An Insider’s View of Medical Malpractice Cases in New York

Secrets of a New YorkMedical Malpractice

& Personal Injury Attorney

Copyright © 2009 by Gerry Oginski

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author.

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ISBN: 978-1-59571-440-4

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An Insider’s View of Medical Malpractice Cases in New York

Gerry Oginski, Esq.

Secrets of a New YorkMedical Malpractice

& Personal Injury Attorney

This book is personally designed for victims and families of injured victims. It has been carefully prepared by Attorney Gerry Oginski, an experienced New York Medical Malpractice & Personal Injury lawyer. This book contains important information about how medical malpractice & injury lawsuits work. Gerry has written these infor-mative articles and reports to make you a better informed consumer of legal services in the State of New York. The more informed you are, the better choices you’ll be able to make. Enjoy your reading, and as always, if you have any questions, pick up the phone and call me at 516-487-8207.

Best regards, Gerry Oginski, Esq.

Client Rights

You have the right to:

1. Be fully informed about your case at all times.

2. Know and understand how your lawsuit works.

3. You have the right to see all documents that are exchanged with the defense lawyers.

4. Be present at all question and answer sessions known as depositions, for all named parties in your case.

5. Know the strategy your lawyer intends to use to prosecute your case.

6. Know if there are any conflicts that arise.

7. Know what costs your lawyer incurs to prosecute your case.

8. Be treated with the respect and dignity you deserve.

9. Know when the defense lawyer(s) offer money to settle your case.

10. Read the deposition transcript of any party you have sued in your case.

Client Obligations

For the injured victim who is invited to become our client, it is your obligation to:

1. Assist us in every phase of your case.

2. Respond to each inquiry we send you, whether it is by tele-phone, mail, or e-mail.

3. Help us help you.

4. Keep me informed about any new doctor that you are seeing for treatment.

5. Let me know if a problem arises with any treating doctor.

6. Advise me immediately if you feel you are being followed or videotaped.

7. Try to obtain any records or receipts we ask you to locate.

8. Send me copies of any insurance papers, explanation of benefits, receipts, bills and any correspondence from doctors or hospitals.

Table of Contents

i. Who Am I and Why Should You Trust Me? ..............................................................................................xiii

ii. Anatomy of a Lawsuit ............................................................................ xv

ii. 10 Reasons Why Most Victims Won’t Recover a Dime ........................................................................xvii

iii. 10 Reasons Why You Shouldn’t Sue Your Doctor ................................................................................ xxiii

Section 1 - What to Look For When Choosing a Lawyer

1. Top 10 Things to Look for in a Medical Malpractice and Personal Injury Attorney ....................................................................... 3

2. Attorney Advertising: How to Choose an Injury and Medical Malpractice Lawyer ................................................................................ 9

3. What Exactly Does a Personal Injury and Medical Malpractice Lawyer Do? ............................................................................................13

4. 10 Reasons Why You Should Call a Lawyer .................................................................................................19

5. Dead Man’s Family Calls NY Malpractice Lawyer First Before Burying Him ..........................................................................................23

6. How To Get Compensated for Your Injuries without Hiring a NY Lawyer ................................................27

7. Secrets of a NY Malpractice Lawyer ....................................................29

8. 5 Tips to Help You Decide Whether Your New York Lawyer is Right for You ...........................................33

9. Top 10 Reasons Why You Won’t Find a New York Injury Lawyer in the Yellow Pages .........................................................................................37

10. 10 Facts Your NY Personal Injury and Medical Malpractice Attorney May Not Tell You .................................................................................41

11. 4 Things Your New York Injury Lawyer Looks For When You Show Up in His Office ...................................................................................47

12. Why You Shouldn’t Rely on a Lawyer Who Tells You Your Case is Worth Millions .......................................................................49

13. 5 Deadly Sins that Could Wreck Your Injury Claim ...............................................................................51

14. Righting a Wrong: NY Medical Malpractice Lawyer Explains .............................................................53

15. You Walked into the Hospital but Came Out Paralyzed ...........................................................................57

16. Why Won’t You Take My Small Medical Malpractice Case? ................................................................59

17. Why Shouldn’t I Let My Family Lawyer Handle My New York Medical Malpractice Case? ................................................................61

Section 2 - Do You Have a Valid Case?

20. 5 Reasons Why Your Malpractice Case Wont Be Accepted by a New York Malpractice Lawyer ..........................................................65

19. 2 Questions Every NY Malpractice Lawyer Needs To Ask .........................................................................67

20. 10 Things You Absolutely Need to Know to Start an Injury Lawsuit ...................................................69

Section 3 - How Lawsuits in New York Work

21. A Medical Malpractice Victim’s Guide to Compensation in New York. Part 1. .................................................................................75

22. A Medical Malpractice Victim’s Guide to Compensation in New York. Part 2. .................................................................................77

23. What is Your Life Worth? ....................................................................81

24. 5 Typical Defenses in a Medical Malpractice Case .................................................................................87

25. 15 Key Deposition Techniques in a Medical Malpractice Case ..........................................................89

26. What is a Deposition and Will I Have to Testify? ...................................................................................95

27. Judgment Non Obstante Verdicto - What is it, and Why Should You Care?..............................................................................................97

28. What is “Summary Judgment?” .........................................................98

29. Injured in a NYC Hospital: How Much Time Do I Have to File a Claim? .....................................................101

30. What is “Falsus in Uno?” ...................................................................105

31. Your Case is on the Trial Calendar - Can Defense Lawyers Talk to Your Doctor? ...............................................................................................107

32. Is a Doctor’s Past Legal History Admissible in My Current Lawsuit? ...............................................109

33. When is a Settlement not a Settlement? ..........................................111

34. Cross-Examination of an Expert Medical Malpractice Witness in an Erbs Palsy Case .........................................................115

35. Can I be in the Room When You Question The Doctor Who Botched My Surgery? .......................................................................................119

36. Do I Need An Autopsy To Prove Our Death Case? ...............................................................................121

37. Why are Some Settlements Confidential? .......................................123

38. What is Medical Malpractice? ..........................................................125

39. What is Lack of Informed Consent? ................................................127

40. What is Continuous Treatment? ......................................................129

Section 4 - Different Cases

41. Slip & Fall on Snow or Ice: Can You Get Money for Your Injuries? ..........................................133

42. Breast Cancer: “The Doctor Delayed My Diagnosis, Do I have a Case?” ............................................................................137

43. Colonoscopy: “He Perforated My Colon, Do I Have a Case?” ........................................................139

44. Can I Bring a Lawsuit Against My Plastic Surgeon if He Destroyed My Breasts? .....................................................................141

45. Car Accidents in NY: 7 Reasons You May Not Want to Sue ................................................................145

46. “What Color Was the Light?” asked the Police Officer ....................................................................151

47. Your Child’s Been Diagnosed with Brain Damage and Cerebral Palsy ..................................................153

48. Dental Malpractice: Pain during Treatment, Do I Have a Case? .........................................................155

49. In Case of Death - Part 1. How to Find Your Way After Your Loved One has Died ....................................157

50. In Case of Death - Part 2. So, You Want to Sue. .........................................................................159

51. In Case of Death - Part 3. Warning! ...............................................163

52. In Case of Death - Part 4 ...................................................................167

53. In Case of Death - Part 5. Money .....................................................171

54. You’re Driving Through an Intersection and All You Remember is a Loud Crash. .............................................................175

55. How Does a Doctor “Fail to Diagnose a Heart Attack?”.................................................................179

56. Bunions, Hammertoes & Bears... Oh My! ................................................................................................183

57. Do You Really Think Your Doctor Misdiagnosed Your Breast Cancer? ..................................................185

58. What is Shoulder Dystocia & Erbs Palsy? .......................................187

59. Failure to Diagnose Ectopic Pregnancy ..........................................189

60. 5 Ways to Know Your Baby Might be Victim of Medical Malpractice..........................................................191

61. Failure to Diagnose Lung Cancer: The 10 Most Important Things Your Lawyer Needs to Know ......................................................................195

62. What Does it Mean if a Doctor is Board Certified? ..............................................................................197

63. How to Become a Medical Malpractice Lawyer in New York ......................................................199

64. Future Medical Expenses: Who Pays? Not the Doctor ................................................................203

65. Pain & Suffering: You Think You Have it Bad? .................................................................................205

66. Don’t Judges Know Not to Give Gifts to Litigants? .......................................................................209

67. Why is Your NY Doctor Afraid to Treat You? ............................................................................213

68. 5 Reasons Why Your NY Injury Lawyer Will Lose His License ...........................................................215

69. New York MD’s Malpractice Insurance Premiums, is $170,000 Enough? .......................................................219

70. NY Anesthesiologist Uses Syringes Twice! Hepatitis Found ......................................................................223

71. Frivolous Lawsuits: Are They Fair Topics When Picking a Jury? .....................................................225

72. Why is Your NY Injury Case Worth Only $250,000 and Your Neighbor’s Case is Worth $500,000? ................................................227

73. Medicare Refuses to Pay for Medical Errors .....................................................................................231

74. My Bicycle Accident: A Detailed Account of a Woman Who Didn’t Care ...........................................233

75. Would You Allow a Trial Judge to Sit as a Juror on Your Malpractice Case? ...............................................................................239

76. How Can Small Claims Court Help Me Get Justice? ..........................................................................241

Final Commentary by Gerry .............................................................245

i Who Am I and Why Should You Trust Me?

Welcome to my law firm. My name is Gerry Oginski and I am a medical malpractice & injury trial lawyer practicing law here in the State of New York. I practice in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk counties.

If you’re reading this, it means that you’re interested in my firm and what I can do to help you solve your legal problems. I’ve created this book to educate and inform you about how cases like yours work. My practice focuses solely on helping accident and malpractice victims. I strive to exceed your expectations and do everything possible to make you the center of attention at my firm. When you arrive at my office, you are never treated like a file number, and are always given the personal attention you deserve.

To give you an idea of my background and how long I’ve been doing this, I want you to know that I’ve been in practice since 1988. I started my legal career working for an aggressive Wall Street law firm in New York City where I represented doctors, hospitals and people who were sued by injured victims. I had the privilege of learning from one of the best defense lawyers in New York City and gained tremendous trial experience handling all types of injury and medical malpractice cases.

After four satisfying years defending every type of accident and malpractice case you can imagine, I realized that my true calling was representing injured victims and the families they left behind. Over the next four years I worked for a small, well-known and well-respected law firm in Brooklyn where I represented injured people whose lives were shattered as a result of horrific accidents and medical errors. In my quest to become the best attorney I could be, I joined forces with a large personal injury law firm in Queens where I was the senior trial attorney handling all of the firm’s medical malpractice cases.

After six incredible years with this Queens law firm helping injured victims, I decided I could better serve my clients by opening my own law firm in Great Neck, N.Y. The name of my firm is The Law Office of Gerald M. Oginski, LLC. I truly enjoy helping injured victims and their families obtain compensation that they’re entitled to. It gives me great personal satisfaction knowing that my efforts make a differ-ence to people who have been irreversibly damaged.

For those of you interested in my educational background, I gradu-ated college from SUNY Stony Brook in 1985, and obtained my law degree from Touro Law School, Jacob D. Fuchsberg Law Center in Huntington, N.Y. in 1988.

Every lawyer in New York is required to participate in continuing legal education, and every year I attend legal seminars on a wide range of topics including trial practice, jury selection, cross-examination, evidence, wrongful death, negligence and medical malpractice.

I am a member of the New York State Trial Lawyers Association, New York State Academy of Trial Lawyers, the Brooklyn Bar Association, the Queens County Bar Association, the Nassau County Bar Association and The American Association for Justice (formerly known as the Association of Trial Lawyers of America).

Throughout this book, I offer insight into how to choose a lawyer in your time of need, explain how lawsuits work in New York, and give you ideas about different types of cases that might be similar to your situation. As always, learn as much as possible, become informed, and then call an experienced medical malpractice & personal injury attorney to help you with your legal problem. Don’t rely on a book or a friend to give you advice. Rely on a qualified professional who can evaluate your matter and give you the personal attention you deserve. Thanks for taking the time to read this.

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ii Anatomy of a Lawsuit

Summons & Complaint

Supreme Court of the State of New York County of New York

John Victim (Plaintiff)vs.

Careless Physician, M.D. (Defendant)

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iii Medical Malpractice: 10 Reasons Why Most Victims Won’t Recover a Dime

Despite popular opinion about the “skyrocketing” increase in malpractice suits and awards, the number of suits has not increased since 1996, and in most cases, plaintiffs receive nothing. There are a variety of reasons why patients do not recover any compensation for injuries suffered while receiving medical care. Most of these issues stem from general misconceptions about medical malpractice. It is important for potential malpractice victims to understand these issues while seeking counsel to represent their case.

1. Patients don’t know they are victims of medical malpractice.

Studies show that roughly 2.9 to 3.7 percent of admitted hospital patients suffer some sort of preventable injury as a result of medical management (i.e., not from the original medical condition). Even more management-related injuries occur outside of the hospital. These injuries are a result of a physician/administrator’s affirmative mistake, or that person’s failure to act in a particular situation. Types of mistakes include errors in diagnosis, use of automated materials, and inappropriate delay of treatment.

However, one of the most common errors occurs with adminis-tering medication. The Massachusetts State Board of Registration in Pharmacy estimates that in Massachusetts alone 2.4 million prescrip-tions are filled improperly each year, the majority of which involve providing the wrong strength drug, or the wrong drug altogether. Each layer of communication introduces another opportunity for error. Improper diagnoses and negligent supervision of trainees are other common errors, and both have led to disastrous results in many cases. Up to 98,000 patients are killed each year as a result of preventable medical errors, the eighth leading cause of death in the U.S., yet only 10,000 cases of malpractice are filed each year. In the vast majority of cases, however, the fact that a poor medical outcome was caused by malpractice is hidden from the patient.

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2. No autopsy was ever performed.

Remember that we must prove both carelessness on the part of the doctor or hospital and that the carelessness resulted in death or injury. In a medical malpractice case that results in death, it is extremely difficult to prove that the death occurred because of the malpractice without an autopsy. This is because there are so many reasons why a person might have died, but we must prove that at least one of the reasons for the death was the negligence or careless-ness of the doctor or hospital.

3. A physician’s poor bedside manner does not constitute negligence.

In the vast majority of cases, even egregiously poor bedside manner cannot be considered in determining whether a physician was legally negligent in providing treatment. We have reviewed many cases where arrogant doctors provided care and the patient was injured. It just doesn’t matter legally that the doctor was a jerk. We must prove with expert medical opinion, that the treatment departed from good and accepted medical care, and not bad bedside manners, that caused injury.

4. The patient suffered no significant damages.

As we noted above, the legal system is not set up to handle small medical malpractice cases. We decline hundreds of cases a year where it appears that the doctor was careless but the resulting injury is not significant. A pharmacist may incorrectly fill your prescription, and you might get sick for a few days. If you have a good recovery however, you probably don’t have the basis for a case. That’s because the costs of pursuing the case will be greater than the expected recovery. Our Court system may not be perfect, but it does act as a filter to keep out all but the most serious cases of medical malpractice.

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5. The physician or hospital’s mismanagement did not necessarily cause the injury suffered.

As discussed earlier, it is very difficult to prove that medical wrong-doing was the reason why the patient suffered the injury that he or she received. The insurance companies have many standard defenses including, for example, that (1) The injury was an unforeseeable consequence of the initial condition/injury, (2) The injury was due to the patient’s non-compliance with prior medical advice, (3) The risk of the patient’s particular injury was a known, recognized, acceptable risk (acceptable to whom?), (4) Some other party was responsible for causing the injury, or (5) The injury was caused by a previous illness or disease.

Medical malpractice claims must show that the doctor’s substandard care, more likely than not, was a substantial factor in causing injury.

6. The injured patient has not retained an experienced attorney.

The world of medical malpractice claims is a world unto its own. It has its own special rules and laws. We believe that it is imperative that an experienced medical malpractice attorney or an attorney that is ‘teaming up with’ an experienced malpractice attorney, represent you.

7. The statute of limitations has expired.

This is the time a person has to start a lawsuit. The time limit is very different for a city, state or municipal hospital than it is for a private hospital or doctor. One reason that you should consult an experi-enced medical malpractice attorney early is to determine when the statute of limitations expires in your case! Don’t let your time run out without knowing your legal options!

8. Jurors have been biased by the insurance industry.

The insurance industry has spent millions of dollars funding research to suggest that there is a widespread problem with respect

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to medical malpractice suits. These studies claim that excessive verdicts are causing malpractice insurers to raise their premiums, forcing physicians out of the medical profession. It has been proven that increased medical malpractice premiums have nothing to do with lawsuit verdicts! Even the American Insurance Association has said that lawmakers who enact “tort reform” should not expect insurance rates to drop! Jurors who hear the insurance company propaganda then award less of a verdict than they would normally have deemed appropriate. Unfortunately, after the verdict is reduced on appeal, malpractice victims often receive less than is necessary to pay their medical bills for treating the subsequent injury that was caused by the malpractice. Even your doctor probably believes that by capping, or reducing damage awards, this will cure all that is ill with the legal system.

Nothing is further from the truth. The medical malpractice insur-ance companies are in business to make money, not to pay out money. The more they pay out in claims, the less profit they and their shareholders take home. I have always asserted that if the doctors wanted satisfaction in reducing their inflated premiums, they should look no further than their own malpractice insurance companies. By demanding rate reductions and by threatening to obtain coverage elsewhere, the insurance companies have to realize that their rates must be re-evaluated. Also troubling is why physicians have not banded together to open competing insurance companies in order to obtain reduced rates.

9. The injured patient is unable to hire good qualified medical experts.

You cannot win a malpractice case without a medical expert. A good expert who is willing to testify can be hard to find. It is becoming increasingly difficult to find doctors who are willing to stand up for what is right and to right a wrong. It takes time and money to find the best experts for your case. This is one area where insurance companies have an advantage. If they have a case that is particularly bad for their doctor, they may show the case to many experts before they find one to support the defense (or concoct a defense). They

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can afford to hire many experts. Most plaintiffs cannot afford to have ten experts look at their case in order to determine which expert will work ‘best’ for them.

Increasingly, doctor’s professional groups are now attempting to bring claims against doctors who testify against other doctors. These claims seek to revoke the doctor’s board certification or punish the expert doctor for testifying for a patient. This has happened recently in the field of neurosurgery and obstetrics and gynecology. The potential threat of professional repercussions for testifying on behalf of a patient will significantly inhibit many doctors from helping injured victims in seeking justice and proper compensation.

10. Juries like doctors.

Folks sitting on juries rely on doctors when they’re sick. They trust their doctor. Their family uses the doctor. The doctor has trained for many years to learn their specialty. How can the doctor be faulted for something that would have happened even if good care were rendered? Fighting a malpractice case is an uphill battle. But, with proper information, the right facts, the right experts and an experi-enced attorney, you stand a much better chance of knowing the risks of taking your case to trial.

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iv 10 Reasons Why You Shouldn’t Sue Your Doctor

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 treat-ment. 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.

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

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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 rehabili-tation. The injured victim will not be a burden on a City or govern-mental 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 malprac-tice victim.

3. Your doctor’s reputation will be tarnished

Contrary to popular opinion, (or at least from the doctor’s 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 medi-cine and there will usually be no disciplinary action taken as a result of a civil medical malpractice lawsuit. The belief that a doctor’s repu-tation 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.

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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.

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 accor-dance 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

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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 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 apolo-gized? 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 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.”

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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 compensa-tion 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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Section 1

What to Look For When Choosing a Lawyer

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1 Top 10 Things to Look for in a Medical Malpractice and Personal Injury Attorney

Being injured is no fun. Not knowing where to turn, who to trust, and what to do about your medical bills is frustrating.

Most people will never need a malpractice lawyer. That’s good. Most people will never need a personal injury lawyer, and that’s good too. But there are folks who do get injured because of someone else’s fault, and they’re the ones who DO need an attorney.

Maybe you know of a friend of a cousin who was related to someone who knew an attorney. You could call him to ask him questions about your accident. Maybe you could look in the Yellow Pages and call someone who has a big ad. Maybe you could walk into a store-front lawyer’s office, right off the street. Maybe you could call the 800 number on a billboard you saw. You could do all of these things and maybe you’d be okay. Then again, maybe not.

The purpose of this article is to provide you, the consumer, with information about what you need to know before you ever step into a lawyer’s office. I know some lawyers who want to wait till the client gets into their office to explain to them their options. This way they can show off how brilliant they are- and maybe they are. But why not give the client information about how to choose an attorney, and let the client make their choice about who to use.

But, how do you choose among the many lawyers who advertise for your attention? The answer is not an easy one. Remember, not every lawyer advertises. Of those that do, not all of them are trial lawyers. You must ask.

So, here are the top ten most important things you need to look for in a medical malpractice or personal injury lawyer:

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1. Experience

How many years has the lawyer been in practice? The greater experi-ence, the greater likelihood this lawyer has seen cases like yours, and knows how to handle your case.

2. What type of firm does the lawyer have?

Is he part of a big law firm, or is he a solo practitioner? Just because the lawyer works in a big firm doesn’t necessarily mean it’s better for you. Likewise, just because an attorney is a solo practitioner doesn’t mean he’s not capable of successfully handling your case.

