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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An Introduction to Holiday Accident Claims

When on holiday accidents can and do happen which can result in you suffering an injury. These accidents can often turn a pleasant trip away into a nightmare.

A holiday accident claim can arise in various ways. You could trip on an uneven surface or slip on a spilled liquid in your hotel. You could get food poisoning from poorly cooked food or you could be injured on a broken tile in the swimming pool. These are all examples of holiday accident claims that we have dealt with and succeeded with resulting in our clients being awarded compensation.

In order to make a claim following an accident on holiday you need to have booked the holiday as a package. This means that at least two elements of the holiday must be booked together. A common example is flights and accommodation.

It doesnt matter if the holiday accident happened at home or abroad as long as it forms part of a package. The accident claim will be dealt with in this jurisdiction so you wont have the problem of dealing with a claim in a foreign country.

In order to pursue a holiday accident claim it is important that you have reported the accident or illness to the holiday representatives and hotel staff. Other things that will help your claim are photographs of the scene, medical treatment information and any witness details.

We sincerely hope that your holiday is enjoyable and you that you dont need to make an accident claim. However, if you should suffer a holiday accident or illness we strongly advice you to seek legal advice and assistance from lawyers with experience and expertise in holiday accident claims. You should also ask your legal representation about no win no fee options, and all have all costs detailed in writing before processing your claim.

To find out more about Holiday Accident Claims and other types of Package Holiday Accident Claims please visit www.mycompensationclaim.co.uk.

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An Abundant, Yet a Scarce Resource

There are four primary factors of production; this includes capital, labor, resource, and the entrepreneur, one being dependent with the other, and as indispensable as any other factor. Yet among these factors of production, the one most often considered as least important using as a basis the benefits and attention given to it is labor.

The irony is that, our present laws give high regard to labor, considering the same as a primary social economic force. The fact is, the state even imposes upon itself the duty to fervently protect the rights or workers, and the promotion of their welfare. Yet, notwithstanding this safety net afforded to the workforce, the sad fact remains: These group of people in the society are often discriminated against and are in a constant uphill battle against oppression and marginalization.

Affording full protection to labor in organized or unorganized establishment, and the establishment of full employment and equal employment opportunities is a staple in every civilized society. Guaranteed rights of workers to include: the right to self organization, peaceful concerted acts, the right to strike in consonance with law, collective bargaining agreement, security of tenure, living wage, and humane conditions of work are only some of the safety provisions promoting a workman's welfare. Despite these array of rights explicitly contained under our laws, some if not all of industries which are labor-intensive do not afford said benefits. Adding insult to injury, these production-based employees are even strapped in a hostile employment environment making their situation much more degrading and unwanted.

In a situation where an employee's rights are not afforded, the occurrence of antagonistic relationship between labor and management is not an uncommon picture. Hence, in an aim of avoiding to sacrifice a stand-off in production, the promotion of shared responsibility and the use of voluntary modes in settling brewing disputes are necessary.

Labor is indeed an abundant resource, consequently, due to its increasing supply, the cheaper it is to acquire the same. So cheap in fact that even if not all the standard rights are afforded, still many individuals would readily accept any employment offer. Couple this fact with the growing incidence of poverty, and then what you have is an industry that caters more to the interest of the owners of the means of production, than those who use manpower to produce the same. As a result of this dichotomy, the fact of having abundant labor is a truism, but then again, despite the abundance of labor and the absence of the appropriate benefits afforded to them, quality labor is scarce.

Our Los Angeles Accident Attorneys specialize in all fields of personal injury, business law, social security, and employment cases.

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Doing the Right Thing for the Right Reason

When the phrase "pro bono" is put into the Westlaw search engine under Law Review Journals, you are prompted to select the following "related terms:" Benevolence, Charity, Gift, Gratuity, Largess and Philanthropy. Microsofts Encarta Dictionary defines "pro bono" as "done or undertaken for the public good without any payment or compensation." In the legal profession, "pro bono" is typically credited to the provider of services by a third party like a state bar agency. However no credit is given for services provided without third party assignment. Of course the obvious problem of manipulating free services "gratuitously" to those who do not need it, verses indigent parties, is real; so may be the incentive to voluntarily decline helping someone without resources if it is not credited as "pro bono." The point is that doing the right thing for the right reason is always a good thing.

Some attorneys are very accomplished in particular and specific areas, others practice in a more general way. It may not be particularly helpful or wise for a real estate attorney to take on a large medical malpractice trial; and visa versa. It may not be wise for a lawyer with virtually no experience in tax law to represent a client in an IRS hearing. The examples here are many; but the point is made.

On the other hand, a tax lawyer would be very useful in doing free legal work for an individual with IRS problems who can not afford legal services. A criminal defense lawyer may be able to provide competent representation for an accused person without resources. A lawyer with specific training and experience in particular medical areas could readily provide representation to a victim of injury when compensation is unavailable. In fact this area is fertile for gratuitous service.

I have a personal injury litigation practice. I try to keep the majority of my effort in the areas of brain injury. I have spoken publicly about the 3 things all brain injury cases require: liability, Injury and coverage an acronym I created "LIC"). Typically I do not get involved in handling cases where commercial insurance coverage is not available. It is simply too expensive to properly prepare a brain injury trial and the value of the losses frequently exceed individual auto policy limits. That said, I feel it incumbent on my practice to help severely injured people and their families whose cases lack insurance funds, when, for instance, that person is comatose in the Emergency Room and physicians simply do not know what to tell the family. I will sit at the hospital and wait with these people for a good sign. I will ask the physicians if the coma will result in permanent damage (which I know it will) and then I prepare the family for the reality of the impending death or, sometimes worse, so called recovery.

After the recovery (from coma) I try to help the family with government benefits, health insurance, if any, medical arrangements and care for the

injured family member. I do this in addition to obtaining confirmation of assets, lack of insurance, or recovery of inadequate insurance "limits" from a tortfeasor. I do not take a fee for my service.

Pro bono work is needed by indigents all over. As Christ said when his apostles questioned his motive for allowing Mary Magdalene to waste fragrance on him when they could have sold it and used the money to help others, "the poor will be with you always" Not for profit groups, like churches, shift providing for individual needs from indigent families to itself and thus relieve the government (other people of the state) from providing them. Likewise, lawyers should, when appropriate, relieve the publics need for legal service (funneled through government agencies) by providing legal service for no profit to folks who are not otherwise able to receive that service. This may shift part of the burden from the state agency to the not for profit provider the lawyer. This in turn will promote meeting the needs of the states pro bono needs by lawyers qualified to provide those needs.

The butterfly effect provides that a fluttering of a butterflys wings on one side of the globe can cause a hurricane on the other. The interconnectedness of everything is supported by the latest knowledge in the fields of physics and the cosmos. Doing your part, however small or large, can benefit the greater good.

Neither Clark County, the State of Nevada or anyone, other then the family helped, formally realizes that services were provided "gratuitously." But no matter, doing the right thing for the right reason is reward itself. If getting a pat on the back for caring and doing is motive for doing, it may inhibit some from doing good things when no one is looking. Hopefully the moments when something good is done when no one is looking, in my or any lawyers life, helps make up for some of the shortcomings in other parts of our lives. I hope so.

Timothy Titolo is a personal injury trial attorney representing clients with brain and spine injury. He is a frequently invited speaker at various brain injury associations around the country. He is the recipient of the 2002 Aurora Award, 2003 Award of Excellence, 2004 Jade Award, and 2005 Aurora Award for brain injury cases he has been involved in. He is a member of the Million Dollar Advocates and has obtained the largest verdicts and settlements in Nevada for persons with mild to moderate brain injury. http://www.titololawoffice.com info@titololawoffice.com

Timothy R. Titolo is Las Vegas and Nevadas experienced trial attorney. Mr. Titolo handles all types of personal injury cases, including catastrophic and serious injuries and wrongful death. He has particular expertise in traumatic brain injury (TBI), spinal cord injury and nerve damage cases.

Titolo Law Office has earned a reputation for achieving significant results. Through his successes, as well as by writing articles and giving presentations to attorneys and medical professionals around the country, Mr. Titolo has garnered the respect of colleagues.

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Debt Consolidation loans - Collate Your Multiple Debts

If you are juggling with multiple debts then a debt consolidation loan can help you in this regard. This loan type helps you to collate all your debts into a single loan and that also with a better interest rate.

Nowadays, people are often found to be trapped into credit card debts. The interest rates on the credit cards are higher and you can easily consolidate the credit card debts with the help of a debt consolidation loan on lower rate of interest.

A debt consolidation loan can be sought as a secured as well as an unsecured loan option. If your credit history is less than perfect or you would like to procure a higher loan amount for consolidating, then a secured debt consolidation loan can be a perfect choice for you.

However, with a secured loan option, you have to put some valuable asset as collateral. And, the loan amount can be sought on the equity present in that property.

On the other hand, with an unsecured loan you can borrow a loan amount without putting any of your assets as collateral. The best part with this loan type is that you dont have the threat of repossession of the property. However, the lender can take a legal action against you if you are unable to keep up the repayments.

Moreover, you can procure unsecured loans faster as compared to its secured counterpart. Above all, less paper work is involved with this loan type which reduces the hassles with this loan option.

So, according to your financial circumstances, you should select the loan option that can give you the adequate loan amount in order to consolidate your debts.

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