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  • $30.1 Million NYC - Medical Malpractice Case
  • $15 Million Manhattan - Medical Malpractice Case
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  • $5.5 Million Bronx - Birth Injury Accident
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New York City Medical Malpractice Law Blog

Notes Prepared by a Defense Medical Expert could be a Minefield

By Rosenberg, Minc, Falkoff & Wolff, LLP. posted in Medical Malpractice on Friday, June 05, 2015.

Whether the Witness has Prepared any Notes

Whether the Witness has Prepared any Notes

During the course of a trial in a medical malpractice case, the defense's medical expert will come in to testify. After he has been questioned by the defense lawyer, your lawyer will have the opportunity to cross-examine this witness. One of the most critical items your lawyer will be asking him is what notes he has prepared while he was examining your medical records, and whether he has brought them along with him to court.

The Defense Witness will Deny Preparing any Notes

The defense's expert witness will usually deny writing any notes, to which your lawyer will ask him whether he has a photographic memory. Your lawyer will keep asking the witness about how he is able to remember all the points in your medical records without keeping any notes. Defense medical experts typically have to review hundreds of pages of medical records, and there is no possible way that they are going to remember every single detail unless they take notes.

That is only logical.

However, almost all expert witnesses of the defense will turn around and say that they do not have any notes. This is because, if they admit that they have taken notes, your lawyer will have the opportunity and legal right, to see every single note they have written. Your lawyer will have the opportunity to cross-examine the defense's witness based on every single note he has taken, every document, every comment, and every single observation that he has made.

Notes can Open Up many Possibilities

The doctor who is the defense's witness obviously does not want your lawyer cross-examining him on every note that he has made, and therefore he will conveniently deny making any notes. The defense attorney will also not want such a thing to happen, because once your lawyer has a hold of such notes, he can have field day questioning the witness about everything that he saw, observed, and wrote down. Your lawyer can spend a magnificent deal of time going through every entry that the witness has made in his notes.

Therefore, experienced defense attorneys will inform their doctor witnesses during preparation that they should not take any notes or at least not reveal keeping notes when they come to testify. If the doctor says that he had prepared or kept notes while reviewing your medical records, then your lawyer has every right to see them and question him about everything that he has written down while scrutinizing this case.

If your lawyer is able to do this, there are stellar chances of discrediting the witness on some points during the cross-examination. The availability of notes can open up many topics that your lawyer can question the witness about, and this can increase the chances of the witness contradicting himself. Once the defense's witness has contradicted himself on any point, he will immediately start losing credibility with the jury, which will certainly strengthen your case.

Powerful Legal Avenues that could be Opened

Your lawyer will therefore try hard to get the defense's witness to accept that he has the notes in his office, car, with him, or at his home. With these notes, your attorney can use them since they could be very helpful in questioning the witness further.

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