In a medical malpractice case, the defense attorney strongly denies that his client has done anything wrong, until the plaintiff's lawyer finishes questioning the doctor at pre trial testimony. In this case, the plaintiff has suffered significant injury following a colonoscopy procedure.

While the plaintiff claimed that the doctor had violated the basic standards of medical care, the defense lawyer was very confident that there was no case and he even says that he is going to ask the judge to dismiss the case before it even goes to trial. The plaintiff's lawyer on the other hand is equally confident and challenges the defense lawyer to go ahead with his request for dismissal.

Deposition Testimony is Critical

However, the defense lawyer completely changes his mind after the deposition has taken place, and is no longer confident about the case. Deposition is a question and answer session that is held under oath, much before the trial. During the deposition, the plaintiff's lawyer had an opportunity to question the doctor about what caused significant injuries to his client. The deposition provided critical pre trial sworn testimony from the doctor, which the plaintiff lawyer was going to use at trial.

Admission of Violation of Standard of Care

The plaintiff's lawyer questions the doctor during deposition, so that he can use the doctor's own words about what the standards of medical care were in this colonoscopy procedure, and then go through with the doctor about what was done in this particular case. This type of questioning is done to determine whether there were any violations of basic standards of care.

The plaintiff's lawyer managed to make the doctor admit to three basic violations of standards of care during deposition. After the deposition was concluded, the defense attorney realizes he had misjudged the whole thing, and now wants to talk about a settlement and resolving the case before it goes to trial.

This shows that the defense attorney's position at the very beginning might be very different from what happens when he truly learns about the facts of the case during deposition. The skill of questioning of the plaintiff's lawyer during the deposition can do this. First, the lawyer will ask questions to the doctor about what are the expected standards of care in a colonoscopy procedure.

Once the standards of care are established in the doctor's own words, the lawyer will ask a question to the doctor about how the procedure was carried out. This will clearly reveal the violations of medical care standards, which is again provided by the doctor.

The Defense can Pivot

The testimony given during the deposition can be used at trial as evidence. The defense lawyer knows this, and in this case, the doctor has practically admitted to the violation during the deposition. Hence, the defense can always change its stance after a deposition. In this case, the plaintiff's lawyer was able to make the doctor admit to the violation; however, it can go the other way, as well. The defense lawyer might also be able to concoct a strong defense that may come as a surprise for the plaintiff. 


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