15 Key Deposition Techniques in
a Medical Malpractice Case
QUESTIONS TO ASK THE DEFENDANT DOCTOR
WARNING:
Preparation is the entire key to a doctor’s
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 doctor’s
deposition this way. Why not go right to the heart of the
case with the very first question? You can always get the
doctor’s credentials later or at the end. Besides,
the credentials are usually found online or in a curriculum
vitae, and don’t help except to establish where he
went to school and whether he’s 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. “Didn’t you operate on
my client on this date?”
b. “Isn’t 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 didn’t do 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 don’t 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 doctor’s 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 can’t
imagine how many lawyers don’t listen to this recommendation.
They think they know it all, are sarcastic, belligerent,
annoying, and really annoy everybody in the room. The doctor’s
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, you’re not going to bend
over and sweet talk your way to getting the doctor’s
admissions about how he screwed up. But, the key is being
professional and knowledgeable. You gain more respect from
your adversary- (don’t 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 it’s 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, it’s 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 as 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- Here’s an example:
i. Isn’t it true the patient got
Ex-lax at 10 p.m.?
ii. Isn’t it true that patients
with colon tumors shouldn’t 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 wouldn’t 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 doctor’s
is going on and on without directly answering the question-
and his attorney is letting him- that’s ok. Let him
keep talking; you might actually get some useful information.
When he stops talking simply say “Maybe my question
wasn’t 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. Don’t respond
to him by asking “What didn’t 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 they’ve 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
they’ve authored anything or if there’s anything
out there online that’s 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 doctor’s 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 client’s rights to the
best of your ability.
About The Author:
Attorney Gerry 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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