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In New York You cannot Question the Defense's Medical Experts during a Deposition

In your medical malpractice case, can you question the medical experts of the defense during a pre-trial testimony in New York?

The short answer is no. In New York, no set and definable procedure exists that allows the plaintiff the opportunity to question the defense's medical experts, who will be brought in at trial to testify against the plaintiff. Your lawyer will obviously have the opportunity to question them during cross-examination at the time of trial.

However, during the course of the discovery phase, from the time you start your medical malpractice lawsuit, all the way up to trial, no set definable procedure that gives you the ability to go ahead and question the witnesses for the defense, who are coming in specifically as medical experts. These witnesses are different from the people whom you are suing, whom you believe have caused you harm and injury due to violations of basic standards of medical care. These can be doctors and hospitals, and you are entitled to question them during depositions or pretrial testimony.

No Set Procedure in New York that Enables Plaintiff to Question Defense's Medical Expert Witnesses before the Trial

Since the defense has to bring in medical experts to defend their case, why can't the plaintiff question them during the deposition and cross-examine them before the trial begins? In personal injury cases, the plaintiff is allowed to question the witnesses of the defense during the deposition. Additionally, in many other states, attorneys have the opportunity to question the defense's medical experts during a pretrial testimony known as a deposition. However, in New York this procedure does not exist.

Exception to the Rule

In New York however, there are a couple of exceptions to this rule, and it will only happen when the medical expert is physically incapable of coming into court to testify. For instance, this doctor may have to perform surgery the entire day of the trial, and there is no way of moving any of the surgeries to another date. In such a situation, the doctor can give his opinion and reveal what exactly he is testifying to. He can invite the attorneys to his office and they can question him, as if it were a trial.

In such instances, the attorney will have to use a specific procedure to notify everybody involved in the case that the doctor cannot come in at trial, and instead they will be using his videotaped deposition in order to go ahead and give the testimony. In such limited instance, the plaintiff's lawyer will have the opportunity to question and cross-examine this medical expert during the course of pretrial testimony or deposition.

Risk to the Plaintiff

Hence, the usual practice is that the plaintiff's lawyer will not be able to question the defense's medical expert witnesses before the trial during a deposition. This could be a disadvantage, since the plaintiff does not know what points the expert might make during the trial, and if they are strong points, it will could sway the jury in favor of the defense.

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