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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Another SSRI Linked to Birth Defects

For years, certain anti-depressant drugs have been in the news due to their link to birth defects in the infants born to women who took the drugs during their pregnancy. According to an article published in the New England Journal of Medicine, research shows that "infants born to mothers who took Zoloft (generic sertraline) or other SSRIs (selective serotonin reuptake inhibitors) after the 20th week of pregnancy were six times more likely to have persistent pulmonary hypertension (PPHN) than infants born to mothers who did not take antidepressants during pregnancy."

Infants born with PPHN have difficulty making the transition from breathing inside the womb to normal breathing after delivery. This difficulty often leads to respiratory failure that requires use of a ventilator. Research has found that SSRI's accumulate in the adult's lungs and serotonin can cause the proliferation of certain muscle cells. This may explain the drug's effect on the fetus. Between 10-20% of babies born with this condition do not survive.

The drug company that manufactures Zoloft, Pfizer Incorporated, promotes the drug for disorders besides depression, so many women may be taking the drug who have never even been diagnosed with depression. Zoloft is also prescribed to treat social anxiety disorder, panic disorder, post-traumatic stress disorder, premenstrual dysphoric disorder, and obsessive-compulsive disorder.

The fact that women can become dependent on Zoloft and other SSRI's presents yet another problem. Medicines associated with withdrawal symptoms can be very problematic for patients, and stopping these drugs is something that needs to be closely monitored by a physician. However, continuing to take Zoloft presents the additional problem of the infant going through withdrawal after he is born.

Research shows that nearly one-third of all infants born to women taking SSRIs show symptoms of withdrawal including tremors, high-pitched crying, sleep disturbances, and gastrointestinal problems. A startling 13% of 60 newborns exposed to SSRIs showed severe symptoms of withdrawal.

If you are a pregnant woman taking Zoloft or any other SSRI, you should contact your physician immediately. If you are a woman who took Zoloft while you were pregnant and your child suffers from PPHN, you may have a legitimate legal claim against the manufacturer of Zoloft.

Many people assume that because a drug is prescribed by a physician, it is safe; unfortunately, that is not always the case. And, even though the FDA screens drugs before they are released to the general public, dangerous side effects sometimes don't become apparent for years after the drugs have been approved.

If you or a loved one has suffered adverse side effects after taking Zoloft or any other dangerous drug in Colorado, please contact the Dangerous Drugs Attorney Andrew T. Brake, P.C.

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