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Do you know why we use hypothetical questions when we question a medical expert in a malpractice
trial here in the state of New York? Would you like to learn why? Come join me as I share
with you that information. Hi. I’m Gerry Oginski. I’m a New York medical malpractice
and personal injury trial attorney practicing law here in the state of New York. When a
medical expert takes the witness stand in order to support our position or to support
the defense’s position, I as the attorney have an opportunity to ask the doctor a number
of questions. Importantly, I want to be able to ask the doctor questions about his or her
opinions and conclusions that they have reached as a result of reviewing the patient’s medical
records. Now why would I do that? Because I’m required to use a medical expert to
support our position and the defense likewise does the same thing. Now a doctor is going
to come to certain conclusions after reading all the records, reading the testimony in
the case. But now, when they’re on the witness stand, I have an opportunity to test those
conclusions, test their opinions. And one of the ways to do that is by testing what
opinions they’ve reached as a result of certain facts that they believe to be true.
So, here’s a perfect example. “Doctor, I want you to assume that the following facts
are true.” And now I go ahead and give them an entire recitation of what the facts are
as we believe them to be. “Doctor, assuming those facts to be true, would you agree that
in this instance if the doctor did not do A, B and C it would be a departure from good
and accepted medical care? True?” The doctor will have to agree with me assuming that those
facts are true. And why do we do that? Well we do that to show to the jury that these
are our claimed facts and ultimately if the jury believes our set of facts, now they have
additional support from this medical expert (even though he may be the defense’s expert).
Now likewise, the defense is going to do the same thing. They’re going to turn it around
and say, “Doctor, I want you to assume that those facts are not true but instead these
set of facts are true. And in those circumstances, if these are other set of facts are true,
would you agree that nothing was done wrong here?” Yes, I would. So ultimately, it becomes
a decision for the jury to decide which set of facts the jury believes. And if they believe
our set of facts based upon the hypothetical questions that I have posed now they have
additional support, not just from our own expert but from the defense’s own expert
who has agreed with us. And likewise, if they believe the defense point of view then obviously
they’re going to side with the defense. So asking a hypothetical question is a key
way to ask the expert to assume our set of facts as being entirely true. And if that’s
the case, they will have to agree that there are departures from good and accepted medical
care and that those departures or that wrongdoing then caused my client harm and injury. So
why can we use hypothetical questions? Because the medical experts were not present at the
time treatment was rendered and we don’t truly know exactly what happened except for
the testimony that the parties have given. Each side is telling a slightly different
set of facts. So if we now ask an expert to believe our set of facts and the jury believes
it, now we have additional support. And that’s a key strategic move that is used in every
single medical malpractice case here in the state of New York. So why do I share this
with you today? I share it with you just to give you an insight and an understanding into
some of the strategies and tips that go on during the course of a medical malpractice
trial here in the state of New York. You know, chances are you have questions and concerns
about your own matter and if your matter happened in New York, what I encourage you to do if
you have legal questions is pick up the phone and call me. This is what I do every single
day and I welcome your call. You can reach me at 516-487-8207 or by email at lawmed10@yahoo.com.
I’m Gerry Oginski, here in New York. Thanks for watching.