You sued your doctor.
For medical malpractice.
For causing you harm and injury.

Not intentionally, but because he was careless.

We had your medical records reviewed by a board certified medical expert.
He confirmed that your doctor violated the basic standards of care.
He confirmed that his wrongdoing caused you injury.

He also confirmed that your injuries are disabling and permanent.

Because our expert confirmed you had a valid case, we now proceeded forward with a lawsuit on your behalf.
A lawsuit seeking money as a form of compensation for all of your injuries and losses.
Your doctor, through his attorney, denied ALL of your allegations.

He denied he did anything wrong.
He denied that whatever he did caused you injury.
He also denied that your injuries are permanent.

He told his lawyer, who told your lawyer that he will never settle this case.
He told his lawyer to tell your lawyer that he will never negotiate with you.
"I'll see you in court," he said through his attorney.

That means that your lawsuit will proceed all the way to trial.
But it will take two to three years to get there.
Along the way, much will happen.

One of the things that must take place in a medical malpractice case is a deposition.
That's really a question and answer session that takes place in your attorneys' office.
In his conference room to be exact.

You see...each attorney has a chance to question the people in the lawsuit and ask them questions.
Lots of questions.
Questions about what happened.

Questions about what was done and why.
Questions about what injuries you suffered and what you're no longer able to do today.
Your question and answer session will  go first.

Your lawyer will prepare you for the types of questions you will be asked during your deposition.
There's no judge in the room with you.
There's also no jury in the conference room.

There's your lawyer, the doctors' lawyer and a court stenographer.
That court stenographer, also known as a court reporter, is there to record all of the questions you're asked and all the answers that you give in response.
Even though this questioning takes place in your lawyers' office, the answers you give carry the SAME EXACT WEIGHT AS IF YOU ARE TESTIFYING AT TRIAL!

The answers you give represent your sworn testimony.
It locks you into your answers.
That means when your case comes up for trial a year down the road, when you are asked the same or similar questions, you want your answers to be the same as what you gave during your pretrial testimony.

You don't want to have inconsistencies.

A few weeks or months after your deposition, we will have a chance to question your doctor.
This will take place in his lawyers' office.
He'll have his medical records with him.

His attorney will be there.
A court reporter will be there.
And I will be there to question him.


At trial, I will likely call your doctor to the witness stand as my very first trial witness.
There are many strategic reasons to do so.
Even though I am calling your doctor to the witness stand, I am permitted to question him as if I am cross examining him.

That's because he is technically a 'hostile witness'.
His interests are adverse to ours.
Because of that, the judge will allow me to ask leading questions that call only for a yes or no answer.

During cross examination, I want to be the one telling a story to the jury.
I do that using short, leading questions.

"Dr. Jones, isn't it true that on January 1, you saw and examined Mrs. Gonzalez?
"When you saw her, isn't it true that she complained of a lump in her left breast?
"After taking a detailed history, you performed a physical exam, right?"
"You palpated her left breast?
"You palpated her right breast too, right?

I only want the doctor to agree with my statement or disagree.
That's it.
I don't want the doctor to explain ANYTHING.

Why not?
If I give your doctor an opportunity to explain, he's going to give the jury a long-winded explanation that is sure to hurt your case. Besides, he'll have plenty of time to explain everything he wants when his own lawyer gets up to question him when I'm done.


A deposition is really an opportunity to learn more about what happened.
I will ask a doctor questions about the anatomy.
I will ask a doctor questions about the standard of care.
I will ask a doctor to explain what he did and why he did it.

A deposition is the opportunity for me to learn.
It's 'discovery', which is the exact word we use to describe what happened during the learning phase of your lawsuit.
Instead of the 'learning phase' it's really known as the 'discovery phase' of your case.

I need to know why a doctor did or didn't do something.
"Doctor, tell me why you did that."
"What were you thinking at that time about..."

"What was your differential diagnosis about the possible causes for this patient's problems?"
"What conversations did you have?"
"What did you speak about?"

"Tell me what happened next..."

During your doctors' deposition I want him to explain.
I need him to explain.
Not only do I need to learn who, what, where, when, how and why, but this will help formulate my trial strategy.

Remember, there's no jury present during this questioning.
There's no judge present either.
Just the lawyers and a court stenographer.

The questions and answers are transcribed into a booklet called a transcript.
I will take that transcript and send it to my expert to review.
I want him to comment on what your doctor said.

If I were only to ask factual questions about what's contained in the medical record then I'd be losing out on damaging information that might come back to bite me in the butt.

The doctor might have a good explanation for why the patient had complications after surgery.
If I don't ask about it, I guarantee the defense will bring it up at trial and likely destroy our case.

I need to know what the defense arguments will be.
Is he arguing that my client caused her own injuries?
Is he arguing that her injuries are a known risk of the procedure?

Is he claiming that even in the best of hands, this injury could still have happened?
If I don't ask WHY, then I'll never know...until trial that is.
That's when they'll surprise us.

They'll ambush us with this defense.
If I didn't have enough sense to ask about it during your doctors' deposition, we'll be at a distinct disadvantage.


At trial, when I cross examine your doctor, I NEVER want to ask a question to which I do not already know the answer.
Why not?

Because that answer will always come back and hurt you and your case.
The only time I'm asking a question is when I already know the answer.
How do I know the answers to those questions?

I've already asked those questions and I already got the answers from your doctor during his pretrial questioning.
That's one of the key reasons to ask open-ended questions during a deposition.
This way, I can now tell your story using short, leading questions that call only for a yes or no answer.

When we are at trial, the jury doesn't yet know that I have already had a chance to question your doctor.
They don't know that I know the answers to the questions I'm asking.
But they will once the witness gives me contradictions between what he said a year earlier at his deposition and what he's saying now at trial.

Want to learn more about cross examination strategies and how to control a medical expert at trial?
I invite you to watch the video series below...


Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer