Wild

DOCTORS GONE

Gerry M. Oginski, Esq.

Word Association Publishers

www.wordassociation.com
Copyright © 2009 by Gerry M. Oginski, Esq.

All rights reserved. No part of this book may be reproduced, stored in a

retrieval system, or transmitted by any means, electronic, mechanical,
photocopying, recording, or otherwise, without written permission from
the author.

Printed in the United States of America.

ISBN: 978-1-59571-396-4

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 DOCTORS GONE Wild
Preface

My first trial

My first trial was in a run-down office building in Brooklyn

Civil Court located at 111 Livingston Street. I was a newly
minted lawyer in 1988 who had just passed the bar exam. It
was a car accident case and each driver claimed they had the
green light. Two things stand out in my mind from that very
first case: (1) The jurors were very friendly and willing to
overlook the fact that I was so new at this, and (2) The judge
in the case decided to openly contradict one of my key
witnesses. The judge was personally familiar with the
neighborhood where this accident happened. My key witness
was asked to describe the street, the parking, nearby parks
and buildings. The judge interjected and openly contradicted
this witness, stating that buildings and parking around that
intersection were not as they were described by this witness.
Despite my vigorous objections, the Judge continued to
contradict my witness in front of the jury.

What was the take-home lesson from that trial? That no

matter how much I object to the Judge interjecting himself
into a witness’ testimony, the Judge still over-rules you and has
the absolute discretion to control everything that goes on in
the Courtroom.

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My most memorable trial

My most memorable trial was held in Manhattan early in my

career. I represented a urologist who was accused of leaving
a needle tip inside a patient during surgery. The trial had six
or seven witnesses and we expected it would take three to four
days to try, after picking a jury. I was totally wrong. The trial
was compressed into one day. This Manhattan Judge was
notorious for pushing trials quickly and made sure all
witnesses were lined up on the same day, one after the other.

My most incredible learning experience

Without a doubt my best learning experience happened in

my second year of practice, when I was given a case to try
with significant liability and damages. I was representing an
obstetrician who was accused of improperly performing a
delivery causing permanent brain damage to a little baby girl.
The attorney who represented the injured victim was one of
the best trial lawyers in New York, if not the country. Needless
to say, at the age of 27, going up against one of the best
lawyers in New York gave me significant reason to pause. My
boss at the time strongly encouraged me to give it my all and
learn as much as I could, while vigorously defending the
obstetrician.

Jury selection was eye opening. I learned more during that

segment of the case than I had ever learned in a classroom or
from any legal textbook or any other case I had tried up to
that point.

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I’m pleased to say that we settled the case shortly after trial
started, as we could not realistically defend the case.

My first real legal job

It was for a summer internship at a medical malpractice &

personal injury Wall Street defense firm where law school
students were herded into the office in groups. The
application process included evaluating and analyzing a
hypothetical case, meeting with two trial attorneys separately,
and then if they liked what they saw, you were invited back for
an interview with the boss and his son. I was one of three
people who were invited back and then offered summer jobs
in the summer of 1987.

At the end of the summer I was offered a full-time position

after I graduated from law school. After I graduated law
school, took the bar exam and went on my honeymoon, I
started my legal career at this Wall Street law firm handling
medical malpractice and accident cases. The firm was
amazing. It was a great place to get real-world experience.
The pay was ridiculously low and the hours were very long.
In exchange, the boss provided a fantastic way to learn and
gain experience. My colleagues in other firms had to wait
many years before they could represent doctors at depositions
and at trial. My firm had a novel incentive program too. For
every case you won, they gave you a tie. Yes, a tie. I kid you
not. I accumulated a lot of ties while I was there, and have to
say that working at this well-known Wall Street law firm was
worth every moment.

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Some might say it was similar to doing a surgical residency,
where you work your behind off night and day. Others have
said it was like being in the Army. You gave them four great
years, and then moved on. Working at this firm gave you great
trial experience and incredible exposure to brilliant legal
minds and outstanding trial lawyers. The firm was well
known in every Court I ever appeared in. Every lawyer I
know who worked there and went into plaintiff ’s work
(representing injured victims) has been successful. One of the
lawyers, who was a year ahead of me, became the President
of the New York State Trial Lawyers Association.

Moving on

After four years of sweat and toil, I decided that I enjoyed

representing injured victims more than defending doctors,
hospitals and people who were sued. I moved on to a small
plaintiff ’s law firm on Court Street in downtown Brooklyn.
The two partners were young successful guys. One lawyer was
the ‘trial guy’; the other was the ‘in-house’ guy. That’s usually
how it worked in a small firm. You had to have somebody in
the office all the time to handle the administrative paperwork,
and you also had to have someone in Court each day
handling the conferences, motions and trials. These two
attorneys were very good at what they did and I learned a lot
from them.

Here are the two most memorable things I recall while

working for these two Court Street lawyers:

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(1) When I was offered the job, I respectfully asked one of the
attorneys (who smoked and was smoking during my
interview) that if I went to work there, he would have to
extinguish his cigarette while I was in his office. I was very
appreciative of the fact that he agreed to this. Otherwise, I
never would have taken the job, as I can’t tolerate cigarette
smoke.

(2) I learned how to organize a file. In fours years of doing

defense work, nobody ever taught me how to properly
organize a file. I’d spend hours searching for documents when
they should have been easily accessible. I still use this
technique to organize my legal files today.

Moving on to greener pastures

It seems that early in my career, I stayed in places for at least

four years. I really enjoyed my four years in downtown
Brooklyn representing injured victims. I learned how to
screen potential cases, and handled so many depositions and
trials that I was always busy either in Court or in the office.

The beginning of a new dawn

One day while waiting to start jury selection on a case in

Brooklyn, I ran into a friend of mine from law school. We
hadn’t seen each other in a while, and it was nice catching up
on our professional and personal lives.

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We also had another connection. My wife had assisted in the
delivery of his first child. We got to talk and he was telling
me he was interested in branching out into medical
malpractice. Before you knew it, I left Court Street for the
suburbs of Garden City where I opened a satellite office of a
large personal injury firm in Queens. I handled all of the
firm’s medical malpractice cases, from start to finish.

Six years later, I decided it was time for me to open my own

firm, which is exactly what I did.

The articles I’ve collected here represent more than two years
worth of articles I’ve written. These articles have been posted
online, on my website and also in my monthly newsletters.
The articles are designed to give you information you need to
know about medical malpractice & accident cases here in the
State of New York. Being an informed consumer is the best
way to make an informed decision about hiring a lawyer and
proceeding with a lawsuit.

Good luck in your journey, and if you have any questions,

please feel free to call me at 516-487-8207 or send me an
email at lawmed10@yahoo.com

Gerry Oginski

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New York Medical Malpractice
10 Reasons You Shouldn’t Sue Your Doctor;
An Insider Explains

1. You like your doctor

So, what’s wrong with that? Nothing. Most of us like our
doctors. That’s why we trust them and keep going back to
them for treatment. But should the fact that you like your
doctor prevent you from seeking compensation when he or
she committed wrongdoing that caused you physical and
emotional injury?

The law in New York permits anyone who has been injured
by another to bring a lawsuit for compensation. This law
originated from common law and goes back hundreds of
years. In fact in some religions there is evidence that this type
of law goes back thousands of years. It makes good common
sense. If another person causes you harm, you are entitled to
obtain money to pay for your medical expenses, your lost
earnings, your future lost earnings, the damage to your
property, and of course, compensation for the pain and
suffering you endured.

So, should the fact that you like your doctor prevent you from
bringing a lawsuit? It might make you feel uncomfortable, but I
guarantee that when you start to think about your disabling
injuries and how your doctor caused them, the anger and hostility
you feel will usually outweigh your fondness for your doctor.

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2. What good will the money do for you?
This is a common rhetorical question that defense attorneys
often ask plaintiff ’s lawyers. “The money won’t bring your
loved one back,” “The money won’t make you whole again,”
“The money you’re asking for isn’t going to change
anything...”

However, money is the only thing that our justice system

allows us to recover when an injured victim sues their
wrongdoer. While those comments above may all be true, we
are prohibited from taking justice into our own hands.
Therefore, what else can we obtain for the injured victim?
Money is the only thing that allows us to pay the medical bills
that were generated as a result of the wrongdoing. Money is
going to make the victim more financially secure. Money will
help the injured victim with ongoing medical care and
rehabilitation. The injured victim will not be a burden on a
City or governmental handout. Money will help his children
go to school or camp. Money may help with modifications
needed in his home- such as a wheelchair ramp or modified
kitchen appliances.

Money can never make us whole, or replace the agony and

suffering that was caused by a doctor or a hospital. But the
money is supposed to make those wrongdoers think twice
about doing that same action again, and hopefully prevent
the next person from being a malpractice victim.

3. Your doctor’s reputation will be tarnished

Contrary to popular opinion, (or at least from the doctor’s

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insurance company) this is not an accurate statement. Most
people living in a civilized society recognize the right to sue.
The fact that a doctor has been or is sued is not that
significant. If you ask a doctor if they’ve been sued, they will
often be quick to explain how the case had no merit.
Importantly, the physician will still continue to practice
medicine and there will usually be no disciplinary action
taken as a result of a civil medical malpractice lawsuit. The
belief that a doctor’s reputation will suffer a blemish if sued,
is simply not correct.

4. Your doctor will be banished from his community

Once again, this statement is not true. The doctor will
continue to practice medicine (even if they lose the
malpractice suit against them, and are required to pay the
injured victim money). The doctor will not lose their license,
and in all probability, the award will not be reported in the
local papers, and most of his patients won’t even know of the
lawsuit or the award.

5. Your doctor will shut his medical practice

No he won’t. He might be outraged that he has to defend a
lawsuit and take time away from his practice for a few days,
but there is no reason for him to shut his medical practice.
In very extreme cases where the physician is a threat to the
health and well being of his patients, the New York State
Department of Health can and will shut down the doctor’s
practice and revoke his license to practice.

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But, in the majority of cases, this does not happen, and the
doctor continues on with his practice and his life.

6. Your doctor may lose his license

Not true. A civil lawsuit in New York has no effect on whether
a doctor does or does not lose his license to practice medicine.
In order for a New York doctor to lose his license, the New
York State Department of Health investigates a complaint of
wrongdoing. After extensive investigation and after a hearing
where the physician gets to explain what happened and why,
the Department of Health reaches their own conclusions
about whether treatment was rendered in accordance with
good medical care or whether there were deficiencies.

The options to punish or cure the deficiencies are many, and

only as the most extreme- and last resort option would the
Health Department revoke a physician’s license. But simply
by bringing a lawsuit against a physician for monetary
compensation does not affect his license to practice medicine.

7. Your doctor may alter your records

Believe it or not, this has been known to occur in rare
instances. When it does, the attorney representing you may be
able to prove it. If your lawyer is able to prove that your
doctor altered your records, the doctor could suffer significant
penalties and could lose his license to practice medicine. The
fact that he may or may not alter your records should not
prevent you from investigating and/or pursuing an action on
your behalf. There are usually other ways to determine what
treatment was rendered, and often such action by a doctor

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can help your case by showing the extent to which the doctor
tried to cover up the wrongdoing.

8. Your doctor may apologize and tell you it was all

a mistake
There are recent medical and insurance studies that have
confirmed that when doctors and hospital staff are
straightforward and honest about what happened, patients
and their families tend to understand that ‘not everyone is
perfect’. In fact, some hospitals encourage the doctors to fess-
up and tell the patients they screwed up, and apologize, and
arrange to have the hospital immediately reconcile financially
with the patient and his family. The studies indicate this works.

Does that mean that you shouldn’t sue because the doctor
apologized? Not necessarily. An apology may not solve your
problems. You need to decide whether such an apology is
sufficient. Most people will tell you it’s not.

9. Your friends and family may think you’re a gold-

digger
If you live your life concerned about what your friends and
family think, then maybe you shouldn’t sue-under any
circumstance. Your friends have not experienced what you
have gone through. Nor do they live with the constant pain
and disability that you have. They may not truly understand
what you will live with for the rest of your life.

Some folks simply don’t want their friends and family to know
they’re involved in a lawsuit. The reasons are endless. “I don’t

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want anyone knowing my business.” “I don’t want my
neighbors knowing how much of an award I received.” “I
don’t want my family members asking me for money- this is
for my future- I can’t work anymore, and I can’t afford to give
it away.” “I don’t want my relatives to argue with me about
why I sued my doctor.”

You must decide for yourself whether these concerns

outweigh your legal right to bring suit and recover money for
your injuries.

10. Your injuries aren’t that disabling

There are cases where the injuries are significant, but have
cleared up after many months or years. The fact that you may
no longer be permanently disabled is a factor to determine
how much your case is worth. If you are no longer disabled-
we congratulate you and your success in overcoming your
injuries. If you can do those activities that you used to do, we
are extremely pleased with your recovery. You should know
however, that such success means that the value of your case
may be limited to the time you were injured and disabled.
Most people would agree with this result. You only can
receive compensation for the time you were injured and
disabled.

Many injured folks may make a recovery, but still be unable

to do all of those daily life activities they used to do. Where
there is an ongoing problem or disability, the value of your
case is generally greater than where you have totally healed.

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A UROLOGY DISASTER IN NEW YORK

New York Medical Malpractice Trial Attorney Gerry Oginski explains

what happened when a young man went to a urologist to fix a complaint
of difficulty urinating.

I want to tell you about a man I recently had the privilege of

representing. The case involved the improper insertion of
stents into his penis causing total destruction of the tube that
carries urine from the bladder down into and through the
penis. This tube is called the urethra.

This man’s unfortunate journey began when he started having

difficulty urinating. He saw a urologist (a specialist who treats
diseases of the urinary system) who, after examining him, told
him that he had abnormal scar tissue (called a “stricture”) in
his urethra that needed to be cut open. This procedure is
known as a “urethrotomy.” The doctor inserts a tube into his
penis and then once the tube is in the correct place, then
inserts a knife within the tube to cut away the scar tissue.

The problem with this procedure is that the scar tissue is virtually
guaranteed to return weeks or months later. Why? Because this
procedure is a band-aid. It only removes the scar tissue, but does
not eliminate the reason why it keeps coming back.

Three months later, my client was back in the urologist’s office

with the same exact complaints: Difficulty urinating, straining
and pain. The doctor again recommended the same “cold-
knife urethrotomy.”

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Despite the doctor’s attempts to get rid of the scar tissue, the
same problems came back a few months later. Here’s where
things started to go wrong.

After the second procedure, when the urolological symptoms

returned, he should have been sent to a urologist who
specializes in reconstructive surgery. Had the happened, he
would have had a simple two hour surgery to remove the
section of urethra with the scar tissue and replace it with skin
from the inside of his mouth, known as a “buccal mucosa skin
graft.” This procedure would have had a 90% success rate
with a well-trained surgeon.

Instead, the original treating urologist told my client he

required a unique device known as a “stent” to be inserted
into his penis, into an area called the “bulbar urethra.” This
stent is a coiled steel mesh, that when placed into the urethra,
springs open to hold the urethra open. Unfortunately for this
young man, this clearly was the wrong device to use.

First, the stent was not meant for young men. Rather, it was
meant for old men who no longer have erections. The reason
is that in a young healthy man who still gets erections a stent
will cause excruciating pain. In an elderly man who no longer
is able to achieve an erection, the stent may be the right fix.
Second, this stent was not meant to be used for the amount
of scar tissue that my client had- in fact the manufacturer’s
own guideline clearly indicated it was not to be used for
strictures that were as long as my client’s stricture.

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To make matters even worse, after four weeks, my client had
such excruciating and terrible pain in his penis from the stents
that the doctor decided to try and remove the stents and insert
two new ones. The problem is that these stents are designed
to be permanent. Once inserted, layers of skin tissue grow
over the stents to hold them in place. They literally become
embedded within the urethra.

When the doctor went to remove the stents, he had to pull

the wire filaments out one by one since they do not come out
in one piece. Unfortunately, when he removed the stents, he
destroyed the inside of this man’s urethra. Instead of
removing the stents and allowing the urethra to heal, this
doctor decided that instead he’d insert two new stents during
the same procedure right back into the urethra, in a slightly
different location, thinking that would do the trick. However,
the only ‘trick’ it caused, was a total destruction of my client’s
urethra.

The pain where the stents were located became so unbearable

that my client thought seriously about committing suicide.
He obtained a second and third medical opinion, this time
with a reconstructive urological surgeon. My client was told
that his urethra was totally obliterated and he needed massive
reconstructive surgery to fix it.

CORRECTIVE SURGERY

Two surgeries, 17 months apart. The first surgery took 12

hours. The embedded stents had to be painstakingly

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removed. Since the urethra needed to heal for more than a
year, there had to be another location where the urine would
exit from his body during this time. The surgeon created
something called a “urinary diversion,” which is exactly what
it sounds like. The urine is diverted from the urethra and out
the penis, to a different location. The problem is that there is
no other natural way for urine to exit in a man’s body, so the
surgeon had to create an alternative opening. The only place
for this alternate way to urinate was to make a surgical hole
between his scrotum and his anus. Every time he needed to
urinate, he’d have to sit down on the toilet, like a woman, and
wipe every time. This was totally humiliating for him.

He also had to have a huge section of skin taken from his

thigh to use as a skin graft inside his penis for his new urethra.
After almost 17 months of healing, with no sex and no ability
to go swimming during this time, he had his second corrective
surgery. The urinary hole next to his scrotum was finally
closed. His urethra was reattached to his bladder and now
urine flowed correctly out through his penis. After two
months, he was remarkably better.

We alleged that the doctor never should have inserted stents

into this man’s urethra and doing so was a departure from
good medical care. Putting the stents in, taking them out, and
putting two new ones in destroyed his entire urethra. Had the
original urologist done the right thing and sent the patient to
a reconstructive urological surgeon after the second
urethrotomy procedure, this young man never would have
needed such an extensive reconstructive procedure known as
a “rescue urethroplasty.”
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The defense claimed that it was appropriate to use these
stents and that he still would have required a “urinary
diversion” regardless of when the corrective surgery took
place. The problem with this reasoning was that the defense
failed to take into account that before his urethra was totally
destroyed, he could have had a simple urethroplasty
procedure with no need to divert his urine.

CONCLUSION:

After months of trying to negotiate a settlement, and with trial

approaching within weeks, both sides agreed to try mediation.
It was only through hard-fought negotiation on both sides and
with the help of an experienced mediator, were we able to
reach a settlement that was agreeable to both sides.
_____________________

A DENTAL IMPLANT NIGHTMARE

The oral surgeon promised to give a patient a set of perfect

teeth. All he needed to do was get 10 dental implants on his
upper jaw, and 10 dental implants on his lower jaw. The
patient, who never had implants before, agreed. He wanted
a beautiful set of teeth. It had been many years since he had
good healthy natural teeth, and when he arrived in the oral
surgeon’s office for that first consultation, he had only seven
decaying teeth remaining in his mouth.

WHAT IS A DENTAL IMPLANT?

It is usually a titanium screw that gets screwed into the jaw. It

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creates the foundation upon which a permanent bridge or
crown will sit. Once the implant is screwed into the jaw, it
takes months to heal. After the healing period, a healing
collar is placed around the implant, and then a post is placed
on top of the implant. Once a post is put on, a fixed bridge
or cap (also known as a crown) can be attached to the post.

THE COST TO PLACE IMPLANTS

My client had been to a few different implant dentists and was
told that for six implants it would cost anywhere from $35,000
to $50,000. Since this man did not have the money to pay for
these implants, he held off, and continued to use his ill-fitting
denture that would fall out at the most inopportune times.

One day, while at work, my client saw an ad by this oral

surgeon promising inexpensive dental implants and great
results. The ad was intoxicating and held the promise of a
great set of teeth for only a fraction of the cost that most
other dentists were charging.

“IF IT SOUNDS TOO GOOD TO BE TRUE...IT IS”

This patient was quoted a price of $22,500 to put in 10
implants on his upper jaw, and 10 implants on his lower jaw.
Twenty implants total. All for the low, low price of $22,500.
That price also included the restoration for full porcelain fixed
bridges on both upper and lower jaws. What a bargain.

What the patient got instead was botched dental treatment.

To begin with, the oral surgeon failed to properly evaluate
whether this patient had sufficient bone for all these implants.

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He failed to identify where the nerves were in relation to
where he was going to insert the implants. Unfortunately for
the patient, the implants were put in too close together; they
were improperly angled; there were too many implants; he
put an implant into the patient’s sinus and never realized it;
he created a hole in the sinus and despite trying to fix it twice,
failed.

THE RECORDS DON’T LIE

The doctor’s dental records were worse than scribbles. They
had no useful information. The notes reflecting the doctor’s
comments after the dental implant surgery simply said
“Observe.” That’s it. No notes about patient complaints, what
type of examination he performed on that visit or any other
visit for that matter. No notes about what his treatment plan
was. Incredibly, while the patient was having the implants
inserted the doctor claimed that he would take one to two
intra-operative x-rays to determine if the implants were in
the correct place. Once he decided they were in the right
place, he would then inexplicably throw away the x-rays he
had taken. The doctor attempted to explain that he had no
use for the intra-operative x-rays once the implants were
embedded into the jaw.

The fact that the x-rays were technically the patient’s property
had no impact on this oral surgeon.

A DENTIST ABANDONS HIS PATIENTS

Months after the patient had his implants placed into his jaw,
he received a letter from this dentist announcing that he could

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no longer continue to provide dental services, giving various
excuses. Incredibly, the dentist failed to refer this patient, or
any other patient, to another oral surgeon to continue their
dental implant care. As a result, my client remained without
any teeth in his mouth for two full years.

Calls and letters to this oral surgeon requesting a refund of

cash that had been paid went unanswered. All efforts to
recoup money for the improper work and unfinished work
were ignored.

NEXT STOP: To an experienced New York dental

malpractice lawyer.

After two years of hard-fought litigation, I was able to

successfully settle this case on the day we were scheduled to
begin jury selection. I was prepared to bring in a dental
implant expert to explain to the jury how this dentist’s
planning, execution and post-operative care deviated from
good and accepted dental standards here in the State of New
York. As a result of those departures from good care, my
client suffered significant injury, requiring extensive sinus
surgery to correct the hole, and the implant lodged in the
sinus. He will require most of the implants to be removed,
and will have to start over again. All at an astronomical price,
and the possibility that removing the implants will cause
damage and injury to the jaw and nerves running through
the upper and lower jaw.

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The successful settlement will now allow my client the chance
to surgically correct the botched dental treatment he received
from this oral surgeon. Hopefully in the near future, after all
of his dental treatment has been completed, he’ll be able to
look in the mirror, and for the first time in many years, smile
and say “Good morning,” without feeling self-conscious and
worried what someone will think of a man without teeth.
_____________________

PLASTIC SURGERY
Can I Bring A Lawsuit Against My Surgeon If
He Destroyed My Breasts?

Q: I just had a breast implants put in and I don’t like the way
they came out. Can I bring a lawsuit against my plastic
surgeon if he won’t fix them for free?

A: There are two issues here. The first is your unhappiness

with the result of the breast implants. The second is whether
you can sue if he does not repair the first result for free.

First-the fact that you had breast implants suggests that you
were not satisfied with your physical appearance to begin
with. Breast implant and plastic surgery cases are inherently
bad cases for me to take because they involve subjective
feelings, opinions and impressions by the patient. Specifically,
the patient is not happy with how they appear initially, and
after the procedure, they are still not happy with the result.
Just because you are unsatisfied with the breast surgery results
does not mean that there was evidence of malpractice.

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There are always risks associated with any surgery. I am
positive that your plastic surgeon gave you a detailed form
called an Informed Consent sheet that described the
procedure. You may have also been given brochures or
reading material describing the risks, benefits and alternatives
to this breast surgery you were going to have. Again, I assume
that since you went forward with the surgery, you signed this
consent and recognized that there was a possibility the
outcome might not be perfect.

The second point is that you must address your displeasure

with your plastic surgeon. There are times when the doctor
will agree to revise the procedure at no cost to you. At other
times the doctor believes he or she did a good job, but other
factors contributed to the poor outcome, and he may not be
agreeable to revise the procedure for free.

Remember, you are free to bring a lawsuit, but the question

is whether your case really has merit, and whether it is
financially beneficial for you and your attorney to proceed.
In my opinion, I do not accept plastic surgery cases unless it
is clear, based upon expert medical review, that there are
departures from good care (not just that the patient is
unhappy with the outcome of their boob job, or nose job),
that the departures were a substantial factor in causing injury,
and that the injury is permanent.
_____________________

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COLONOSCOPY
“He Perforated My Colon, Do I Have a Case?”

The call comes in. “I had a colonoscopy, and the doctor

perforated my colon. I needed emergency surgery to fix it.
Now I have a colostomy bag, and I’ll need another surgery in
a few months to reverse it. Do I have a case?”

What do you think?

The short answer is no. The longer answer is still no and

here’s why.

Doctors who perform colonoscopies are aware that

perforating the colon (making a hole by mistake) is a known
recognized risk of the procedure. Obviously no doctor wants
to make a hole in the colon, but once in a while it does
happen. The fact that it happens is, in my opinion, and the
opinion of every physician I’ve ever talked to about it, is not
a departure from good care.

“But I was in the hospital for weeks, and I couldn’t eat solid
food, and I needed to change my bowel movements in this
disgusting bag...” Yes, that’s all true...but those injuries did
not result from a departure from good medical care. The
medical community recognizes that there are risks with every
procedure. This happens to be one of those risks associated
with a colonoscopy.

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“How come I heard that my neighbor had a case, and his
colon was perforated during a colonoscopy, but you’re telling
me I don’t have a case?” The reason your neighbor has a case
is because during his procedure the doctor created a hole in
the colon and failed to recognize it. The following day the
patient called the doctor complaining about belly pain and
back pain, and was ‘poo-pooed’ away by the doctor claiming
it’s normal to have discomfort after the colonoscopy. Two days
later, the patient spiked a fever and got very sick. Only after
calling the doctor’s office repeatedly to advise him of these
worsening problems did he suggest going to the emergency
room. In the emergency room your neighbor had an MRI,
which showed some type of fluid in his belly-where it
shouldn’t have been. Your neighbor was rushed into
emergency surgery where surgeons found a belly full of fecal
material (bowel movements) where it clearly should not have
been. After cleaning him out, they found the hole that was
made during the colonoscopy. Your neighbor then had to get
a colostomy bag and remain in the hospital for 10 days on
heavy-duty antibiotics.

Here’s the key to determining whether you have a

potential case:

The fact that there was a perforation during your colonoscopy

is, in all likelihood, not malpractice. It’s the FAILURE TO
RECOGNIZE the hole that is a departure from good care.
When the patient called to complain, the first thing the doctor
should have done is get the patient back into the office for an
evaluation. Additional tests may be ordered which may reveal

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the ongoing problem. If this fails to detect the problem and
the patient continues to complain, the next step is usually to
send the patient into the emergency room for a full work-up
and evaluation.

Only with proper and timely monitoring of the patient and

prompt attention to the patient’s complaints can a potential
tragedy be averted. So, do you have a case if there was a
perforation to your colon during colonoscopy? Unlikely. If
the doctor failed to detect the perforation, and you continued
to complain, and your condition worsened, then you need to
speak to an experienced medical malpractice attorney who
practices in the State of New York immediately. Remember,
never rely just on an article or something you read online to
tell you if you have a valid potential case. Instead, contact an
experienced lawyer who handles these types of cases on a
daily basis. Only after a thorough expert medical review of
your records will you know for certain whether you have a
valid case.
_____________________

ECTOPIC PREGNANCY

Failure to diagnose an ectopic pregnancy is

potentially life threatening.

By definition, an ectopic pregnancy is one that is outside of

the uterus. Why is it life threatening? In order to answer the
question, it is important to learn where a normal pregnancy
is supposed to be.

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When fertilization occurs, the fertilized egg makes its’ way to
the uterus where it embeds itself for the next nine months.
The uterus will provide shelter, food and nutrients. In some
cases, the fertilized egg does not make its’ way into the uterus,
and instead winds up lodged within the fallopian tube. When
that happens the egg will embed itself in the tissues of the
fallopian tube and start to grow.

Well, when that egg starts to grow in a tiny narrow tube that
is not meant to accommodate a growing baby, the potential
for disaster and life threatening illness arises. Often, a woman
will experience bleeding, back pain, flank pain, and continued
elevated blood serum pregnancy levels (known as Beta Hcg
levels). Rising levels generally indicate the pregnancy is
ongoing and continuing.

When an ectopic pregnancy is suspected, the physician will

generally want to examine the patient every other day, and
also obtain “serial Hcg” levels in order to evaluate whether
the pregnancy hormone levels are increasing, decreasing or
staying level. This will assist the physician in determining
whether the pregnancy is active. A sonogram after about the
7th week of gestation can usually determine if the pregnancy
is within the uterus. If the pregnancy hormone levels are
increasing, and the pregnancy is not within the uterus, and
the patient is experiencing symptoms, a higher level of
suspicion must be entertained that the patient is suffering
from an ectopic pregnancy.

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The key question is when does the surgeon intervene before
the fallopian tube ruptures? A ruptured ectopic can cause
catastrophic internal bleeding causing death within minutes.
When to operate? If an operation is performed early, can the
fallopian tube be saved? Can the ectopic pregnancy be
excised from the tube and the tube put back together? Or will
the entire tube have to be removed? If the pregnancy is only
removed, and the tube is reconstructed, will your fertility
chances diminish? If your fallopian tube is removed, will your
fertility be affected?

All of these questions are valid and require an expert

gynecologist to fully answer them.

Often times, in failure to diagnose ectopic pregnancy cases in

New York, the patient will have symptoms that should suggest
to the doctor the likelihood of an ectopic pregnancy. It is
important for your medical malpractice attorney to look
carefully at the medical records to determine what
complaints, if any, you made to your doctor or hospital
emergency room, and whether those complaints were
recognized or ignored. Did the doctor recognize the
possibility that you might have an ectopic? Or was it not on
the radar screen? These are important factors to look at when
evaluating a potential case.
_____________________

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Examples of Malpractice
An Experienced New York
Medical Malpractice Lawyer Explains

Is it malpractice if a doctor ignores an abnormal

computerized EKG result?

Is it malpractice if a doctor fails to inform a patient that their

MRI result is abnormal?

Is it a departure from good and accepted practice if a

radiologist misreads a chest x-ray that in hindsight shows a
malignant mass that turns out to be lung cancer?

Is it wrong for a doctor to put surgical clips across the

common bile duct when doing a laparoscopic gallbladder
removal?

What do you think of a doctor who takes cash for a

procedure, does a “half-baked” job, and refuses to return the
money to the patient? Would it sound better if I told you the
doctor gave up his license to practice, abandoned his patients,
and now each of his patients with “sub-standard” treatment
must get corrective treatment at the going rate, which is
double or triple than what this doctor originally charged?

What about the case of a man who collapses at home, is

rushed to the emergency room, has emergency surgery on his
intestines and he comes out of surgery needing to have his
hand amputated days later?

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Maybe this one will catch your attention:

A woman goes into the hospital for a total knee replacement.

The surgery goes well. In the recovery room a drain in the
knee is attached to a tube for drainage. Unfortunately, the
nurse who attached the drain tube attached it to an oxygen
line instead of a suction line. Instead of fluid being pulled out
of the knee space, air was being pumped INTO the knee.
Since the knee was a closed space, the air blew into the space
directly under the skin and muscles, traveled up her entire
leg, inflating her leg like a balloon, then going up to her belly,
causing her belly to become as large as a pregnant woman’s.
The doctors were eventually alerted to this inexplicable
condition and rush the woman into the operating room where
they had to perform emergency surgery to find out why her
belly was inexplicably becoming larger and larger.

Immediately upon opening her belly, a huge amount of air

was released- like a balloon that is quickly deflated. Turns out,
there was nothing wrong with her belly. Working backwards,
the doctors were able to figure out that the drainage tube had
air going into her knee, which then traveled up to her belly,
causing her to look like a hot-air balloon. The failure to
recognize the mistake led this woman to have emergency
abdominal surgery—something that she did not need. Her
anticipated hospital stay of one day turned into a weeklong
stay with complications following the belly surgery.

What about the man who had eye surgery to repair a

drooping eyelid and came out of surgery being blind? Turns

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out that the eye surgeon cut his optic nerve during surgery,
and only realized the horrible mistake a day later-too late to
fix the problem. The man is now permanently blind.

What common recurring theme is found in each of these

cases?

Carelessness by a doctor or nurse. Naturally, the doctors and

nurses did not intentionally make these mistakes and errors,
yet they occurred because of inattention and carelessness.
Each of the cases discussed above are real cases that
happened in New York. Each victim had a story to tell. Each
injury was different and affected each person differently.
When asked, every injured victim would rather have his or
her health than have to resort to a medical malpractice
lawsuit seeking compensation.

Thanks for becoming informed.

_____________________

LUNG CANCER
The Ten Most Important Things Your Lawyer Needs To Know

Failure to diagnose lung cancer is deadly. The earlier you

diagnose and treat it; the better off you’ll be- hopefully.

Depending upon the type of cancer and when it’s diagnosed,

will determine your treatment options and survivability.
Believe it or not, you don’t have to smoke to get lung cancer.
There’s second hand smoke, there’s carcinogen’s in our

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environment, and our work environments may have
something to do with it.

As a lawyer, when a client comes to me wondering if their

lung cancer could have been detected earlier, I need to know
the following important answers:

1. Were you under the care of an internist, or any physician,

during the time you believe you should have been diagnosed?

2. Did you make any complaints to your doctor that should

have warranted a chest x-ray?

3. Does anyone in your family have a history of cancer,

especially lung cancer?

4. What type of lung cancer were you diagnosed with?

5. What stage of lung cancer were you diagnosed with?

(The stages are typically from Stage 0 to Stage IV, with IV
being the most severe and deadly.)

6. How much time went by from when you believe you should
have been diagnosed, until the actual diagnosis was made?

7. Did you ask your treating cancer specialist (an oncologist)

if your outcome would be different if the cancer had been
detected ‘x’ years ago?
(This is very important, since different types of cancer have
different growth patterns. Some are slow growing, and some

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are fast growing. If you have a slow growing tumor, and had
made complaints that suggested the need for further follow-
up and x-rays, you might have the basis for a case.)

8. What is your prognosis? (What do the doctors think about

your survivability and the treatment still available to you?

9. Are you a smoker?

10. What type of cancer have you been diagnosed with?

Then, with all of that information, I must obtain your

medical records, x-rays, CAT scans, and other information,
and have a medical expert (preferably a pulmonary specialist)
review your records.

This expert will determine whether the standards of care in

New York were breached, and if so, whether those departures
from good care caused and contributed to your injuries. All of
those elements must be present in order to start a lawsuit on
your behalf. If any one of those elements is missing, it is
impossible to prosecute a case for you.
_____________________

Emergency Room Misdiagnosis

A young man broke his arm while working in a brickyard. He

went to an emergency room in a municipal hospital in New
York. The emergency room doctor told him he had a fracture
and they would set the fracture and put a cast on. The cast

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would remain on for 6 weeks. He was told to follow up every
few weeks to make sure the broken bone was healing properly.
This young man returned to the orthopedic clinic, as
instructed, and each time he went, x-rays were taken. After x-
rays were taken, the orthopedic resident reassured him that
everything was healing properly. Six weeks after the initial
injury, the patient had his cast removed. He was shocked at
what he saw. His arm looked like a roller coaster. It was
straight, then went up, curved, then went down and flat again.
He asked the doctor whether this was normal. The physician
told him that with physical therapy this would go away.

My client was not an educated man, yet he knew that no

amount of physical therapy would make his bone go back
into the correct position. He decided to seek another opinion
of an orthopedist near his home. After additional x-rays and
evaluation of the original emergency room x-rays, this board-
certified orthopedist concluded that this young man needed
surgery to re-break the bone since it did not heal in the
correct position. He would need a titanium plate, screws and
pins to hold the newly broken bones together. This is known
as an osteotomy (breaking the bone) and an open reduction
with internal fixation. He would need to be put to sleep with
general anesthesia and have a recuperation period of 6-8
weeks again.

This young man learned that his broken bone was never set
properly. Had it been properly set when he was in the
emergency room, he’d never have needed this additional
surgery and wouldn’t have to have his bone re-broken and
then put back together with plates, pins and screws.
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During this lawsuit, I had a chance to question the “Doctor”
who treated my client in the emergency room. It turns out
that this “doctor” was not a doctor at all. In fact, he was just
a physician’s assistant who was supposed to be supervised by
the attending emergency room physician. Unfortunately for
my client, this physician’s assistant never asked his supervising
physician to review the emergency room x-ray before or after
he had set the bone to make sure it was done correctly. Even
more amazing was that none of the orthopedic residents who
evaluated this patient in the orthopedic clinic recognized that
the x-ray was clearly abnormal and that the bone would not
heal in the correct position.

Had the physician’s assistant shown the original x-rays to his

supervisor, in all likelihood, the supervising doctor would have
recognized that the arm was not set correctly and would have
re-set it again before casting the arm and sending the patient
home.

This injury was totally preventable, and the attorney who

represented the hospital recognized that fact during the
litigation. I am pleased to report that this case was successfully
resolved shortly before trial.
_____________________

5 Holiday Tips To Keep You From Being

an Emergency Room Malpractice Victim

The holidays are notorious for over indulging on food,

overexertion while shoveling snow, and high levels of stress.

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Unfortunately, this puts many people in the emergency room
needing immediate medical care.

What happens in the emergency room when the hospital is

understaffed because the doctors and staff are on vacation
and they’re short-staffed? Your care may suffer.

Here are 5 important tips to help you through the holidays if

you wind up in the emergency room:

1. Make sure you are seen by an attending emergency room

doctor. An attending is a doctor who has completed all of his
postgraduate training, and is now working for the hospital.
Most emergency rooms are staffed by doctors-in-training,
called residents, and are supposed to be supervised by a senior
physician. If you are seen by the resident doctor, you should
ask to also be personally evaluated by the attending physician.

2. If you are able, ask lots of questions. “Why do I need this

test,” “What is the purpose of this medication,” “Are there
any alternatives to treat me, other than what you are
recommending?” “What will happen if I choose not to have
the treatment?” Do not accept what is given to you blindly.

3. If you have x-rays, an MRI scan or a CAT scan, ask

whether the attending radiologist has read the films. Do not
rely on the radiology resident in the emergency room to read
the films. “Oh, but the attending isn’t in now, he reads it the
next day.” No good. If the attending radiologist isn’t available,
ask the emergency room doctor to read the films himself.

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4. If you are given medication, either in pill form or by
intravenous line, you must ask if there’s the potential for an
allergic reaction. Allergic reactions can kill you. You must ask.

5. If you are allergic to any medication, make sure the

emergency room staff notes it on your chart, and make sure
you are given an ‘allergy bracelet’ to let everyone know about
your allergies. In practically every hospital, allergy bracelets
are available to warn hospital staff about a patient’s allergies.
Don’t rely on a note in your chart to inform the doctors and
hospital staff about your allergy.
V
eteran New York malpractice lawyer Gerry Oginski says
“Keeping these tips in mind while in the emergency room will
minimize your risk of being a medical malpractice victim
during this holiday season.”
_____________________

Cross-Examination Of An Expert
Witness In An Erbs Palsy Case

I had the privilege of questioning an expert in an erbs palsy

case last week. In Federal Court the parties are permitted to
question experts prior to trial in the form of a deposition (a
question and answer session with the attorneys present). The
expert, after reviewing the records prepares a written report
that describes his evaluation of the records, his opinions, and
the bases for his opinions.

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In the case I had, the expert was a world-renowned expert in
maternal-fetal medicine, a subspecialty of obstetrics &
gynecology. The expert’s curriculum vitae (CV) was over 40
pages long. In my first set of questions to the expert, I told
him quite honestly I was very impressed with his CV. He
literally had published hundreds of articles, chapters in
textbooks, abstracts, and presentations. Yet in all the hundreds
of articles and publications to his name, he didn’t have a
single publication about the issue directly involved in this case.
He hadn’t done any studies on the issue of shoulder dystocia,
erbs palsy, or the diagnosis, treatment or prevention of
shoulder dystocia and erbs palsy.

Also look to the witness’ clinical experience and current status

at their hospital. This expert who was going to be giving
opinions about whether doctors at a hospital in New York
rendered the appropriate medical care hadn’t done a vaginal
delivery in a long time. Nor had he had any recent experience
with shoulder dystocia, or any deliveries where erbs palsy was
diagnosed at the time of delivery.

POINT:

Even though your opponent produces a well-known expert

against you, pay careful attention to just what the witness is an
expert in. A careful review of his CV often reveals plenty of
fodder for cross-examination.

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LOOK AT THE BASIS FOR EACH OF THE
CONCLUSIONS THE EXPERT HAS REACHED

If the facts upon which the expert rendered an opinion are

inaccurate or faulty, then his conclusion will also be faulty. It
is the obligation of every attorney to whittle away those
inaccurate facts that the opposing expert has relied upon, to
show that this experts’ opinion is no longer valid.

“Doctor, assume that Mrs. Jones testified that she had

pressure placed upon her belly during her labor. Would you
agree that fact would be most consistent with the application
of supra-pubic pressure? Would you also agree that the only
time supra-pubic pressure is used is when there is a shoulder
dystocia? If Mrs. Jones’ recollection of pressure being applied
to her belly is correct, then you’d agree that this is evidence
of shoulder dystocia?”

“Now doctor, in your conclusions, you felt that there was no

evidence of a shoulder dystocia based on the information in
the medical record, correct? However, you’d agree that the
individual who delivered this child made very few notes in
the record, and in fact the record is devoid of any mention of
shoulder dystocia, correct? Yet, you decided to base your
conclusion on a record that was missing a great deal of
information?”

“Isn’t it true doctor that another physician testified that

McRobert’s maneuver was used during the delivery? You
discounted what this witness had to say, didn’t you? If you

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had credited what he said- and he was actually in the delivery
room, you’d agree that his statement that McRobert’s was
used, together with mom’s testimony that pressure was placed
on her belly, would strongly suggest that a shoulder dystocia
was present, correct?”

“If shoulder dystocia is present then that person doing the

delivery is obligated to call for help, for the senior-most doctor
to help with maneuvers to get this child delivered without
putting excessive traction on the baby’s head. You’d agree
that excessive lateral traction, in light of a shoulder dystocia
can cause, and in fact is the most likely cause of erbs palsy.”

KNOW THE MEDICINE

In any malpractice case, you must become familiar with the

medicine involved in your case. You must become a mini-
expert in the narrow topic of medicine in your case.

In an erbs palsy case, the attorney must know the basics:

Shoulder dystocia, erbs palsy, brachial plexus injury,

McRoberts, Woods-corkscrew maneuver, cutting an
episiotomy, sweeping the posterior arm, fracturing the
clavicle, the zavanelli maneuver, sonogram, intra-uterine
anomalies, maladaptation, malalignment, cervical dilatation,
normal progression of labor, first stage of labor, second stage
of labor, apgar scores, lateral traction, downward traction,
gestational diabetes, glucose tolerance test, maternal obesity,
ACOG statement on shoulder dystocia (American College of

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Obstetrician and Gynecologists guidelines for recognizing
and treating shoulder dystocia).

BE POLITE.

Show that the expert’s conclusions are inaccurate, and do it

with a smile!

KNOW THE MEDICAL RECORDS

Make sure you review those medical records over and over
again. Know it better than the expert and your adversary. It
will prove well worth it when you can point to a specific part
of the medical record that the expert cannot recall.

ONLY BY THOROUGH PREPARATION AND EXHAUSTIVE

RESEARCH OF THE TOPIC CAN YOU PERFORM A
SUCCESSFUL CROSS EXAMINATION OF A MEDICAL
EXPERT IN A MEDICAL MALPRACTICE CASE.
_____________________

ANESTHESIA ERRORS
Result in Brain Damage

The words we never want to hear “I’m sorry, your loved one
has irreversible brain damage...” says the doctor in the
crowded waiting room. You blurt out “But how did this
happen?” you ask with baited breath, trying to learn the
source of your terrible angst. The doctor wants to tell you, in
fact, is eager to tell you...but the doctor knows that if he tells

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you the reason why this happened, you will likely bring an
immediate lawsuit against the hospital, the anesthesiologist,
and everyone who cared for your loved one.

When going to have surgery, the anesthesiologist is obligated

to talk to you prior to surgery to ascertain whether you are a
good candidate for, say, general anesthesia, where you are put
to sleep. The anesthesiologist is supposed to discuss with you
the risks associated with general anesthesia. In every instance
where anesthesia is administered, there is always the
possibility of death. However, if every anesthesiologist told
every patient that they could die from the anesthesia during
the “routine” surgery, nobody would ever have surgery.

Why is this important? Because there are some patients who

would rather not take a risk, however remote, that something
catastrophic could happen during a “simple, routine” surgical
procedure. Take for example a case I handled a few years ago.
It involved a woman who was having a colonoscopy in a
doctor’s office. She had followed the doctor’s instructions to
prepare for the procedure to the letter. No food past midnight,
nothing to drink. She’d taken that awful, disgusting drink that
causes you to go to the bathroom 20 times in a row, for a total
clean out.

When she arrived for her colonoscopy, she never expected

what was ultimately to happen. Interestingly, the doctor
performing the procedure had the good sense to have an
anesthesiologist in the room. The anesthesiologist gave her
an IV and gave her medicine to make her sleepy. Then the

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procedure started. There was some difficulty passing the tube
through the intestines and the next moment the patient had
vomited. The anesthesiologist did not recognize what had
happened, and rather than stopping the procedure, advised
the doctor doing the colonoscopy to continue-that the patient
was fine. To the contrary. The patient had inhaled the vomit
into her lungs. The anesthesiologist never suctioned the vomit
past her trachea. In fact, she had inhaled so much vomit that
in a very short time, the acidic stomach contents began to eat
away at the patient’s lungs. Soon she could not breathe easily
and was having very labored breathing. Only when the doctor
doing the colonoscopy realized he couldn’t complete the
procedure did he stop what he was doing.

The anesthesiologist still didn’t recognize the significance of

what had happened. The patient’s oxygen content was
dropping rapidly. There was a strong suggestion that the
anesthesiologist wasn’t even around to monitor the patient,
as he had to go into the next case to provide anesthesia for the
next patient. After almost an hour of labored breathing in
the recovery room, and decreasing oxygen content in the
patient’s blood, did someone finally call an ambulance. The
patient developed severe pneumonia from the foreign matter
(vomit) that was now in her lungs. Two days later she died
directly as a result of the anesthesia errors and the doctors
failing to stop the procedure when there was a significant
complication.

The sad part of this story is that this woman would have lived
for many more years had these errors not taken place. The

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patient suffered brain damage and severe damage to her lungs
from an anesthesiologist who failed to recognize common
complications-and developed a condition the doctors called
aspiration pneumonia, as well as hypoxia-also known as a
decreased amount of oxygen in her lungs, blood stream and
brain.

Another case I handled recently involved a young man who

had hernia surgery. It was to be a ‘same-day’ procedure and
the young man was to be discharged after the anesthetic had
worn off. Unfortunately for this young man, he was given too
much anesthesia. Instead of being discharged from the
recovery room after an hour, he was still there three hours
later. Since it was about 7:00 p.m. and the ambulatory center
was already closed, the doctor decided that the patient should
be admitted to the hospital overnight- just for observation.
This way, he can be watched, and when the anesthetic wears
off, he’ll be able to go home in the morning. Not a bad
thought.

However, the patient was so groggy, he didn’t even know he’d

been admitted to the hospital. He was admitted to a regular
floor and there was no electronic monitoring of his oxygen
levels, his cardiac status, or even his breathing. It was an
unmonitored medical floor where the nurses came in every
three or four hours just to check on you and possibly take your
vital signs if you were lucky.

During the night, the night nurse saw the young man was
sleeping and decided not to wake him to take his vitals. That

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was a bad decision. In the morning, when the next shift came
on duty, the nurse went to check on the young man and found
him totally blue, not breathing, and in cardiac arrest. An
emergency “code blue” was called and doctors came racing
from all over the hospital to try and revive this young man.
The doctors were ultimately successful and were able to get
his heart started again. They put him on a ventilator since he
could not breathe for himself. Tests revealed that this young
man had been deprived of oxygen for hours. His body had
been over-anesthetized from the hernia surgery the evening
before, and even though there was medication available to
reverse the effects of giving excess anesthesia, this patient
never received any such medication.

This young man lived on a respirator, suffered every

imaginable complication from being on a respirator and
suffered irreversible brain damage including pneumonia,
infection, kidney failure and an untimely and horrific death.
“But he just went into the hospital for routine hernia
surgery!” exclaimed his father. What made this even worse
was that for a few days after this catastrophic event, the man
was able to feel pain. When they pinched his skin he moaned.
When they touched his eyeball, he retracted. There was
evidence of some level of conscious pain and suffering. This
young man’s death was preventable.

Anesthesia errors are tragic and unforgiving. If tragedy

strikes, try to have this question answered: “Why did this
happen?”
_____________________

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MORE PLASTIC SURGERY MAYHEM
My New York Doctor Screwed Up My Breasts - Do I Have A Case?

I receive many calls from women who have breast reduction

or augmentation surgery that are unhappy with their results.
The same is true for women who have abdominoplasty
procedures, also known as ‘Tummy Tucks’. The complaints
are strikingly the same:

“I don’t like the way my surgery came out,”

“The doctor stitched me up too tightly,”

“I was in the hospital too long,”

“My wound got infected,”

“I wanted to be a B cup, but now I’m a C cup,”

“My breasts are still uneven,”

“My scars are prominent, and I can’t wear a bikini,”

“The doctor didn’t center my nipple when he did my breast

surgery.”

The real question that a New York medical malpractice

lawyer needs to evaluate is whether these problems stem from
improper medical care. In elective plastic surgery cases many
women do not realize that just because they did not get an

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optimal or ideal result does not necessarily mean that there
was malpractice.

Another important issue is that there is something called

‘medical judgment’ when doing elective plastic surgery. One
doctor may use one type of suture material, and another
doctor may use a different material. As long as each method
is medically acceptable, the fact that one chose to use a certain
type of suture material over another is a judgment call, and
that choice is generally not considered malpractice.

Let’s look at wound infections. Wound infections can

unfortunately happen even in the best of care, and the fact
that a woman develops a post-operative wound infection,
again, does not instantly mean there was wrongdoing.

Most patients who have breast reduction or augmentation

surgery want to improve their looks. They believe plastic
surgery is the way to accomplish this. The reality is that no
plastic surgeon will ever guarantee a result. “I’ve done
thousands of breast surgeries...don’t worry about a thing,”
the famous Park Avenue plastic surgeon said to a patient
during her consultation. What he didn’t tell her was that there
are risks to every surgical procedure. Had she known about
those risks, she never would have had the surgery.

There are many women who have revision surgery to

minimize their scars. Others have their implants replaced for
different sizes. The tummy tuck that was sutured too tightly
may need to be surgically opened and loosened. Those

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patients who have revisions are sometimes given ‘freebies’ by
the surgeon. In other words, he (or she) will not charge for a
repeat or corrective surgery. I receive some calls from women
who are furious that they need revision surgery and their
surgeon still wants to charge them $10,000, $15,000 or even
$20,000 cash. (Remember, insurance doesn’t usually pay for
elective plastic surgery.)

I am often asked to look at the horrible result a plastic surgeon

caused. Some photos show terrible looking scars. The nipple
may be off-center. The scarring may be keloid and raised. It
may be a fresh scar and not have had time to heal yet.

Here’s why a plastic surgery victim calls a lawyer’s office to ask

if they have a valid medical malpractice case:

They see themselves as disfigured following a costly and time-

consuming surgical procedure. They went into this expecting
to be made more beautiful than they were. When they come
out worse than they expected they get upset. When the
patient confronts her fears and concerns with the doctor, the
doctors’ response will usually determine whether I get called.
Typically, these women are at first ashamed that a respected
doctor could give them such a terrible result. The feelings of
shame turn to anger after talking to friends and family about
her predicament. The inability to wear sexy revealing clothes
certainly creates frustration. A caring physician may appear
cold-hearted when he (or she) fails to take the patient’s
concerns seriously. Here’s the kicker that always generates a
call to the lawyer’s office...

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The doctor refuses to do a revision surgery unless the patient
pays full price, in cash, before the surgery.

In order to properly evaluate a potential case I need to obtain

and review all of your medical records. I need to have an
expert plastic surgeon review and comment on your
treatment. Only if my expert confirms that (1) there were
departures from good care that (2) caused you injury and (3)
that the injury is significant and permanent, are we permitted
to go forward and prosecute a case on your behalf.

If any one of those three elements noted above is missing,

then it becomes impossible to prove a successful case. The
first step to evaluating your possible case is to speak to an
experienced New York medical malpractice attorney as soon
as possible. By obtaining as much information as you can, you
become a better-informed consumer and learn the process of
how a lawyer chooses to accept a case.
_____________________

DENTAL MALPRACTICE
Pain During Treatment Do I Have a Case?

A call comes in... “My dentist was doing a root canal

on me and caused me terrible pain. The pain
continued for days. Do I have a case?”

The short answer is no. The longer answer is maybe. Here’s

what I mean. In any dental malpractice matter, as with any
medical malpractice case, a New York attorney must be able

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to prove not only that there was wrongdoing, but also that the
wrongdoing caused injury, and the injury must be significant
and/or permanent. All of those elements must be confirmed
by a dental expert who has either examined you, or by an
expert who has reviewed all of your records and x-rays. If
any one of those elements is missing, then there is no way to
bring a successful case on your behalf.

Dentists are often associated with pain. There’s pain to get

an injection to anesthetize part of your mouth. There’s pain
with a cavity and pain with infection. Pain is what usually
leads us to the dentist in the first place. If you’re having root
canal treatment, it usually means that you had pain that didn’t
go away with filling your cavity. Your nerve needs to come
out, and root canal may be the only way to do it. Sometimes
the dentist is unable to get the entire nerve root, leaving a
small piece in the canal. This may be the reason for your pain.
Maybe you have a post-procedure infection causing you pain.
Maybe the dentist didn’t numb your entire mouth and you
still feel the pain. This pain is either part of the initial
problem, or part of the procedure, or a complication of the
procedure.

Unless your lawyer can prove that your pain was directly
caused by something that was done improperly, it will be
difficult, if not impossible to prove your case. If however, your
lawyer can show that something was done wrong, like leaving
a needle inside the canal and the dentist failed to recognize
that, you might then be able to show liability. However, the
next step is in proving the extent of your injuries. If you

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suffered minimal injury, again, it will be difficult to prove a
long-lasting and permanent condition. If instead, you
suffered permanent problems requiring ongoing and
continued dental care and reconstruction, you might just have
a basis for proceeding forward.
_____________________

ANOTHER EMERGENCY ROOM

SCREW-UP
They Missed the Brain Tumor Right in Front of Their Eyes

A woman, working as a health aide, was accompanying her

‘patient’ to the doctor’s office. She was in a van that was
transporting her and her patient for a routine office visit. On
the way, the van was involved in a car accident. The woman
hit her head during the accident and both she, and the patient
were taken to the emergency room by ambulance. Ironically,
the accident happened in front of the hospital they were
taken to.

Because of her head injury, the woman had an MRI of her

head. She also had x-rays and blood work done while she was
in the emergency room. The x-rays were normal, as was the
blood work. She was also told that her MRI was normal as
well. “Go home, take some Tylenol, and you’ll be fine,” said
the emergency room doctor.

About five months later, this woman started having difficulty

seeing out of one of her eyes. She thought she needed
eyeglasses. She went to her local eyeglass store where an

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optometrist examined her and gave her a prescription for
eyeglasses. He noticed something in the eye that was troubling
her and suggested she see an eye doctor for further evaluation.
Shortly afterward, she made an appointment with a local eye
doctor who also noticed something abnormal. By this time,
her vision was getting worse by the day. It got so bad that this
woman could barely see anything out of her eye. Her eye
doctor ordered an MRI.

The MRI showed that there was a brain tumor compressing

the nerve that controls sight in the eye-the optic nerve. “Do
you know that you have brain tumor?” the doctor asked this
patient. No. In fact, only five months ago, I had an MRI of
my head done at the local emergency room, and they said
everything looked good. “Get me a copy of the MRI, will
you?” asked the eye doctor.

The patient made arrangements to send her MRI and MRI

report from the hospital to her eye doctor. Contained within
the report was this statement “Patient has a mass that appears
to be close to the optic nerve. Follow-up recommended.”

“You were never given a copy of this report?” asked the eye
doctor with disbelief.

“No, they told me my MRI was normal,” said the patient.

“Did anyone ever call you from the hospital and tell you to
return for follow-up treatment regarding this mass in your
brain?” asked the eye doctor.

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“Nobody from the hospital ever called me,” responded the
patient.

What this patient learned after coming to us to investigate her

potential medical malpractice matter was that the emergency
room doctors treated her correctly. The doctors ordered the
appropriate tests for her as well. The problem started after
the MRI was read and nobody ever informed the patient that
she had this abnormal mass in her brain.

If this observation had been communicated to the patient,

she would have had elective surgery to remove the tumor (it
was a benign tumor that was creating a mass-effect, causing
compression on all the structures surrounding the tumor).
The tumor would have been removed before it started to
change her vision in one eye. Over the five months since the
car accident, the tumor had grown so large as to cut off the
blood supply in the optic nerve, causing her to go blind on
that one eye.

Even though this woman had surgery to remove the tumor,

there was nothing anyone could do to restore the vision in
her eye. She was permanently blind in that eye. Why?
Because the radiologist who read the MRI never
communicated this finding to the emergency room doctor.
Another factor causing miscommunication was that the
emergency room doctor never received a copy of the MRI
report. What happened was that the radiologist dictated his
report, which was an accurate report. We had no issue with
what he found in the MRI.

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The big problem was that nobody in the hospital
communicated the abnormality in the patient’s brain TO
THE PATIENT! The radiology report was simply filed in the
patient’s chart, which was no longer in the emergency room,
since the emergency room doctor discharged the patient
shortly after the MRI was done. Nobody ever ‘red-flagged’
the report to see if the patient was recalled to the hospital, or
to see if she received treatment for the abnormal mass in her
head.

Here, the tumor was right in front of the doctors’ eyes. Yet
nobody ever told the patient she had this tumor. As a result,
the tumor continued to grow causing the optic nerve to die.
This patient lost vision in her eye solely as a result of the
mistakes made by the doctors in the hospital. This was a
preventable occurrence. Unfortunately for this patient, she
will never regain her sight.

This is one example of how we helped an injured victim in

her quest for justice. A thorough investigation and
prosecution of the case resulted in a favorable settlement right
before a jury was selected for trial.
_____________________

Failure To Diagnose A Heart Attack

How does a doctor “fail to diagnose a heart attack?”

In one of two ways:

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1. He fails to recognize the signs and symptoms of
an impending heart attack, or an ongoing heart
attack, or

2. He fails to properly interpret the tests that were

taken.

Let’s talk about #1 above. Typically, a patient will go to a

hospital emergency room with complaints of belly or chest
pain. The pain could be radiating from the chest to the
shoulder or arm. The patient might be sweaty and clammy.
They could be experiencing crushing chest pain. The
problem arises when the patient’s complaints are not typical
for what is commonly seen in a heart attack victim.

The words “heart attack” are a misnomer. What do I mean?

The doctors refer to a heart attack as a “myocardial
infarction.” It basically means one of two things: (1) That part
of your heart muscle has died, or (2) The blood vessel(s) that
supply the heart with blood and oxygen has been cut off,
causing part of your heart to starve and possibly die.

When we hear that someone has had heart bypass surgery, it

usually means that one or more of the blood vessels that
supply the heart with blood and oxygen has been restricted or
obstructed, and surgery was done to allow blood to ‘bypass’
or go around the obstruction.

Sometimes when a patient presents to a doctor or an

emergency room with an upset stomach or back pain, the

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doctor may not correctly interpret the symptoms, and may
incorrectly diagnose the patient as having a gastric problem
(a problem with their digestive system) and not a cardiac
problem. The problem arises when the patient returns home
and hours or days later, they die as a result of a ‘heart attack’.
Let’s discuss #2 above, where the doctor incorrectly interprets
the EKG or a stress test, and thinks it’s normal, when in
reality it is not. Again, the patient is discharged home with
instructions on diet and exercise and to follow up with their
doctor or cardiologist in a few weeks. Needless to say, the
patient returns home and days, weeks, or even months later,
the patient dies of a heart attack.

What does a New York medical malpractice attorney look for

when evaluating a claim of “failure to diagnose a heart
attack?” Your attorney needs to know the following:

1. If you had been correctly diagnosed at the time you had

symptoms, what treatment would you have had? Would you
have had a stent put in your cardiac artery or vein (a stent is
a device designed to open up a clogged artery or vein, and is
put in using a catheter, instead of having major open-heart
surgery)? Would you have received nitroglycerin to help ease
the flow of blood and reduce your pain?

2. Would you have had elective open-heart bypass surgery?

By elective, I mean that you have had time to discuss the
surgery with your doctor and learn about the risks, benefits
and alternatives to the surgery. Sometimes when a patient has
had a heart attack, tests might reveal that many of the blood

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vessels supplying the heart are severely clogged. The patient
may then need emergency bypass surgery, and you may not
have a chance to discuss any alternatives, as there may not be
any at that point.

3. If elective bypass surgery was done, and there was no blood

vessel that remained clogged, would you have suffered the
heart attack that you ultimately did? If the answer is no, then
your potential malpractice case just got stronger. In other
words, if your injuries were preventable if you had been
timely diagnosed, you would not be in the condition you’re in
now. That’s very significant and important.

Recently, I had the privilege of representing a young man

whose cardiac condition was misdiagnosed. He had gone to
a hospital with complaints of chest pain that was incorrectly
diagnosed. He was told to follow-up with his cardiologist to
address his ongoing complaints of chest pain. Three months
later, this young man suffered a devastating heart attack,
killing off a large part of his heart muscle. When the records
were reviewed by cardiologists (heart doctors) we learned that
the doctors initially misread the diagnostic tests that were
performed, and missed the key opportunity to perform
elective heart bypass surgery. As a result of that failure,
months went by where the young man continued to complain
of chest pain. The heart attack has destroyed this man’s life.
Unfortunately for him, his heart attack was totally
preventable.

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A heart attack may be preventable. Let your lawyer know
what symptoms, if any, you had when you saw your doctor
and what was done for you. Tell your attorney the details of
what went on in the emergency room and what tests they
performed to find out if you had or were having a heart
attack. Prevention is always best. Knowing that a heart attack
could have been prevented is second best.
_____________________

BIRTH INJURY CASES

Shoulder Dystocia & Erbs Palsy

Shoulder dystocia occurs when the baby gets stuck behind

the mom’s pelvic bone while passing through the birth canal.
Failure to recognize this can result in significant injury to the
baby. Sometimes, an obstetrician will try and pull on the
baby’s head to get the baby out quickly. This can have
devastating effects on the baby.

Applying excessive lateral traction to the baby’s head when

the baby’s shoulder is stuck in the birth canal can cause a
baby’s nerve to stretch or tear and become severely injured.
This injury is called “Erbs palsy,” “Klumpke’s palsy,” or
“Brachial Plexus palsy.” This nerve injury causes significant
disability to the baby’s arm and has long-term implications.
Most children with this injury are unable to use their arm,
and hand.

Here are some maneuvers doctors use to try and get the stuck
shoulder out from behind the mother’s pelvis:

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1. A “woods maneuver,” also known as a “corkscrew”
maneuver. This rotates the baby to move the stuck shoulder
away from the obstruction.

2. If the “Woods” maneuver doesn’t work, then they can try

a “Rubin” maneuver. This rotates the baby in the opposite
direction.

3. At the same time, the doctor should be doing a

“McRobert’s” maneuver. This is where the pregnant woman’s
legs are pulled back as far as possible, with her knees up by
her chest. This creates more curvature of the spine and more
room for the baby to pass through the birth canal.

4. If those maneuvers don’t work, an obstetrician can try to

deliver the posterior arm to release the shoulder from the
mom’s pelvis.

5. Another maneuver is applying suprapubic pressure. This is

pressure placed on the mother’s belly, below where the baby
is, in the area of the pubic bone. It is NEVER acceptable to
apply fundal pressure, which is pressure placed at the top of
the mother’s belly to try and force the baby down the birth
canal.

6. An episiotomy (an intentional cut made by the obstetrician)

is often done to allow and prevent a tear of the skin and
muscles as the baby passes through the birth canal.

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7. As one of the last efforts, the obstetrician can fracture the
baby’s clavicle bone, which will collapse the bone, and
(hopefully) shrink the size of the shoulders so the baby can
pass through the pelvis.

8. As a final, drastic, last ditch maneuver, a procedure known

as a “Zavanelli” maneuver can be done. This is also known as
a “cephalic replacement” where the baby’s head is pushed
back into the vagina and an emergency cesarean section is
performed. This is rarely done, but is nevertheless a tool in the
obstetrician’s arsenal to get the baby out when all else fails.
_____________________

YOU’VE BEEN TURNED AWAY

7 Reasons Why Your Case Isn’t Good Enough For A New York
Medical Malpractice Lawyer

1. Your injuries are not significant.

In a medical malpractice case in New York the injuries need

to be significant for an experienced lawyer to take on your
case. The reason is that these cases are very expensive and
time consuming. A lawyer generally puts in the same time
and effort on a small case, as he will on a large case. That is
why most NY attorneys will usually take only significant cases.

2. You exaggerate and lie.

If you exaggerate on any aspect of your case, your lawyer

may question your credibility. Your believability is the key to

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your case. If a jury finds that you have exaggerated your
injuries or the facts, there’s a very good chance they will turn
you out of court without any compensation. If you lie, either
to your lawyer, or to a jury at trial, your credibility is gone.
Your lie, regardless of whether it is a ‘little white lie’ or a really
big fib will likely destroy your entire case. If a jury sees that
you have lied, you could possibly subject yourself to perjury
charges and lose your case.

3. It’s a judgment call by the attorney.

The attorney may be on the fence about your case. The

expert may find there is liability that caused harm. However,
there may be something else in your set of facts that cause
concern for your lawyer. Your lawyer will make the ultimate
decision whether to take on your case. Some lawyers make a
gut-instinct call to either accept or reject a case after your
initial meeting. If your case is rejected, your lawyer will give
you your options and advise you to seek another legal opinion
immediately in order to protect your legal rights.

4. You are demanding.

Have you ever walked into a store or a restaurant and heard

a customer demand food, utensils, and service in a loud and
obnoxious voice? Sure you have. We all have. How about the
demanding customer who treats the store clerk or waitress
like they are hired help with their sole purpose in life is to
serve this one customer? How do you think the store clerk or
waitress feels when a demanding customer comes in? Of

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course the ‘customer is always right’, but how much abuse
can a person take before saying something?

There are potential clients like this too. When they come into
a lawyer’s office, do you think they get better service or worse
service by being so demanding? “I want you working on my
case exclusively...I only want you call me at the office, not
home...Do not send me any emails...I want to make them
pay...I will never settle this case...”

5. You insist you have a case and refuse to listen to

the lawyer.

You go to a lawyer for legal advice. If you don’t listen to the

lawyer’s advice, why go to a lawyer in the first place?

6. You think you know more about lawsuits and

trials than your New York Medical Malpractice Trial
lawyer.

Unless you’ve gone to law school and have practiced law for
more than 20 years handling medical malpractice and
personal injury law in New York, how could you possibly
know more about these types of cases than the experienced
lawyer you are consulting with?

7. You are a repeat litigator with multiple small

lawsuits.

There are some people who make a hobby out of bringing

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lawsuits. They feel aggrieved about every little thing that is
done wrong to them. They take every advantage to use the
legal system to their benefit. While there’s nothing inherently
wrong with that, when your lawyer learns that you have sued
ten people in the last five years for matters ranging from lost
clothing at the cleaners, to a restaurant who refused to seat
you on time, to your car mechanic who overcharged you $200
for a repair, your medical malpractice lawyer may sense
trouble in the future from your legal history.

Conclusion:

Hopefully this will give you some insight into what an

experienced New York medical malpractice & accident
attorney looks for when you walk into his office.
_____________________

WRONGFUL DEATH CASES

Dead Man’s Family Calls New York Medical Malpractice Lawyer
First Before Burying Him

THIS IS A TRUE STORY

A call came in the other day. A hysterical woman was on the

phone. Her husband had died just moments ago. The
hospital was in New York City. The woman and her family
wanted to know what to do.

What to do? I’m thinking that they’re calling a malpractice

lawyer within minutes of their loved one having died, and

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they’re calling me? Wouldn’t they prefer to talk to a lawyer
until after he’s buried? After a moment of pause, I calmly
started my inquiry. How old was he? Why was he in the
hospital? What do you think was done wrong that caused his
death? What is the cause of death?

The more questions I asked, the more I realized that the

recently deceased husband was sick for many weeks before
arriving at his final destination. His wife had read my series
of online articles titled “In Case of Death...” His family knew
months before this final day that he was the victim of medical
malpractice. Despite knowing this distressing fact, his wife
decided to hold off calling a medical malpractice lawyer in
New York until he died. She didn’t want to trouble her
husband with the horrible realization that he was dying
because a doctor failed to diagnose his lung cancer.

The first question she asked was whether an autopsy should

be done. The answer to that question raised a number of very
significant issues. The first is religious. The second is the
competency of the individual doing the autopsy. First, I’ll
describe what an autopsy is. Then I’ll show you how I
answered her pressing question.

An autopsy is a detailed physical examination of a person

who has died. The doctor who does this examination is called
a pathologist, or a medical examiner. They literally explore
the anatomy of the person who died. They look, see, and
evaluate the cause of death. In order to do that they need to
open and expose every part of the body. They take samples

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of body tissues and fluids and examine them under the
microscope.

Getting back to my answer, I asked their religion. Why did I

ask? In some religions there is a prohibition of desecrating a
body after someone has died. An autopsy, according to some
religions, interferes with a person’s ability to go to the afterlife
with an intact body. In her case, there was no religious
prohibition to performing an autopsy.

The benefits of an autopsy are plentiful. If the exam is done

properly and professionally by a physician with experience,
the autopsy can yield a great deal of useful information.
However, an autopsy is a double-edged sword when
evaluating its’ usefulness in a potential wrongful death case.
Typically, an autopsy will determine why a person died. In
many death cases, the autopsy provides not only valuable
information about how and why someone died, but also
provides useful information to be used against the family at
the time of trial.

Here’s the dilemma:

In a failure to diagnose lung cancer case we will claim that

the failure to diagnose caused the lung cancer to spread and
ultimately caused an untimely death. We also allege that had
the cancer been detected at an early stage, the patient would
have been able to receive treatment and would be alive today.
Let’s say the victim was 65 years old and we believe he was
otherwise healthy. An autopsy might reveal that he had

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massive heart disease. An expert pathologist might be able to
argue that because of his massive heart disease, his life
expectancy- even without any lung cancer- would have been
severely reduced. What’s the next logical argument the
defense will make?

Even if the victim had no cancer, there is still the likely chance
that he would have died within a few years, either from a heart
attack, or a stroke (from a buildup of plaque), and the failure
to diagnose the cancer didn’t really shorten his lifespan.

While there are definite benefits to obtaining an autopsy, it is

always fraught with the possibility that the defense will have
gained useful information to use against you and your family
during a wrongful death case. Having said that, it is usually
beneficial to have an autopsy. Why? To determine the precise
cause of death. Once we have confirmed the exact cause of
death, we can work backwards and determine whether this
was a slow-growing cancer or fast-growing cancer. The
difference is significant and can mean the difference between
a valid malpractice case and one that has no merit.

By the time I was finished talking to this clearly distraught

woman, I realized that an autopsy would be beneficial for her
and her family. It would put to rest idle talk by a few of the
doctors that he died from an unrelated illness. This woman
needed guidance and information from an experienced
medical malpractice lawyer. The knowledge I provided
helped her make an informed decision about what to do next.
_____________________

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INJURED AT BIRTH
Fetal Distress, Hypoxia & Anoxia
-A Case Report-

Let me tell you about a brain-damaged baby case I handled

that started when a woman came to my office and told me
about how she was in labor with her second child. She was
admitted to the labor floor and apparently hooked up to a
fetal monitor to evaluate the baby’s heart rate and the
mother’s contraction patterns.

She was on the labor floor for hours with infrequent visits by
a nurse and a resident doctor every so often. Mom told me
that despite continued complaints of labor pain, her pleas to
help went ignored. Nobody checked on her for more than an
hour. When a nurse finally checked in on her, she noted
abnormal fetal tracings and ran for the doctor. The doctor
came in, examined the patient, reviewed the fetal monitoring
strips and decided she needed an emergency cesarean section.
All mom knew was that there was a problem with the baby.

At the time of birth, the baby had very low Apgars- the scores
that are given to the baby to try and objectively assess the baby’s
well being at the time of birth. The doctors look at whether
the baby is breathing at birth, whether he’s crying, moving his
arms and legs. The color of his skin is evaluated, among other
important factors that make up a baby’s “Apgar scores.”

Unfortunately for this mother, her child was deprived of

oxygen, a condition known as hypoxia, which is a lack of

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oxygen that led to brain damage. We claimed that the baby’s
distress was visible on the fetal monitor tracing that went
ignored, along with mom’s complaints. The doctor who was
responsible for this patient initially claimed the patient didn’t
need an emergency c-section, but then later changed his
testimony and claimed it really was an emergency c-section
because the baby was in distress.

Anoxia is a term doctors use to mean “no oxygen.”

Hypoxia is a term doctors use to mean “lack of oxygen.”

Either condition is extremely bad for the baby since our

brains require oxygen to survive. If the baby’s brain is
deprived of oxygen of a period of time, the baby can
experience permanent and irreversible brain damage.

In our case, I was able to successfully resolve the case in favor

of the mother and child. Obtaining appropriate
compensation as a result of the failure to recognize fetal
distress during delivery allowed mom to be able to support
her disabled and brain-damaged child for the remainder of
her life.
_____________________

NERVE INJURIES
Improperly Placed Suture Causes Permanent Nerve Damage

Here’s an interesting case I handled recently: It involved a

young man who put his arm through a window. He was taken

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to the emergency room where he was bleeding profusely from
cutting an artery. He had a “pumper,” with blood spurting
and pulsating out like a garden hose. While in the emergency
room a doctor tried to stop the bleeding by applying pressure
to the wound. This worked, but the young man needed a
blood transfusion since he lost a lot of blood during the five
minutes from accident site to the hospital.

After the bleeding was initially controlled, another doctor

came to stitch the wound. The doctor, while throwing stitches,
never realized that he put a stitch around the ulnar nerve!
This is a big “no-no.” Stitches are meant to tie off bleeding
vessels like veins and arteries. They are not meant to tie off
good, healthy nerves.

Importantly, while the patient was being stitched up, he yelled

out that his arm felt as if it had been ‘zapped’, similar to
hitting your funny bone. The doctor simply said “Don’t worry
about it, you’ll be fine.” Well, a day or two later, the young
man, thinking that it’s ok to have unusual sensations in his
had following this accident did not think much of the ongoing
discomfort he was having in his hand. By day three, he started
to think something was really wrong. His fourth and fifth
fingers were getting numb and were also painful.

The patient returned to the hospital, where it took some

coercion to get the clinic residents to evaluate his hand.
Despite the patient’s complaints, he was sent home, and told
it normal to have this pain following such an accident. Two
days later, the numbness and inability to move the fourth and

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fifth fingers brought the patient back to the hospital clinic.
Again, nobody recognized that the young man’s ulnar nerve
was dying off before their eyes.

This young man made a wise decision to get an opinion from

an experienced hand surgeon in New York City. Immediately
upon being examined, the hand surgeon advised the patient
that he had significant damage to his ulnar nerve, which
controls the fourth and fifth fingers. Exploratory surgery
revealed the patient’s worst fears:

“A suture used to tie off bleeding vessels had somehow been

used instead to tie off your ulnar nerve,” was what the hand
surgeon advised him. “As a result, your ulnar nerve was
deprived of oxygen and blood flow, causing the nerve to die.”
This young man was told that he’d need another surgery to
try and transplant another nerve from a different part of his
body into his arm to see if that would help. He was told that
nerves could regenerate, if lucky, at a rate of one inch per
month. In other words, a very slow process.

The second surgery went well, and he did not need a nerve
transplant. Instead, the existing nerve was cleaned up, and
stretched as gingerly as possible to get close enough to attempt
to reattach the two damaged ends of the nerve. Eighteen
months later, this patient still had loss of sensation and
decrease in function in his hand.

The moral of this tragic story is that this injury was totally
preventable. Had the emergency room doctor been careful

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in placing those stitches, and had the clinic residents
recognized the signs of nerve damage two days after the
accident, this event leading to permanent nerve damage
never would have happened.

End Result:

Through extensive investigation and many depositions, I was

able to finally learn that one or more doctors had sutured the
wound closed. What made this case so fascinating is that the
doctor or doctors who stitched this patient up, never wrote a
note in the hospital chart- It’s almost as if they knew what they
did was inappropriate and did not want to acknowledge it.

The case settled favorably during jury selection.

_____________________

Pain & Suffering

You Think You Have it Bad?

Just what exactly is ‘Pain & Suffering’?

It’s a term we hear often but we don’t think much about.

When a medical malpractice lawyer describes someone who
experienced pain and suffering, it’s usually in the context of
an injury they suffered because of someone else’s wrongdoing.
But what exactly does it mean?

It means that as a result of an injury, the victim experienced

pain. It means that the injured victim suffered as a result of

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improper care and treatment. If you ask someone who has
broken their arm if the experience was painful, the answer is
usually “Yes. It hurt a lot.” If you ask someone who broke
their hip about how their injury has affected their daily life,
you learn what suffering is. Suffering is being limited from
doing one’s daily activities, and having pain while trying to
do those activities. Walking, going up steps, lifting groceries,
getting into a car, opening the door, walking to the bathroom-
these are all activities that become limited with pain from a
fractured hip.

Everyone knows that people react differently to pain. Some

take pain medication like Tylenol, Advil, or Motrin. Others
ask for something stronger like vicodin or Tylenol #3 with
codeine. If you listen carefully to someone who’s been injured
you’ll hear how they have terrible pain when trying to walk up
the stairs. You’ll learn that when they sit in a chair, it takes
them ten minutes to get out of the chair for fear of
excruciating pain when trying to get up again. Watch how a
hip fracture victim gets into a car to go to the doctor. Watch
again as they struggle to get out of the car.

Imagine the awful feeling of trying to get into bed at night

while doing their best no to turn or twist suddenly. One wrong
move and the pain returns.

I have heard the phrase that “Pain is life’s window into hell.”
People in pain often do everything they can to get rid of the
pain. Pain limits us from moving and using our body and it
prevents us from living a full life. Our body is incredible. We

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can tolerate chronic pain, we can accept acute pain, and we
can even learn to live with some pain. If you ask a woman
who recently gave birth what the experience was like, she will
usually not tell you about the tremendous pain she
experienced. She’ll probably tell you what a joyous event it
was. The pain is immediate, and after the terrible pain passes,
she, as most of us do, will tend to put aside the horrible,
painful period of time our lives were made miserable.

Think about the last time you had a toothache that brought
you to the dentist. You went to the dentist to get rid of that
pain. Every time you chewed you had sharp pain. Each time
you had a cold drink or hot soup, the pain in your tooth was
unbearable. Everyone can sympathize with that type of pain.
Why? Because everyone has had that experience. They know
what it feels like. They know that the injection of numbing
medicine will take away that pain, and the dentist will stop
the pain from coming back. For that, they are grateful.

What happens though when an injured victim continues to

experience pain on a daily, hourly or constant basis? What
happens when the pain is made worse every time they move
an arm or a leg or twist in their chair? What happens when
that person has to reach up above the cabinet to get the dish
at the top, and that sharp pain shoots down their arm and
into their shoulder?

Is the answer to keep that person on heavy pain medication?

There are many risks to pain medication. They can cause
stomach ulcers. It can slow down our intestines and cause us

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to become constipated for long periods of time. People can
become addicted to pain medications that can destroy their
lives. So, if a person brings a lawsuit seeking compensation for
the harm they were caused, we often will include a claim for
their pain and the suffering that they have been caused to
endure. As part of that claim for ‘pain and suffering’ we ask
a jury to make an award from the time of the malpractice
until the time of trial. That is known as “Past pain and
suffering.” We also ask a jury to award compensation for what
this person will experience in the future. If their injuries are
serious and significant, there is a good chance their injuries
will last for the future, and possibly for the rest of their lives.
This is known as “Future pain and suffering.”

Compensation is an obligation by the wrongdoer to pay the

victim money for the harm that they have caused. It’s not a
handout; it’s not asking for sympathy; rather it’s a debt that
must be repaid in order to compensate the victim for the pain,
suffering and limitations they’ve endured, and will endure for
the future. Pain and suffering- hopefully you will never
experience it, but at least now, you will have a greater
understanding of what an injured victim has gone through.
_____________________

MORE BIRTH INJURIES

Your Child’s Been Diagnosed With Brain Damage and Cerebral Palsy

You’re in labor. Your due date is tomorrow. Your contractions

are not that strong and you feel the baby moving. The doctor
gives you medicine to increase your contractions, usually

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known as pitocin. The contractions help ripen the cervix, and
also places stress on the baby to ‘prepare’ the baby for birth.
Assuming no complications, the medicine to increase your
contractions will be increased over time.

A problem can occur when a doctor or nurse fails to

recognize that your baby is in distress and not responding well
to the normal stresses that a baby experiences during labor.
Maybe a fetal heart monitor isn’t being watched carefully.
Maybe there were other deliveries going on at the same time
that required your doctor’s attention.

In some cases a baby’s heart rate may change dramatically

and drop to dangerously low levels for an extended period of
time. This is known as ‘bradycardia’. In other cases a baby’s
heart rate might race for a period of time. This is known as
‘tachycardia’. In either case, the conditions require
intervention if they continue for a period of time. Failure to
intervene can have devastating consequences for the baby.

A baby whose heart rate is very low for a long period of time
may develop ‘hypoxia’, a lack of oxygen to the baby’s brain and
other vital organs. Other times, there may be a complete
blockage of blood flow causing anoxia, or an absence of oxygen.

Oxygen is crucial for life. Diminished oxygen or lack of

oxygen starves the baby’s brain and vital organs. Baby’s that
have experienced decreased oxygen during the birth process
tend to have significant developmental delays as well as other
significant medical problems.

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A parent will learn of a baby’s brain injury after birth, either
in the newborn nursery or in the early years during a visit to
the pediatrician. “Your baby isn’t progressing as they should.”
“The seizures your baby is having are not going away.” “Your
baby isn’t talking or walking yet, and they should have been
walking two years ago.” “Your baby can’t grasp items and
doesn’t track sound or hear well.” “Your child has cerebral
palsy, and will need long-term care.”

These comments are sure to trigger questions of “Why not?”

and “How did this happen?”

Questions to think about include:

Can my child hold her head up? Can she hear me? See me?
Does she grasp? Can she eat on her own? Can she dress
herself ? Does she have seizure-like movements? Does she
have unusual facial features? Is the size of her head unusually
large or small? Can she crawl? Can she walk? Can she talk?
Does she take to the bottle or breast? When you speak to her
does she look toward you? Can she write? Can she use a
utensil?

Learning the answers to these questions may not be easy. If

you believe your baby’s development is significantly delayed
or that your baby suffered brain damage as a result of the
birth, you should speak to an experienced New York medical
malpractice lawyer immediately.
_____________________

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BREAST CANCER
Do You Really Think Your Doctor Misdiagnosed Your Cancer?

Breast cancer is deadly. Just ask any woman. Evidence of

breast cancer clusters is becoming more common especially
in New York and Long Island. Mammograms, gynecology
visits, breast exams, biopsies and diagnostic tests are all
designed to detect and track changes in a woman’s breast.

As a lawyer who has represented injured victims for over 19

years in the State of New York, I’m going to give you 15
questions you should ask yourself if you’ve been diagnosed
with breast cancer.

1. Did you have any symptoms with your breasts to suggest

there might be a problem?

2. If you had noticed a problem such as a lump or discharge

from your nipple, how long did it exist before you went to the
doctor?

3. Do you regularly do breast exams on yourself- the way your

gynecologist showed you how to do it?

4. When you first went to a doctor with your breast

complaint, what did the doctor do about it?

5. What questions did the doctor ask about how long the
condition existed, or whether you noticed it getting bigger or
changing?

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6. Did the doctor do a breast exam while you were sitting up,
and also while lying down?

7. Was a mammogram ordered and done?

8. Was a needle biopsy done?

9. Was a CAT scan, MRI scan or x-ray done?

10. What were the results of the tests you had done?

11. Did your doctor tell you there was a chance the tests were
“false negative” or “false positive” suggesting they might not
be accurate?

12. If you were diagnosed with breast cancer, what type of

cancer was it? Slow growing, fast growing?

13. If the cancer was diagnosed earlier, what treatment would

you have received compared to the treatment you actually got?

14. Because of a delay in diagnosing your cancer, has your

life expectancy changed significantly, compared to what it
would have been if it had been detected when you first
presented to your doctor with your breast complaints.

15. What treatment do you need now, and what stage is your
breast cancer? Has it spread to other parts of your body?

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By answering these questions, you’ll have a better
understanding of what a lawyer looks for when you ask
yourself whether your doctor misdiagnosed your breast
cancer. A key aspect of failure to diagnose breast cancer cases
involve the question of what would have been done
differently had you been timely diagnosed?

As you probably know, treatment for breast cancer ranges

from surgical excision of a local cancer to mastectomy, where
the entire breast is removed. When mastectomy is done,
reconstruction and revision is often done at the same time.
Radiation and chemotherapy are also common treatments
that have significant side effects. As always, ask your treating
doctor which treatments are best for you. After that, ask an
experienced attorney whether your breast cancer should or
could have been detected earlier and whether your treatment
and outcome would have been different.
_____________________

PODIATRY MALPRACTICE
Bunions, Hammertoes & Bears - Oh My!

Bunions and hammertoes are two common problems people

have with their feet. Oh yes, corns too. Many people try to live
with these annoyances by wearing modified shoes, wearing
shoes of different sizes, or simply bearing with the discomfort
of disfigured and misshapen toes.

Many foot doctors, known as podiatrists, are more than happy

to recommend surgical procedures to get rid of bunions,

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hammertoes and corns. Some podiatrists fail to inform the
patient of significant risks associated with these seemingly
“routine” and “simple” procedures. Patients get lulled into a
false sense of simplicity and assume that it’s a ‘quick’
procedure and they’ll be up on their feet in days.

That’s not always the case where bone is removed from one’s
toes. In some cases the remaining ends of bone must be
connected together with wires, usually known as ‘k-wires’. If
those wires are removed prematurely, the bones may become
unstable and heal in an unnatural and awkward position,
leaving you with a permanent deformity. In other cases, a
doctor may take too much bone off, leaving you with an
overly shortened toe, which sticks up in the air.

Why are podiatric mishaps so significant?

Here’s a good analogy:

When you build a house, you first need a good foundation. You
can then build layer upon layer on top of that foundation
without fear the house will collapse. When dealing with feet, if
you damage your ability to walk or stand, your entire skeleton
and muscles will now shift to accommodate your changed in
gait (the way you walk) and your legs will begin to hurt as well
as your back. Your ‘foundation’ will be affected, placing undue
stress on other areas of your musculo-skeletal system.

What’s the alternative to having surgery to correct those

bunions, hammertoes and corns?

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The first line of defense is called ‘conservative treatment’.
This includes modifying your shoe gear. It also includes using
orthotics, also known as shoe inserts. Those shoe inserts can
be bought from your pharmacy, over the counter, or can be
custom made. In any event, they’re certainly worthwhile as an
attempt to reduce the pressure placed on your foot. In the
event the orthotics do not work, podiatrists may sometimes
try giving you anti-inflammatory medication or a course of
steroid injections to reduce inflammation and associated pain.
If after those ‘conservative treatments’ you still have
problems, you will probably be asked to consider having
surgery to correct your bunion, hammertoe or corn. Before
you agree to have surgery, make sure to ask your foot doctor
about the risks and benefits to the procedure. Ask how long
you’ll be off your feet (this is known as being non-weight
bearing). How long will you be on crutches? Importantly, get
references of other patients who have had this procedure with
this doctor. Learn as much as you can about the doctor and
the type of procedure that’s being recommended. Only by
being fully informed can you make an intelligent decision
about what procedure is right for you.

You may also want to get a second opinion, just to make sure
this is the correct procedure for you.

I hope these tips make you informed about your choices.

_____________________

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Your Doctor Was Sued, Is He Still a
Good Doctor?

You just found out that your treating doctor was sued for
medical malpractice. You do not know the details, nor do you
know what injuries the patient claimed as a result of the
alleged malpractice. Does the fact that your doctor was sued
mean that he or she is not a good doctor?

The short answer is “No,” and here’s why.

In this great Country we live in, an injured victim has a legal

right to seek compensation from those people he believes
caused him physical and emotional harm. This is true in New
York as well. Our civil justice system is set up so that if you
choose to bring a lawsuit against a doctor or hospital, then
the “burden” of proving your case is on the person bringing
the lawsuit. “That seems fair, right?”

In New York, an injured victim must show to a jury that what

he is alleging is more likely right than wrong. In other words,
he is not required to prove to a panel of 6 jurors that what he
is saying is 100% absolutely true. Instead, he is only required
to show that his version of his claim is “more likely true than
not true.”

“But what if a juror just isn’t sure about the injured victim’s
claim? What happens then?” The answer is that a juror does
not have to be absolutely sure. Instead, the juror just needs to
determine whether what the plaintiff (the injured person

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bringing the lawsuit) is saying is more likely true than not true.
If it is, then the jury is required to render a decision in favor
of the plaintiff.

During jury selection, a good trial lawyer may tell prospective

jurors that “Dr. Jones is a good doctor and we are not here to
dispute that. However, at a particular time, and at a particular
place, this doctor was careless and that carelessness caused
my client injury. When a doctor was careless, we expect that
person to take responsibility for their actions.”

To answer the question posed in the title of this article-just

because a doctor is sued for malpractice does not mean that
he is a bad doctor. This is especially true if the case has not
finished and is still in litigation. Most patients will not know
what the facts of the case are. They will not know what the
doctor’s defenses are. Nor will they likely know the patient’s
injuries and whether that patient is permanently disabled. For
all you know, the case may not have merit.
On the other hand, it may.

The bottom line: Don’t judge a person by accusations you

may have overhead somewhere else. Wait for the outcome.
Learn the details. If you are truly concerned, be
straightforward with your doctor. Ask him directly. Ask for
reassurance. The answer will help you make an informed
decision about whether to continue your medical care with
this doctor.
_____________________

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When Is The Worst Time To Be A
Patient In A Hospital In New York?

The answer is July or August of each year. Why? Simple.

That’s when the new group of doctors in training, called
residents, start their training programs. Other professions
would call them “rookies.” These doctors in training have just
graduated medical school, and are now starting their career
in their chosen medical specialty. Why is July and August the
worst time to be a patient? Because these new doctors don’t
have the experience necessary to know exactly what to do,
and more importantly, to know what NOT to do. Yes, they
rely on their senior residents, and in some cases the attending
doctors. However, in the middle of the night, when they’re
on call and handling multiple patient problems they are less
likely to ask a senior resident or an attending physician for
help- since they do not want to be seen as being inadequate
and incapable of handling patient’s medical problems.

The interns, also known as first-year residents, are the ones to

deal with much of the ‘scut work’ that the senior residents do
not want to do. Many are overwhelmed and mistakes do
happen more often during these months by the interns than
at other times of the year. There is a significant learning curve
that residents go through in order to gain enough experience
to be confident in their decision-making abilities. If you are
a patient in a hospital during this time, make sure you have a
family member be your advocate. Check and question
everything from pills that you receive to the medicine in the
IV bag. Ask lots of questions and find out what alternatives

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are available. Importantly, ask the “rookies” is they’ve
discussed your care with the attending physician and whether
he or she agrees with the plan.
_____________________

Thinking of Going to a Solo Practitioner? Read This Article

“They Laughed When I Told Them I’m
Using a Solo Practitioner”

A former client of mine related this story to me recently. It

was only after I had settled her case did she tell me what her
friends said shortly after she told them she hired a solo
practitioner for her injury case.

“How can you hire a one-man law firm?” one of her friends
asked.

“What happens if he gets sick?” asked another.

“How does he have the resources that a large firm has?” said
another good friend.

“What is it about him that made you choose him over the
other law firms you looked into?”

The answers were revealing.

She told her well-meaning friends that I was the only lawyer
who provided information to her before she ever came into
my office. None of the other law firms she spoke to would

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give her any information about cases like hers. In fact, out of
five New York law firms she contacted, I was the only lawyer
who actually got on the phone to talk to her. All the other
calls were intercepted by receptionists who wanted to set up
an appointment for her instead.

She explained to her friends that on my website I gave free

reports about how medical malpractice cases work. This was
new to her and the information was very helpful to
understand how a case works. She was also grateful to learn
how a lawyer actually evaluates a potential medical
malpractice case in New York. Before looking at my website,
she had preconceived ideas about what types of cases are
accepted by injury and accident lawyers in New York. My
reports helped her understand the procedure a lawyer must
go through to determine whether someone has a valid case.

This woman explained to her friends that she had spoken to

a paralegal at one of the big law firms in New York City
about how they communicate with their clients. This is what
she was told: “You’ll meet an associate when you first come
to us. They’ll gather all the information about your case.
Once we get your records and determine that you have a
valid case, your matter will be assigned to a team of lawyers
consisting of a senior trial lawyer, an associate and a
paralegal.” When she asked when she’d get to meet with the
senior trial lawyer, she was told that only if her case went to
trial would she meet with him. Otherwise she’d be dealing
with the associate on day-to-day matters. The paralegal was
very flip about how simple it was to get information from her

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and from the associate. “Don’t worry, we know exactly what’s
going on with your case every day,” was her comment.

When my soon-to-be client called this law firm later that day
to ask the paralegal more questions, her conversation started
out like this: “Thank you for calling _____ law firm. How
may I direct your call?”

“I’d like to speak to the paralegal I was speaking to earlier

about a potential case.”

“Do you know her name?” “No.”

“Well, we have over 20 paralegals here. How do you spell

your last name?”

“Never mind,” she replied, frustrated with being unable to

speak to the person she spoke to earlier.

Another law firm she spoke to refused to tell her anything

over the phone. This is understandable since there are many
legal dangers that arise if an attorney gives out legal advice
over the telephone. First, there’s no attorney-client
relationship when someone calls with a question on the
phone. Theoretically, anything that is discussed might be
discoverable at a later time. Second, there are so many facts
that may be missing that it would not be appropriate for a
lawyer to give legal advice based on incomplete information.
Ideally, the lawyer wants the person to come in, explain the
problem, and then give the potential client an informed and
educated decision based on their particular facts.
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However, many attorneys refuse to discuss anything with a
potential client until they walk in the door of their office.

What this young woman found particularly helpful were the

video tips on my video blog and my website that discuss
different areas of medical malpractice, wrongful death and
personal injury law. In my educational videos I offer useful
general information to help a website visitor understand how
the legal process works. In one video I explain in detail how
a medical malpractice lawsuit works from start to finish. In
another video I explain some of the interesting cases I have
handled where I have obtained compensation for my clients
who have been injured.

This woman also told her friends that she asked each law firm
she called how often the lawyer communicates with her about
updates on her case. These were the replies she received:

“We send you a quarterly letter advising you what’s going on

with your case.”

“Oh, we don’t send written updates. If you want to know

what’s happening, you have to call us. If we sent updates to
all of our clients on a regular basis, we’d spend most of our
day writing letters.”

When she came to my office, she was pleased to learn that I

send written updates once a month. She also learned that I
call my clients often and email them as well. She was even
more surprised to learn that I answer my own phone often,

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and always promptly return my client’s calls. There’s no
paralegal in my office that asks, “How do you spell your last
name?” My paralegal knows who my clients are, and gets to
know them well. There’s no associate who has to ask another
attorney, “What happened on that case the last time you went
on a conference in court?” There’s no running to the file or
checking the computer to find out what last happened on
your case, because in my office, I am the only one who
handles your case, start to finish. I know exactly what is going
on with your case at any time, because I am the only one who
handles it. Not a paralegal. Not an associate. Not a junior
partner. Just me; a solo practitioner who has been in practice
in New York for twenty years.

This woman asked me during our first meeting “How can

you compete with the big law firms in terms of legal
research?” My answer shocked her. I told her I don’t need a
big law library with musty old law books. Everything I need
is on my computer. Legal research is all computerized now.
The solo practitioner has the same legal research capability as
the largest law firm. I told her that if a case was beyond my
reach and required resources that I simply did not have, I
would never accept it and would refer the potential client to
another law firm that did have the ability to handle it.

Importantly, I mentioned that if she felt the need to go to a

large law firm in New York City and help pay for their fancy
offices and beautiful mahogany furnishings and gorgeous
floor-to-ceiling windows with offices looking out over the city,
then by all means she should go there. However, I also told

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her that those beautiful offices don’t win lawsuits. It is the
attorney who occupies a particular office that wins cases.
Regardless of whether that office is in Manhattan or Long
Island. “If you want to be another fish in the ocean, I’m sure
you will be very happy with that law firm. If however you
want to have personal attention every step of the way, then a
small law firm is the one for you.”

I am pleased to say that this woman was extremely happy

with her choice of attorneys. After she finished explaining her
reasoning to her friends, you didn’t hear any more laughing
over her choice of attorney for her case. The only comments
she heard were “You know, you’re right.” “I’m sorry I
doubted your choice of lawyers.” “I didn’t realize there was
such a difference between law firms.”

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ABOUT GERRY OGINSKI

Gerry Oginski is an experienced medical malpractice &

personal injury trial lawyer practicing law in Brooklyn, Bronx,
Queens, New York, Staten Island, Nassau, Suffolk & Long
Island and has been in practice since 1988. He is a graduate
of Touro College, Jacob Fuchsberg College of Law in
Huntington, NY and he is admitted to practice law in New
York and Connecticut. His main office is located in Great
Neck, Long Island, and he has affiliate offices in Brooklyn
and Staten Island.

Gerry prides himself on knowing all the details of each case

he handles. Cases are not handed off to associates. When a
client calls, he doesn’t need to check a file to determine what
happened last on the client’s case. He knows what happened,
since he was the one who handled the matter.

Gerry has become a prolific writer and publishes a monthly

newsletter full of legal news, fun trivia games, and a never-
ending fictional story that has won him accolades with all who
read his newsletter. In addition to his newsletter, he has
produced and created an entire video library of instructional
videos that help consumers learn about medical malpractice
and accident law in New York.

Gerry welcomes all calls about any accident or injury from a

doctor or hospital in the State of New York. He promises to
give you a straightforward and honest answer about every
question you ask. Take a look at his website, where he has

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over 250 FAQ’s, free reports about medical malpractice,
wrongful death and accident cases, actual testimony of
doctors in cases he’s handled, and an entire video library you
really should see.

If that’s not enough, take a look at his blog where he offers

free information about medical malpractice and accident law
and when you’ve finished reading his blog at
http://www.nymedicalmalpracticeblog.com, jump over to his
video blog where he has most of his videos posted at
http://www.nymedicalmalpracticevideoblog.com and also
http://www.medicalmalpracticetutorial.com. You’ll be glad you did.

Gerry is also a member of the following legal

organizations:

• New York State Academy of Trial Lawyers

• New York State Trial Lawyers Association
• Brooklyn Bar Association
• Queens County Bar Association
• Nassau County Bar Association
• American Association for Justice (formerly known as the
Association of Trial Lawyers of America.)

Community Services:

As part of giving back to the community, Attorney Oginski

has lectured to high school students interested in medicine.
Here’s what these students had to say: “Dear Mr. Oginski,
Thank you for taking the time on Wednesday, January 21, to

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meet with the Medical Explorers and to explain your career
to us. We found it very interesting that you had started out
going to school as a Pre-Med student and ended up studying
law. Through your experience, we were able to learn that we
can still be involved in medicine without necessarily becoming
doctors. Your description of the anatomy of a malpractice
suit was fascinating! We did not realize the amount of
investigational and procedural work needed to even file a
complaint, let alone argue the Plaintiff ’s case. It is amazing
how much time and effort goes into proving a doctor’s
departure from good care at one particular moment, on one
particular day. The tips you gave us on how to practice
aggressive medicine were very informative. We now have a
greater understanding as to the importance of writing things
down and keeping good records. It did not occur to us how
crucial minor notes could be in a malpractice lawsuit. Once
again, thank you for coming to speak with us; it was a
pleasure to have you! Sincerely, Amanda G., Secretary,
Medical Explorers.”

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TESTIMONIALS
Read what others have said about Gerry’s Legal Services

Let me begin by saying that I am writing this letter on behalf

of my mother with much of her input. She would like to
extend her warmest thanks and let you know that she is very
grateful for your hard work and persistence. It has been an
extremely long battle from surgery to litigation, and finally to
settlement. Along the way, much has happened with my
mother that could have potentially posed a problem. You
were very understanding in having to correspond with me
during my mother’s fragile state. You did an exceptional job
in keeping me abreast of your every move on this case. You
treated us with the most respect and made my mother feel
that her case and her best interest was priority to you.

Your level of expertise was apparent from the beginning of

the case right down to the settlement attained. Again, it’s been
a long haul and as a daughter, I am grateful that my mother
had you to represent her. The final outcome of this case has
given my mother more than just monetary relief. It has given
her a silver lining for the toughest three years of her life.
Thank you again from the bottom of our hearts.

The overall efficiency of your office was stupendous,

professional and caring. Your response to return phone calls
was excellent. I was always called back the few times I left any
message. How do you rate our services to you? Excellent. The
paperwork accuracy was excellent. I received updates all the
time throughout the case.

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Gerry was friendly and caring and made me feel comfortable
when calling. Your professionalism was outstanding. I had
never been treated better throughout the three years. The
whole process I went through took almost three years, but
somehow it doesn’t seem that long because Gerry Oginski
and his office were constantly keeping me updated on what
was occurring. I think that made it feel like it was just the
other day we met.

Please know that if you are in Gerald M. Oginski’s hands,

you will have the best representation available anywhere.

Victoria Soto and J.P. (Daughter), Queens, N.Y.

______________________

My first visit with Gerry Oginski was a little overwhelming

since I did not know him or he us, and it was only about 2
months after my surgery. He gathered information needed
and was very accurate in giving us the time frame for the
settlement, if there was to be one. His fee statement was
accurate and helpful when we reviewed it at home.

At any time during the case, I was able to call Mr. Oginski and
ask questions that were on my mind. I also noted that a phone
call after business hours was no problem. Frances, his assistant,
was also very helpful and courteous on the phone. She was
prompt and always made sure my requests were satisfied.

Mr. Oginski always made me feel that I was very important

to him and seemed very concerned about my future. We were

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very happy about the settlement, since we were not sure we
had a case, although I felt we did. He led us through the case
and kept me posted on all information pertaining to the time
and place of the trial.

I was very confident with Mr. Oginski and his office. I would
recommend him with great confidence knowing he would do
his best for all his clients. Thanks again.

Dina Martirano, Westchester, NY

______________________

We are very happy with the settlement that you obtained.

This was a great accomplishment that was made possible by
your dedication and experience. Your sincere and caring
manner helped to make this experience easier than expected.
We truly felt as though we were being helped by a good friend
and this case was not just another file number. We would be
happy to recommend you to anyone. You’ve been great!
Thanks for everything.

V.A. & L.A., Brooklyn, NY

______________________

How can I find the right words to thank you? Your kindness
and caring meant so much to my sisters and I. Thank you for
being the person you are. You are a wonderful young man.
My mother must have sent you to us. You always knew the
perfect words to make us feel better. Thank you for working
so hard to see that justice was done for our mother. I feel like

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a bond was formed between us. You showed us you cared,
not only about us, but our mother. I thank you from the
bottom of my heart. May god bless you and your family.
Barbara Piekarz, Brooklyn, NY

It is with total respect and appreciation for Mr. Oginski and

Frances that I write this short “thank you”. My process was
handled with total professionalism, knowledge and
compassion. Yes, I am pleased with my settlement, because I
am confident that Gerry was totally dedicated to the most
favorable outcome possible. Good luck with your book. Keep
the newsletters coming.

Millie Provenzano, Staten Island, NY

______________________

From the very beginning, Gerry displayed very good

professionalism. He was able to be professional as well as
showing concern and care at the same time. His
documentation and follow-ups were very reliable, and we
would definitely recommend him to a friend or family
member in need of his services. As far as the settlement is
concerned, we are extremely happy with the outcome.

Joseph MJU, Atlanta, Georgia

______________________

Gerry and Frances (Gerry’s secretary) were very helpful and

knowledgeable when they advised me throughout the process.
Their help made the process run very smooth. I am very

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grateful for all they have done for me and am very happy with
the outcome of my settlement.

Susan Choinski, New Hyde Park, NY

______________________

I have never been involved in a lawsuit until recently, and I

am thankful you accepted my case and represented me. You
always returned my calls. In fact, you answered your phone
yourself at times. Your Legal Assistant, Frances, was also
excellent. Any time that I spoke with her, she always knew
everything about my case and always answered my questions
with a knowledgeable and detailed answer. It did not take me
long to realize that I was in excellent hands, and that was
comforting in itself. I was satisfied with the settlement outcome
considering the nature of my injury. Very much so, you and
your office are as professional as it gets because you care.

Thankfully and sincerely yours,

Mitchell Bartnicki, Brooklyn, NY
______________________

Hi Gerry, I want you to know I think of you often, and can

never thank you enough for all you have done for my sisters
and me. You are the best. I hope you and your family are
doing great. I miss your smile and your beautiful personality,
and your great suits. May god bless you and your family.

Love you, Arlene D., Brooklyn, NY

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Dear Attorney Oginski, Thank you very much for your
wonderful help and an invitation to appeal to you if I ever
need it again in the future. It is so soothing to know a person
so caring and professionally top competent like you. Thank
you also for your warm wishes for health for my family and
me. Same to you and your family and great successes in your
brilliant career. I will definitely pick up the phone to call you
if I need you again.

Mircela Nita, Queens, NY

______________________

I was very pleased with your professionalism & courtesy that

you provided to my daughter’s case as well as my family. I
would strongly recommend you to anyone seeking
justification.

Johnny Celestin, Queens, NY

______________________

During the time of Mr. Oginski handling my case, he was

very courteous and pleasant to work with. His work was very
thorough, efficient, swift and precise. All of these words define
excellence. I would recommend Mr. Oginski to anyone who
asks for legal advice.

Jeanette Mason, Brooklyn, NY

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Mr. Oginski kept us abreast of all issues and matters. He was
a true professional and extremely knowledgeable. The
settlement, given our circumstances, was very acceptable.

Anthony Gonzalez, Queens, NY

______________________

Dear Mr. Oginski,

This letter is to express my greatest appreciation and

gratitude for the way you handled my malpractice suit. You
produced very satisfying and timely results. Thanks for your
professionalism and expert representation.

I am able to maintain a secure life in spite of my disabilities,

which was a result of the defendants’ negligence. I’m able to
pay my medical bills and other everyday expenses because of
the great work you and your firm put into this case. Again
thank you so much for your help.

I will recommend you to a relative or friend who would need

a lawyer with confidence that they would benefit and be
highly satisfied with your assistance.

Donna L. Williams, Brooklyn, NY

______________________

The process I went through was made easy because of you

Gerry and Frances. I think you got us a good settlement, and
I know you worked hard for us. I liked your smile when you

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greeted us, and I felt proud that you were our lawyer. I also
liked your suits; you always looked so handsome in them. God
bless you and your family.

Arlene DiFalco, Brooklyn, NY

______________________

Recently, I received this wonderful note from one of my

clients, S.P., New York, NY

She wrote, “Going through the litigation process was difficult

because I had to re-live the surgery, but Gerry, you made
everything flow and very easy. Your law office is the definition
of what an ideal legal professional should be. Gerry, all the
research and knowledge you had regarding malpractice law
and other cases made me very impressed as a client. It was an
exceptional service and I will never forget it.”
_______________________________________

I received this incredible note from a man, whose case I felt,

did not have merit. “Dear Mr. Oginski, I can’t thank you
enough for sending me the most helpful package of
information concerning medical malpractice. It has
heightened my awareness to a degree of confidence that will
allow me to make more informed decisions.”

Sincerely yours, B.Z., Glendale, N.Y

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“Gerry impresses me constantly, I have known him and
actively worked with him for many years. He is very smart
and active with his online marketing. He knows everything
there is to know about Medical Malpractice cases in New
York and he is on my short list of recommendations when
people ask me for a lawyer in NY! I can’t say enough good
things about him!”

Tom Foster, Washington, D.C.

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 Contact Information

The Law Office of Gerald M. Oginiski, LLC

25 Great Neck Road, Suite 4
Great Neck, NY 11021

For answers to your legal questions,

call Gerry personally.
He welcomes your call.
516-487-8207
email: lawmed10@yahoo.com

Visit Gerry’s educational and popular website to learn more

about wrongful death, medical malpractice and accident
law in the state of New York.

I guarantee there’s something there for you.

www.oginski-law.com