It's a medical malpractice case.

Here in New York.

You believe your doctor violated the basic standards of medical care. You believe that your doctor did not treat you appropriately, causing you significant injury and harm.

You decide to sue your doctor claiming that he violated the basic standards of medical care and those violations caused you injury.

During the course of your lawsuit I will have an opportunity to question the doctor that you have sued.

This is pretrial testimony that carries the same weight as if the doctor were testifying at trial.

Legally, this is known as a deposition or an examination before trial. 

You should know that when you bring a lawsuit against a physician in New York, during the course of pretrial testimony I can question this doctor as if he is a medical expert. The law allows me the ability to ask questions about the standards of care that existed at the time he treated you.

Because he is also considered an adverse witness, I also have the opportunity to ask leading questions both during pretrial testimony and also at trial.

Since the law considers your doctor to be an expert, I have the ability to ask him opinion questions about the treatment he rendered to you.

However, this can be a double-edged sword, especially for an attorney who is unfamiliar with proper strategies and tactics to question the doctor.

Here's a perfect example...

If I were to simply ask the doctor this question, what do you think he would say?

“Doctor, did you treat Mrs. Jones in accordance with good and accepted medical practice?”

The answer will always be “Of course, yes.”

That question and that answer accomplish is nothing.

That's like asking the cat where the mouse is.

Instead, our goal is to get the doctor to testify in his own words exactly what the standards of care were for this particular patient.

Then, after the doctor has established the baseline standards for how a physician should treat this patient, we will then comb through, in detail, the doctor's care and treatment of you from the very beginning until the last time he saw you.

Then after the doctor has established what treatment he rendered to you and why, we can then compare it to what the doctor described as the baseline standard of care.

Let me give you an example in order to clearly visualize what I'm talking about here...

  • “Dr. Jones, you are a gynecologist, correct?
  • You are board-certified in the field of obstetrics and gynecology, correct?
  • During the course of your career you have had an opportunity to see and treat patients who have come into the office with breast lumps, correct?
  • You know that the standard of care in that situation requires you to do a physical examination and palpate the breast, correct?
  • You want to palpate the breast with the patient sitting up.
  • You also want to palpate the breast while the patient is lying down, true?
  • You also must ask the patient a detailed history about how long the lump has existed, when she noticed it and whether she observed any changes, correct?
  • In addition to those observations and that basic physical and manual examination, you would agree that it is good medical practice to then refer the patient out to get a breast sonogram, correct?
  • In addition to a breast sonogram, the standard of care requires that you send the patient for mammogram, true?
  • The standard of care in that situation also requires you to refer the patient to a breast surgeon for evaluation, correct?
  • Then, the standard of medical care requires that you have the patient return to your office to discuss those test results and form a treatment plan in order to address the breast lump, correct?"

The purpose of these questions is to establish from the doctor that this is what good medical practice requires for patient who presents in the office with a breast lump.

I know from the outset, having already reviewed the doctor's records in detail and having already had a medical expert review these medical records, that there's some aspect of this patient's care and treatment that did not conform to the standard of medical care.

Yet, it is critical for me to get the doctor to acknowledge, verbalize and recognize that this is what good medical practice requires.

Then, during the course of my questioning, I can identify exactly what steps were missing from this doctor's care and treatment. Once I have established that the doctor failed to do X, Y or Z, then I can come right out and ask him whether failing to do that procedure or that step represents a violation from the basic standards of medical care.

You should know that most doctors will refuse to knowledge willingly or voluntarily that they did anything wrong.

They are extremely uncomfortable and defensive when being forced to acknowledge that they did not do something they should have done.

In that instance, I find many doctors tend to make excuses.

Their attorneys who are sitting next to them during pretrial testimony also make lots of objections trying to divert attention away from why the doctor failed to do a particular step in what should have been the correct thing.

In that instance, I have the ability and the opportunity, and in fact an obligation to ask the doctor hypothetical questions.

Let me show you how this really works...

  • “Doctor, you told me earlier that the standard of care for a patient who comes into your office with a complaint of a breast lump is to send her for a breast sonogram, a breast mammogram and refer her to a breast surgeon for evaluation, correct?
  • In this case, your records reflect only that you sent the patient for a breast sonogram and a breast mammogram, correct?
  • There is nothing in any of your notes confirming that you wanted this patient sent to a breast surgeon.
  • There is no notation by you confirming a referral to a breast surgeon.
  • Isn't it true that when you refer a patient to a breast surgeon, you always give them a referral note to take with them?
  • Isn't it also true that you will often have your office staff set up the appointment with the breast surgeon directly and notify the patient of the date and time of this breast surgeon's scheduled visit?
  • Do you see any of that anywhere in your office notes for this patient?
  • You would agree, wouldn't you, that failing to send the patient for a breast surgery evaluation would be a departure from good and accepted medical practice?"
  • “Objection!" The defense attorney yells. That's not what the doctor said.
  • "Doctor, you told me earlier that good medical practice requires that the patient be sent for sonogram, mammograms and breast surgery evaluation.True?
  • Yes.
  • “But I also told the patient but she should have a sonogram and mammogram first and then we would reevaluate whether she should have the breast surgery evaluation.”
  • "Doctor, I want you to assume that this patient presented to your office on January 1 with a breast lump. I also want you to assume that the breast lump had existed for two weeks and had gotten larger during that time. The patient observed redness and swelling surrounding the lump and came to you on January 1 for evaluation.
  • I want you to also assume that you performed a breast examination of this patient both sitting up and lying down. I also want you to assume that you told the patient that she needed to have an immediate breast sonogram and a breast mammogram.
  • I want you to assume that this patient has testified during pretrial testimony that at no time did you ever tell her to get a breast surgery evaluation. I also want you to assume that she has testified that at no time while you were treating her did you ever give her a referral to a breast surgeon to evaluate her breast lump.
  • Assuming those facts to be true doctor, would you agree that the failure to refer this patient to a breast surgeon in light of her presenting complaints, symptoms and physical findings would be a clear violation from good and accepted medical practice?”

Even though the defense attorney will object to this hypothetical question, the doctor is still required to answer it.

The way the question was set up and phrased, he will have no choice but to acknowledge and accept that in those circumstances, with those set of facts, the answer must be “Yes.”

Notice the distinction between simply coming right out at the very beginning and asking the doctor whether he treated the patient appropriately and compare it to how I set up those questions and established what the basic standards of care were. Then, when we expose exactly what the doctor did or did not do, he then has no choice but to acknowledge and accept the fact that certain things may not have been done.

Even when the doctor refuses to voluntarily acknowledge he did anything wrong, we then use hypothetical questions using those facts that have been established and already testified to and those facts that are contained within the medical records to establish that the doctor violated the basic standards of medical care.

An attorney who fails to ask a doctor about what were the standards of care is doing himself and his client a disservice.

By asking the doctor who is being sued what were the standards of care, we are able to show, using the doctor's own words, that we are more likely right and wrong that in a specific circumstance.

This helps dramatically for settlement purposes as well as being able to prove our case at the time of trial.

To learn even more about why I ask the doctor what the standards of medical care were, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer