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Here's One Question You Should NEVER Be Allowed to Answer in a Wrongful Death Lawsuit in New York...

How much life insurance did he have?

That's it.
Have a nice day!
You thought that was it, right?

Almost.
Here's what I mean...
One of your family members died.

You believe it was because his doctor was careless.
You believe his doctors' wrongdoing caused him to die.
You decide to investigate and see if that's true.

You hire an attorney who obtains all his medical records.
Your lawyer hires a well-qualified board certified medical expert.
The expert confirms that this doctor violated the basic standards of medical practice.

The expert confirmed that the doctors' carelessness caused and contributed to his death.
He was too young.
"This was preventable," your medical expert tells your lawyer.

Your lawyer tells you that he now has the confirmation he needs to start a lawsuit on behalf of your surviving family members.
The doctor your family sued claims he did nothing wrong.
He claims that whatever he did, didn't cause him any injury and certainly didn't cause his death.

Then, he has the nerve to say that even if he did something to cause his death, the damages your family is claiming is absurd.

During the course of your lawsuit, you will be required to answer questions from the attorney who represents the doctor you sued.
Legally this is called a deposition.
We also call it an examination before trial.

Either way, it's pretrial testimony and carries the same exact weight as if you are testifying at trial.
The only real difference between answering questions in a deposition and trial is really where it takes place and who is there.
In the pretrial question and answer session known as a deposition only a few people will be in the room with you.

This will typically take place in your lawyer's conference room.
Your attorney will be there.
The defense attorney will be there.

A court stenographer will also be there to record all the quesetions you're asked and all the answers you give.
There's no judge there.
There's no jury there.

But make no mistake, the sworn answers you give form the basis of your testimony.
Years later, when your case gets to trial, if your answers at trial are materially different from the answers you gave during your pretrial depostion, the defense will highlight those inconsistencies to the jury. He will make it seem as if you're intentionally trying to mislead the jury.

One of the questions the defense lawyer is likely to ask you is whether the family member who died had life insurance.
It's often done as a 'throw-away' question.
The attorney tries to make it seem as if the question doesn't have much significance or importance.

"Mrs. Jones, did your husband have any life insurance?"

Assuming your lawyer is not fast asleep and paying attention, he should be yelling "OBJCTION! THAT QUESTION IS PALPABLY IMPROPER! You know that counselor. Ask your next question."

"What's the big deal?" you wonder.
It just so happens that he did have a life insurance policy.
He had a million dollar policy.

"What's the harm in telling the defense that he had a life insurance policy and how much it was for?"

LIFE INSURANCE HAS NOTHING TO DO WITH THE CLAIMS YOU'RE MAKING

Does the fact that your spouse had a life insurance policy have anything to do with determining whether the doctor you sued was careless?
The answer is obviously no.
Does the fact that he had life insurance have anything to do with whether the careless doctor's actions caused and contributed to your spouses' death?
Again, the answer is no.

If true, why would the defense attorney want to know the answer to that question?

THE DEFENSE MIGHT ARGUE THAT LIFE INSURANCE AFFECTS THE DAMAGES YOU CAN CLAIM

That's absolutely untrue.
Here's why...

If a jury determines that this doctor was negligent and his negligence was a cause of your husband's untimely death, then he becomes responsible for all the harms, losses and damages he and your family incurred because of his untimely death. The doctor must account for all those damages.

He DOES NOT get a credit for any life insurance your husband had.
The amount he ultimately must pay to you and your family as compensation for his death DOES NOT get reduced by the amount of available life insurance that the family received.

A life insurance policy has NOTHING to do with the amount that the doctor must pay if he's found responsible for this untimely death.
Why then would the defense want this information?
They want it to try and use during negotiations.

"Hey, why does the family need another $5 million when they're already getting $1 million of life insurance? How much more do they really need?" is an argument I have heard before. It's an awful argument. It makes no sense and is highly OFFENSIVE to me when I hear it.

Another possible reason the defense wants to know this information is to possibly seed the jury with the fact that your family will be getting some money regardless of the outcome of this lawsuit. That's an IMPROPER legal argument to make and again, highly offensive.

Every time this question comes up during a deposition, after voicing my objection and directing my client NOT to answer the palpably improper question I ask the following series of questions to the defense attorney...

"Counselor, do you have any legal support to ask such a question?"
"What does having life insurance have to do with the damages we're claiming in this case?"
"What's the relevance of life insurance on liability or causation here?"

In over 29 years of practice in New York, I have yet to hear a single coherent answer to these questions. Actually, there's only one exception I can think of. If there's a dispute about what your spouse put down in his life insurance application regarding his medical condition and what's contained in his other medical records, the defense question "Did your spouse have life insurance?" would be a proper question.

However, if they then ask 'HOW MUCH LIFE INSURANCE did he have?' that again would be an improper question.

To learn more about whether the defense can ask if your family member had life insurance, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer