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Why Ask Hypothetical Questions in a Medical Malpractice Case

When a medical expert takes the stand, either for supporting the victim or defense's position, the two lawyers have the chance to ask the witness several questions. One of the important questions would be asking the doctor, his opinion, and conclusions he has reached after reviewing the medical records of the patient. The defense attorney will ask similar questions. The question is why the attorneys would do that.

The doctors would have come to certain conclusions after reading all the medical records and testimonies in the case. However, when these doctors are on the witness stand, the lawyers have the opportunity to test these conclusions and their opinions. One of the ways to do this is to test the opinions they have reached, because of certain facts that they believe are true. To take a practical example, the lawyer will ask the doctor to assume a certain set of facts to be true.

Cornering the Doctor

The lawyer will relate the facts to the doctor, which he feels are true. Now assuming the facts are true, the doctor will be asked if he feels that if the doctor did not do certain specific actions, it would have been a departure from good and accepted medical care. If the doctor assumes the facts to be true, he will have no other option but to agree with the lawyer.

Altruistic Intentions

Asking these hypothetical questions are necessary because it helps to show to the jury that these are the claimed facts of the plaintiff, and if the jury happens to believe those same set of facts, the testimony of the doctor would provide additional support, even if he is one of the defense's expert witness. The defense lawyer will also do the same thing, by turning it around, and making the doctor assume his set of facts. Hence, if these set of facts are assumed to be true, the doctor will have to agree there was no wrongdoing.

Ultimately, it will come down to which set of facts the jury believes. If the jury believes the facts presented by the plaintiff's attorney, they would have the support of the testimony provided by not only the plaintiff's experts but by the defense's expert as well. Similarly, if they believe the facts presented by the defense, they will be siding with them.

Doctor's Error

Hence, asking hypothetical questions is a clever strategy to ask the defense expert witness to assume that the facts presented by the plaintiff's lawyer are true. When the witness assumes as asked, he will have to agree that there was departure from good and accepted medical care, and that wrongdoing caused the plaintiff harm and injury.

The Main Purpose of these Types of Questions

These hypothetical questions are used because the expert witnesses were not present when the treatment was rendered. Since what exactly happened is not truly known, except from the testimonies of the witnesses from both sides, and when the witness agrees with the lawyer, the jury has additional support to go along with the facts that they think are right. Hypothetical questions are therefore key strategic moves used in fighting medical malpractice cases in New York.

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