I'm not talking about a moral obligation to own up to his mistake.

I'm not talking about an ethical obligation to say "Yes, I take responsibility for what happened."

Nor am I talking about forcing or compelling a doctor to recognize and admit that he screwed up.

Instead, I'm talking about pretrial testimony.

Testimony given under oath.

In his lawyer's office.

In his attorney's conference room.

There's no judge present.

There's no jury present.

You, the injured patient are not present.

Instead, the only people in the room are me, the doctor you sued, his lawyer and a court stenographer.

The court stenographer is there to record all of my questions and all of the doctor's answers.

Everything he says during this question and answer session is recorded by the court stenographer and put into a booklet.

That booklet is called a transcript.

That transcript is the doctor's pretrial testimony.

We use that booklet later at trial.

We can use the testmony from that booklet to show your doctor lied.

We can use it to show inconsistencies between something he said at trial and something he said years earlier in his pretrial testimony.

We can read parts of it to the jury.

We can use it to confront your doctor at trial.

Here's a basic human principle...

Nobody ever WANTS to admit they made a mistake.

It's not in our self-interest.

Nobody ever WANTS to admit they harmed a patient as a result of their carelessness.

It's not in our self-interest.

Nobody ever WILLINGLY will say "Yes, I screwed up, now just tell me how much to pay you to compensate you for all your injuries."

It doesn't happen like that.

However, during the pretrial question and answer process, I have an opportunity to ask your doctor hypothetical questions.

Questions that I believe are true.

Questions supported by our version of the facts.

You see, in a medical malpractice lawsuit in New York there's always a dispute.

There's a dispute about what happened.

There's a dispute about the standard of care.

There's a dispute about what the doctor should have done.

There's a dispute about what the doctor should not have done.

There's a dispute about whether your doctors' carelessness was a cause of your injury.

There's a dispute about how badly injured you are.

There's a dispute about whether your injuries are permanent.

There are many disputes that occur during this type of civil lawsuit.

In every dispute, there are different facts depending upon who is explaining what happened.

Each side has a different perspective.

Each side has different set of facts supported by their own evidence.

It might be medical records.

It might be someone's hand written note.

It might be a person-to-person conversation.

There are many different types of evidence that can be used to support your version of the events that occurred.

In these types of cases, we are permitted to Ask hypothetical questions.

"Doctor, I want you to assume the following facts to be true..."

Then, I will recite a few facts that we can show actually occurred.

Then, I'm permitted to ask the doctor whether he agrees or disagrees with those facts.

When using hypothetical questions, it is critically important to establish a set of facts that we can confirm based upon the evidence we have.

These are not facts that we wish we had.

These are facts that are confirmed by the evidence.

Here's an example...

"Doctor, I want you to assume that on January 1, Mrs. Jones arrived in your office for a follow up visit.

On that visit she complained of having a lump in her left breast.

You recorded her complaint at that time.

Would you agree that good medical practice requires you to investigate a complaint of a breast lump?"

*He has to say 'yes'.*

"Would you also agree that investigating a breast lump requires you to perform a physical examination?"


"That would include a breast exam with the patient lying down, correct?"


"That would also include a breast exam with the patient sitting up, correct?"


"Your breast exam must also include examining the patient's other breast as well, correct?"


"Would you agree doctor that if you failed to perform a breast exam after the patient complained of a breast lump, that would be a clear violation from the basic standard of medical care?"

**The doctor has to say "Yes" to this obvious question.**

"Would you also agree doctor that if you physically examine a patient, it's important to record that fact in your notes."

**He'll argue with me about the meaning of when it is and when it's not important about when to write down a finding during an office visit.**

"Doctor, you see many patients a day, right?"


"You see anywhere from 30-35 patients a day, correct?"


"You see patients four days a week, right?"


"In one week you might see 120-140 patients, right?"


"In one month, you could see 480-560 patients in your office, correct?"


"One of the key purposes of making notes about patient visits is to allow you to recall patient histories, complaints, findings on examination and your plan of treatment, correct?"

*He has to say "Yes"*

"If you perform a physical examination on a patient, would you agree it's important to tell the patient what you find?"

*He'll argue with me about the need to tell the patient in all cases.*

"Would you agree it's important to record your findings?"

*Again, he'll likely argue that his main job is not as a record keeper or a stenographer, but ultimately he has to agree it's important to keep accurate records, to have thorough and detailed records.*

"Would you agree that failing to record your physical examination would be a departure from good care?"

*He'll again argue with me that his main function is not to be a record keeper. However, he has to admit that it's important to keep accurate notes."

"Doctor, did you examine Mrs. Jones when she complained of a breast lump?"


"Did you examine her breast sitting up?"


"Did you examine her breast while she was lying down?"


"What did you find?"

"Everything was normal."

"Doctor, can you show me where in your patient notes you indicate you performed a breast examination on Mrs. Jones?"

"There is no note."

"Can you show me where you recorded your breast exam finding?"

"There is no note."

"Doctor, I want you to assume that Mrs. Jones has given pretrial testimony in this case. She has said that after telling you about her breast lump at no time did you perform a breast examination on that visit."

"Do you agree with her recollection?"

"No, I don't."

"Doctor, I want you to assume that Mrs. Jones' recollection is true. In that case, would you agree that failing to perform a breast examination after she complained of a breast lump would be a violation from the basic standard of medical care?"

**Here, he doesn't want to admit this possibility, but he has no choice.

He doesn't agree with our set of facts.

For the purposes of my questioning, I am permitted to ask and he is required to answer my hypothetical question. The reason these hypothetical questions are so important is that at trial, the jury will have to decide which set of facts they believe.

If the jury believes the injured patient's set of facts, then the doctor has now confirmed that there were violations and departures from good medical care. If the jury believes the doctor, then the patient will lose her case.

That's why in the headline of this article I said that the doctor has to admit he screwed up, provided the jury believes our set of facts.

Facts that are supported by the evidence.

To learn about a case where the doctor lied during his pretrial testimony, I invite you to watch the quick video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer