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Using a Transcript at a Medical Malpractice Trial

A transcript is nothing more than a booklet containing questions and answers given under oath. Typically, this information is gathered in pretrial testimony, which is a question and answer session called a deposition. This transcript can be quite powerful weapon during the trial.

How a Lawyer can Use the Transcript

Here is an example of how the transcript can be used during the doctor's cross-examination. The doctor comes to the witness stand, and testifies for the defense. Let us presume he testifies that the failure to recognize a hole in the bowel is not medical malpractice. The following would be the possible exchange between the lawyer and the doctor.

Lawyer: Doctor you have testified that it is your opinion that the failure to timely recognize and treat bowel hole during the course of this surgery is not malpractice. Is that true?

Doctor: That is true.

Lawyer: Doctor in your opinion this represents no risk of that particular surgery involved in this case. Is that true?

Doctor: Yes.

Lawyer: Under no circumstance do you believe that it is possible for a surgeon to recognize this hole during the course of this particular procedure.

Doctor: Yes.

Lawyer: Do you agree that if the surgeon saw it and failed to recognize it during the surgery it would be in your opinion a departure from impressive and accepted care.

Doctor: Yes.

The lawyer is trying to lock the doctor into his testimony so that the doctor does not have a chance to contradict what he has just testified. The lawyer has the deposition transcript, where the doctor has said something completely different from what he has just testified during trial. The lawyer will now continue the cross examination:

Lawyer: Doctor isn't it true that you gave testimony in a previous case involving failure to diagnose and treat a bowel perforation during a surgical procedure. If you recall the procedure was the same as this. In that case, you were called to give testimony as the plaintiff's expert, and you were advocating on behalf of the injured victim. In that particular case, you were asked the very same question and you had agreed that failure to diagnose and treat bowel perforation during the procedure is considered departure from basic and accepted medical care.

Discrediting the Witness with the Transcript

Now even if the doctor says he does not remember, the lawyer can show him and the jury, the transcript of the testimony he had given. It clearly shows the testimony he had given previously, and how it contradicts the testimony, he has currently given against the injured victim.

This is a powerful message to show to the jury that the medical expert has testified in a very different way in a similar circumstance. This way it can be shown to the jury that the doctor has now lied or contradicted himself. The jury will then have doubts about the credibility of the witness, and may not be so sure about the witness's professional opinion.

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