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Does the Doctor have to Answer Questions Based on Assumed Facts

By Rosenberg, Minc, Falkoff & Wolff, LLP. posted in Blog Uncategorized on Sunday, June 28, 2015.

Should the Doctor Answer Questions that are Based on Assumed Facts

Should the Doctor Answer Questions that are Based on Assumed Facts

In a medical malpractice case, the plaintiff's lawyer is questioning the doctor during a deposition, and he asks the doctor to assume a certain set of facts to be true. The doctor interrupts the lawyer, and says he does not agree that the facts are true. Does the doctor have to answer the lawyer's hypothetical question when he disagrees with the lawyer's set of facts?

The answer is yes, the doctor has to answer the question. According to the law, the plaintiff's lawyer is permitted to ask hypothetical questions during the pretrial questions and answers session known as a deposition. The deposition session takes place in the attorney's office, in the presence of a court reporter, and the answers are given under oath.

At this deposition, the attorney will ask the doctor to assume certain facts to be true, and then answer the questions asked. The lawyer will go ahead a give the doctor a list of facts that he believes is true. After that the lawyer will ask the doctor hypothetical questions.

The Doctor is Obligated to Answer

For instance, the lawyer can ask, "Assuming the following facts are true, then would not treating a patient using this procedure would be a violation of the basic standards of medical care?" "Yes or no?" Now what if the doctor rather than going along with the assumed facts turns around and says that he disagrees with the set of facts and what the purpose of this question.

What should the plaintiff's lawyer do in such a situation? Should he change the set of facts, or should he argue with the doctor? The answer is no, the plaintiff's lawyer does not have to do any of these things, as the doctor is required and obligated by law to answer the questions as they are phrased. The plaintiff's lawyer might change the facts a little bit, if the doctor keeps objecting to them, but ultimately the doctor's attorney will tell him that he has to assume the set of facts to be true and answer the questions accordingly.

It does not matter if the fundamental structure of the question is vehemently opposed by the doctor.

Why Use Hypothetical Questioning?

The purpose of such a line of questioning is that the plaintiff's lawyer is using those facts that he believes to be true, which will be proved by the evidence and testimonies that will come later during the trial. This means that if these facts are proven true later and the jury finds them to be true, then the lawyer would want to hear it in the doctor's own word that treating the patient in this way was a violation of the basic standards of medical care.

The important aspect is the lawyer will be using the doctor's own words, which will be extremely powerful to the jury. Based on this reasoning, if ultimately at trial, the jury believes the plaintiff's side of the facts, then the lawyer can show to the jury the doctor's pretrial testimony where he has acknowledged and admitted that treating the patient in this particular way was definitely a departure from good and accepted standards of medical care.

In other words, if the doctor does not agree with the plaintiff's set of facts, it is fine, but he still has to answer the lawyer's question. The point is to get to the truth and there is more than one way to get there. The doctor should be expecting this strategy as well since his attorney should have told him to expect this line of questioning.

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