15 Key Deposition Techniques in a Medical Malpractice Case

QUESTIONS TO ASK THE DEFENDANT DOCTOR

WARNING:
Preparation is the entire key to a doctors deposition. You must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.

1.Most lawyers ask the same boring questions at the beginning of every deposition:

a.State your name and address
b.State your qualifications, pedigree, schooling, etc.

Comment: OK, this is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctors deposition this way. Why not go right to the heart of the case with the very first question? You can always get the doctors credentials later or at the end. Besides, the credentials are usually found online or in a curriculum vitae, and dont help except to establish where he went to school and whether hes board certified in any specialty. On more than one occasion the doctor has been disoriented by this approach. They are usually prepared for questions in a lock-step manner and do not expect something so unusual, but legally permissible set of questions right off the bat.

2.Go ahead- ask why they operated on the wrong side of the brain as your first question. Objection, no foundation, says the defense attorney. So where does it say in the CPLR I need to lay a foundation question? Despite this exchange of ideas, if you get such an objection, then simply ask:

a.Didnt you operate on my client on this date?
b.Isnt it true you operated on the wrong leg?
c.Why?

3.I always advocate asking the why question at deposition. It is much better to know the reasons why a doctor did or didnt so something now, rather than save the question for trial. At trial, the reason may be devastating to our case, and if so, I want to know about it now. Besides, when you question a doctor at trial, as an adverse witness, you never want to ask a question in which you dont know the answer. If you do, you subject yourself, your client and your case to inherent risks that could jeopardize the case.

4.Make the doctor read his notes into the record. This is important for anyone who is trying to decipher the doctors handwriting later on. Your expert will definitely need to know whether the scribble is important, and the only way to do that is if the doctor explains, on the record, what his scribble means.

5.Be polite. At all times. You cant imagine how many lawyers dont listen to this recommendation. They think they know it all, are sarcastic, belligerent, annoying, and really annoy everybody in the room. The doctors attitude in responding changes as well. No longer is the doctor as verbose. No longer does the doctor look like the perpetrator. Rather, he might begin to look like a victim if attacks against him and his credibility are kept up.

6.You can still make all your points without being hostile, angry, yelling or screaming. The old saying you get more with honey than with vinegar speaks volumes. Naturally, youre not going to bend over and sweet talk your way to getting the doctors admissions about how he screwed up. But, the key is being professional and knowledgeable. You gain more respect from your adversary- (dont worry about respect or lack of it from the doctor) by being respectful than you do if you are antagonistic.

7.There are times when you want to rile the physician. You want to know if you can push his buttons. You want to know how easily it is to rankle his composure. If its easy to do at deposition, your trial strategy toward this witness just got that much easier.

8.Find out about conversations the doctor had with the patient, family members and other doctors. Remember, conversations are rarely recorded in a hospital record. Make sure you ask the doctor to confirm or deny comments that your client has testified about. Most often, the doctor will claim they no longer recall the conversation. But, if your client does, its much more possible that the conversation occurred. If the doctor denies making certain comments, then you know you have different facts about the same conversation, and a jury will have to ultimately decide who is telling the truth.

9.Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked.

a.Ask whether their hospital privileges have ever been suspended or provoked.

b.Always ask whether the doctor has given testimony before.

i.Ask whether it was an an expert for plaintiff or defendant
ii.Ask whether they were a treating physician
iii.Ask what type of case it was, and the name of the case
iv.Ask whether they were paid for their time in Court to testify in that matter

10.In New York, in a medical malpractice deposition, you must ask opinion questions. The doctor- as a defendant is required to answer expert questions and give answers about his medical opinions.

a.Do you have an opinion, with a reasonable degree of medical probability whether the treatment rendered to Mrs. X was appropriate and within the standard of care?

b.If you have an opinion, what is that opinion?

c.Confront the doctor with other opinions in the medical community that disagree with his school of thought and ask what he thinks of those opinions.

d.Ask the doctor to admit to certain facts- Heres an example:

i.Isnt it true the patient got Ex-lax at 10 p.m.?

ii.Isnt it true that patients with colon tumors shouldnt get ex-lax?

iii.Are there any circumstances when you would prescribe this medication for a patient who had this tumor?

iv.Would you agree that if the patient got ex-lax at 10 pm that would be a departure from good care?

v.Would you agree that the only reason the patient suffered injury was because she got ex-lax at 10 pm?

vi.Would you agree that had she not gotten the ex-lax at 10 pm, she wouldnt have suffered the bowel perforation?

11.Make sure you rule out other potential causes of injury besides the malpractice that you are claiming occurred here. The reason you do this is to learn the potential defense to your case. The defense will always come up with some explanation as to why your argument is not valid. Better you should learn it during the deposition than to head to trial without knowing what their defense will be.

12.Ask many open ended questions. Ask who/ what/ where/ when/ why/ how. By doing this, you will get the doctor to talk and explain. If the doctors is going on and on without directly answering the question- and his attorney is letting him- thats ok. Let him keep talking; you might actually get some useful information. When he stops talking simply say Maybe my question wasnt clear doctor. What I was looking for was.can you answer that question? Always take the blame if the doctor says the question is not clear. Dont respond to him by asking What didnt you understand about my English language question?

13.Ask about medical definitions.

a.What is an endocervical curettage?
b.What is a myocardial infarction?
c.What is hypoxia?
d.Ask whether these definitions are commonly accepted within the medical community, or whether there are other schools of accepted definitions.

14.Ask whether theyve reviewed any medical literature or textbooks prior to coming to the deposition.

a.Did you bring any with you?
b.Which ones did you review?
c.What did you learn from the article? Did it support your position here, or was it contrary to your position?

15.Finally, but not last, ask about credentials, schooling, licensing, board certification- but you should already have this information before your deposition when you research the defendant doctor. I always advocate doing a Google search on the physician to see if theyve authored anything or if theres anything out there online thats worthwhile knowing. I recently learned from an online search where the defendant doctor was fired from his residency and sued the chairman of his department. Needless to say, this information proved very useful at deposition.

___________________________

There have been many books written about how to conduct depositions. The most important factor about taking a doctors deposition has, in my opinion, been the experience of the attorney doing the questioning. Anyone can read from a list of prepared questions. It takes an experienced attorney to listen to the answers and know where you want to go and then develop a strategy on how to get there while protecting your clients rights to the best of your ability.

For more information, please feel free to call me, 516-487-8207

Gerry Oginski

Gerry Oginski is an attorney with over 16 years of experience handling medical malpractice and injury cases involving car accidents, trip and falls, defective products and medication errors. His consultations are always free. He invites injured victims and their family members to call with any legal questions they may have about their injuries or their accident. The consultation is free, and there is never any pressure or obligation at any time. Call Mr. Oginski today and get the information you need to help you through the legal minefield; 516-487-8207, or visit his website at http://www.oginski-law.com

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What Exactly Does A Personal Injury and Medical Malpractice Lawyer Do?

He helps navigate the murky waters that can trap an unknowing victim into muck and mire.

When a person slips and falls, causing injury, your lawyer needs to find out why you slipped.

Was there a defect on the property that should have been corrected? Was it simply that you didn't see where you were walking? Was the staircase not up to code so as to make it dangerous? These are the questions your lawyer will need to examine.

Products causing injury

This is known as product liability. Let's say you opened a bottle of soda and the cap exploded off the bottle and into your eye causing permanent damage. Is the bottling company to blame? Possibly. How about a miter saw that is supposed to have a guard to protect your fingers as you slide the wood into the cutting blade? What about a car that permits you to move the gear into reverse without first putting your foot on the brake? (This is called a gear interlock to prevent kids from playing with the gear lever. It's happened where they slip the gears into reverse and the car starts to move causing injury).

Evaluation of a product that is commonly used or bought can be very technical. Many times we need to hire engineers to evaluate a product to see whether it was designed properly and was properly placed into the marketplace.

Medical Malpractice

Malpractice is a departure from good and accepted medical care causing injury. As with anyone, doctors are held accountable for their actions, as we all are. In order to confirm evidence of wrongdoing we need to have medical experts review your records before being able to start a lawsuit for your injuries. Most cases that I see in my office do not meet the strict criteria for being able to start a case. Of those we accept, some will go to trial and others will be settled before trial.

Malpractice cases are one of the most hotly contested areas of law today. The defense attorneys we often encounter are extremely well educated and trained at defending these lawsuits.

Car accidents

We all know what terrible reputations lawyers get from all those tacky advertisements showing damaged cars and clients in wheelchairs holding up poster-sized checks with lots of zeros after some number.

But the fact is that there are accidents and very serious injuries that result from these horrible events. Lives are shattered from a moment of carelessness. Just look around at how many people still talk on their cell phone while driving even though it's against the law!

