five days after your surgery, correct?"

"Did you puncture the bowel?"

"Did the resident puncture the bowel?"

"Did you burn the bowel during surgery?"

"Did the patient have any history of abdominal surgery or scarring that might have contributed to a tearing or perforation of her bowel?

[Comment: This is a common defense in failing to diagnose bowel injury cases. The doctor often claims that there was no way he could have known or seen a burn injury. Another defense is that the patient's tissues were 'friable' and easily destroyed with the slightest surgical trauma. Another defense is if the patient had received radiation therapy claiming that caused or contributed to a burn in or near the bowel. If there's a lot of scar tissue from prior surgeries the doctor argues that seeing a small tiny perforation is impossible and it's only after days of bowel contents going through the bowel does the hole get bigger.]

Let's get back to the defense attorney's reaction to my first two questions and the doctor's answers in this gyn surgery case.

I knew after getting those two answers, this case was over.

I knew they'd have no choice but to settle this case.

At the end of the doctor's deposition, the defense attorney asked me to stay for a few moments so he could talk to me privately.

After he said goodbye to the doctor, he returned to the conference room to chat with me.

He said that in all the years he's been representing doctors in these medical malpractice cases, he's never seen a plaintiff's attorney do what I did in the first two questions.

He actually said that was remarkable.

I thanked him and then he said he'd relay the day's events to his insurance carrier to see if we could start negotiating.

I left his office that day knowing that I gained the respect of this attorney.

Knowing that they had no choice but to settle this case.

Knowing that this surgeon, eager to explain, told me everything I needed to prove my case with only my first two questions and his answers.

There is no way I'd have obtained this information had I questioned him the way most attorneys are prone to do.

Not that it's wrong, but it's not my style and doesn't fit my strategy.

To learn about questions I ask during a doctor's deposition, I invite you to watch the quick video below...





Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer