The Discovery Phase in a New York Medical Malpractice Lawsuit: What to Expect at Your Deposition

What Is the Discovery Phase?

Discovery is the pre-trial phase of a lawsuit during which both sides gather evidence. In New York medical malpractice cases, discovery typically includes:

• Document discovery: Both sides exchange relevant documents, including medical records, hospital policies, employment records, and expert reports. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
• Interrogatories: Written questions that must be answered under oath. In New York medical malpractice cases, interrogatories are often limited.
• Depositions (Examinations Before Trial, or EBTs): Sworn, out-of-court examinations where attorneys question witnesses. Depositions are transcribed by a court reporter and can be used at trial.
• Physical/mental examinations: In some cases, the defense may request an independent medical examination (IME) of the plaintiff by a doctor of their choosing.
• Expert discovery: Both sides exchange expert witness information and reports. In New York, expert witnesses are typically disclosed before trial, and their qualifications and opinions are exchanged.

The Deposition (Examination Before Trial)

The deposition -- formally called an Examination Before Trial (EBT) in New York -- is the most important part of discovery for the plaintiff. During the deposition, the defense attorney will question you about:

• Your background: Your education, employment history, family, and general background.
• Your medical history: Your medical history before and after the alleged malpractice, including pre-existing conditions, prior treatments, and subsequent treatments.
• The events at issue: What happened before, during, and after the medical treatment at issue. The defense attorney will ask detailed questions about your interactions with the healthcare providers.
• Your injuries: The nature and extent of your injuries, how they have affected your daily life, work, and relationships, and what treatment you have received for them.
• Your damages: Your medical expenses, lost wages, and other economic damages.
• Your theory of the case: What you believe the healthcare provider did wrong and how it caused your injury.

How to Prepare for Your Deposition

Proper preparation is the key to a successful deposition. At MDLaw Firm, we prepare every client by:

• Reviewing your medical records: We review your medical records with you before the deposition so you are familiar with what they contain and can answer questions accurately.
• Explaining the process: We explain the deposition process, the types of questions to expect, and how to answer them effectively.
• Conducting a mock deposition: We conduct a mock deposition, asking you the types of questions the defense attorney will ask, so you can practice your answers.
• Reviewing your prior statements: We review any prior statements you have made (e.g., to insurance companies, in other lawsuits) to ensure consistency.
• Discussing the strengths and weaknesses of your case: We discuss the strengths and weaknesses of your case so you are prepared to address them.

Tips for a Successful Deposition

Here are some key tips for a successful deposition:

• Tell the truth: Always tell the truth. If you do not remember something, say so. If you do not know the answer, say 'I don't know.' Do not guess or speculate.
• Listen to the question: Listen carefully to each question and make sure you understand it before answering. If you do not understand a question, ask for clarification.
• Answer briefly: Answer the question asked, and no more. Do not volunteer information that was not asked for.
• Do not argue: Do not argue with the defense attorney. Remain calm and professional, even if the questions are challenging or adversarial.
• Take your time: Take your time before answering. There is no rush. A brief pause before answering allows your attorney to object if necessary.
• Do not guess: Do not guess at distances, times, or other details. If you do not know, say so.
• Be consistent: Be consistent with your prior statements and your medical records. If there are inconsistencies, be prepared to explain them.
• Take breaks: You can ask for a break at any time. If you need to use the restroom, or if you need to consult with your attorney, ask for a break.

What Happens After the Deposition

After your deposition, the discovery phase continues with:

• Depositions of other witnesses: The defense attorneys will depose other witnesses, including the healthcare providers involved, other treating physicians, and expert witnesses.
• Expert discovery: Both sides exchange expert witness information and reports. Expert witnesses will be deposed about their qualifications and opinions.
• Independent medical examination (IME): The defense may request an IME, where a doctor of their choosing examines you and provides a report.
• Motions: Both sides may file motions, including motions for summary judgment (asking the court to decide the case without a trial).
• Settlement negotiations: Discovery often leads to settlement negotiations, as both sides learn the strengths and weaknesses of their case.
• Trial preparation: If the case does not settle, both sides prepare for trial. [Link to: /how-case-evaluation-works]

How Long Does Discovery Take?

The discovery phase in a New York medical malpractice case typically takes 12-24 months, but it can take longer in complex cases. Factors that affect the timeline include:

• The complexity of the case
• The number of parties and witnesses involved
• The volume of medical records and other documents
• The availability of experts and deponents
• Court scheduling and delays
• Whether the case settles during discovery

Your Role During Discovery

During the discovery phase, your role is to:

• Attend your deposition: Be prepared, tell the truth, and follow your attorney's guidance.
• Provide information: Provide your attorney with information about your medical history, employment, and the events at issue.
• Attend the IME: If the defense requests an IME, attend the examination.
• Review documents: Review your medical records and other documents with your attorney to ensure accuracy.
• Stay in communication: Stay in communication with your attorney throughout the discovery process and promptly respond to requests for information.
• Be patient: Discovery takes time. Be patient and trust your attorney to guide you through the process.

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.