Most people aren't interested in these informative newsletters because luckily, a tragedy hasn't befallen them. That's ok. We hope that it never does. The purpose of this newsletter is to give my readers an understanding of what we as lawyers do, and how we can help if the need ever arises. You'll find that I like to inform my readers about their options before they ever need a lawyer, and before they ever step foot into a lawyer's office. How many other lawyers do you know who do that?

In an accident case, I look to see how the accident happened. Where were you driving? What were the road conditions? Was your car in good mechanical condition? Was someone speeding? Did someone turn where they shouldn't have been turning? Was horseplay involved? (Think back to when a turkey was thrown from a moving car causing terrible damage to the woman driving behind them).

While going about our daily lives we shouldn't have to worry ourselves about getting injured. Common sense should dictate what good conduct is and what is not. Unfortunately, there are many people out there who are simply careless about how they do their daily activities. Haven't we all seen people reading the newspaper while stuck in traffic- and they're driving! How about applying makeup on the way to work, and driving at the same time?

Imagine this scenario

A woman is late for work.

She's in her car and traffic is crawling. She's putting on lipstick and looking in the rearview mirror to see if it's on correctly. At the same time her cell phone rings, and while answering it, she decides to light her cigarette. Unfortunately for her, the car lighter drops to her feet and now she's got her lipstick in one hand, the cell phone in the other, a cigarette dangling in her lips, and she's supposed to be paying attention to the road.

Can't you just hear the accident in your head, and visualize the crushing of metal, as her eyes are on the floor looking for the lighter? Believe me, there are plenty of cases like this one that have caused other people injury.

Imagine if people were never careless! There would be no accidents, no need for insurance, and there'd be no personal injury lawsuits. Unfortunately, we are not perfect and accidents do happen.

But how then do you determine whether the accident was something that couldn't be avoided or was the result of lack of attention? We must conduct a thorough and detailed investigation.

Remember, when an injured victim comes to us, they're telling us what happened to them from their point of view. We have to investigate and make sure that all other points of view (witnesses) can confirm what we've been told. When we do that, we build your case and can then support the facts that led to your injury.

Dog Bites

Did you know that certain types of dogs are more prone to bite someone than others? Let's look at the pit bull for example. Just because a pit bull bites someone, as opposed to a tiny Chihuahua, does that mean the owner of the dog will be held responsible? The answer depends on many factors.

If the dog has never had any prior vicious tendencies and has never bitten anyone before, how then can his owner be responsible for this biting episode? One could argue that all pit bulls in general, are inherently violent. Not a bad argument to make, but not a totally accurate one either. What if you learned that before biting, the dog was tormented and teased repeatedly by a guest? Would that change things? Sure it would.

Injustice, humiliation and psychological injuries

We can all tell when an injustice happens-

Someone is pulled over because the color of his skin is different from those living in the neighborhood.

Someone is denied entry to a club because their religious beliefs are different than those who run the club.

Someone is denied service at a restaurant because of the way they dress or the accent of their voice. How about a woman who was denied a partnership because she was pregnant? What about the indignity of a high school football player who was sexually abused while away at football training camp with his high school team?

Despite all of our advances today, there is still bigotry, prejudice and hatred in this country. If you're a victim of injustice or humiliation what can you do about it? There are certain types of lawsuits that allow victims of injustice to seek justice. They're sometimes called discrimination lawsuits, or violation of civil rights lawsuits. The pain inflicted by injustice can be devastating and have long-term social and psychological effects.

Your lawyer will ask about your history, both medical and psychological. You will probably be asked to have specific psychological testing and counseling to confirm and identify some of the problems you are currently experiencing.

I know that some people believe that if an injury can't be seen that means it's less meaningful than a horrible disfiguring injury. That's not always true.

I'll bet there's something in everyone's childhood where they can remember a parent or an older child saying something bad about you. Looking back all those years, you still vividly remember the hurt you experienced that day. That's injustice. There's no 'physical' injury, but the emotional scar is ever-present.

So, "What does a lawyer do?"

A lawyer is someone to guide you; to help you through your trouble; to explain the law to you and how the law applies to your facts. A lawyer should be advising you of your legal options and what you can do to correct the injustices that have happened to you. That's what a good lawyer does.

Attorney Oginski has been in practice for 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client's are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client's case from start to finish.

Gerry represents injured people in injury cases and medical malpractice matters in Brooklyn, Queens, New York City, the Bronx, Staten Island, Nassau and Suffolk Counties. You can reach him at http://www.oginski-law.com, or 516-487-8207. All inquiries are free and totally confidential.

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