There are many advantages to using a solo practitioner- you get indi-vidual, personalized attention; an attorney who knows everything about your case; an attorney who returns your calls promptly; and someone who doesn’t take on more cases than he can manage.

With a large firm you might have multiple attorneys handling different aspects of your case; different attorneys appearing in Court for conferences; your phone calls may not be returned as quickly as you’d like- but at the same time a large firm might have more resources than a solo practitioner such as paralegals and associates.

Ask your prospective lawyer whether he delegates his work to his junior people, or does he do it all himself? Does he return your calls, or does the junior lawyer call you instead? Does the paralegal do all the paperwork, or does a lawyer do it?

3. Where is the lawyer’s office?

This is important only for people who are solely concerned about convenience. Some lawyers have multiple offices. If you’re concerned about going to someone whose office is in the City, and you live in the Suburbs, keep in mind that most likely, you will not need to physi-cally go to his office more than a few times. He should be readily available by phone or e-mail.

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Traveling to an attorney’s office is still a concern, ask whether the lawyer can travel to your home. Most attorneys will accommodate a client, if they are physically unable to travel. However, if the client is simply reluctant to travel, then there is a very important reason to have the prospective client come to the lawyer’s office:

1.) To see how the lawyer operates, and

2.) So the lawyer can see how the client adjusts to being in an unfamiliar setting. This last part is vitally important to an attorney who evaluates you as a potential witness at trial.

4. Do you e-mail clients?

Do you send regular updates by letter or e-mail? If I have a quick question, can I e-mail you instead of calling you on the phone?

5. “When my case comes up for a deposition (a question and answer session with your lawyer and the lawyers for the people you have sued) will you be there with me, or will I have one of your junior associates?”

This is very important. You’re hiring a lawyer. Some people hire a law firm and don’t care who works on their case. An injured victim should care, because they want to be treated with respect and receive the attention they deserve. In some firms, the lawyer you meet with will not be the one who appears at your deposition with you. In fact, depending on how busy the law firm is, it’s possible that the lawyer you meet with may not even try your case! That’s why you’ve got to ask: “Will you be there at my deposition?”

6. “When my case comes up for trial, will you be there with me, or will I have one of your junior associates?”

Again, this is a very important question. The lawyer you get to know at your first office visit may not be the lawyer who tries your case. You may only get to meet your trial lawyer a few months before your trial starts. I know many people who don’t like that approach to lawyering, and others simply don’t care. As an injured victim looking

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for a lawyer to represent their interests, I can only suggest that you should care.

However, keep in mind that there are law firms in New York, and elsewhere, that have dedicated trial lawyers. Their job is only to try cases. Their other partners or associates handle the other parts of your case. In some other firms, you get one attorney and he (or she) handles your case from start to finish. Find out from your prospec-tive attorney which one you can expect.

7. Ask this question to every attorney you speak to: How much is my case worth?

Why? Because there are some attorneys who will claim, on your very first visit that your case is worth a ton of money- some even say “Millions!” Others are not so cavalier, and take a more cautious approach.

If a lawyer tells you your case is worth Millions, ask him to put that in writing. Why? Because no lawyer can promise or guarantee any outcome to a client. Watch what happens when you ask that lawyer to put his “guarantee” in writing. He’ll quickly backtrack and make some excuse for not putting it in writing. Be careful of an attorney who makes such promises without thoroughly knowing all the facts of your case, and without having reviewed your records.

8. What are your success stories? What’s your record?

It’s important to know how an attorney has done in the past on other types of cases. What results has he achieved recently?Obviously every case is different. But you still need to know whether he’s ever achieved large settlements or verdicts. If the biggest case he ever handled was small claims court, then maybe this attorney isn’t right for your type of case.

9. Does he have a web site? Does he advertise?

Does he have a presence on the internet? Why is this important? You want to know what type of material he has on his web site. Is

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it a basic information card with bland material, or does he provide a reader with important information they need to know to educate them, before, they ever call him or walk into his office.

10. Does the lawyer offer a prospective client free reports to educate them about their options before, they ever call?

Ask if they have free reports about your type of case. Not some canned brochure that anyone can stamp their name on, but a real substantial report that discusses your type of case. Can the reports be obtained directly from the lawyers web site, or by calling his office for a copy?

Knowing this information will make you a better informed consumer. Hiring a lawyer is an important part of learning about your legal rights. Ask lots of questions and trust your instincts about any lawyer you speak to. Good luck.

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2 Attorney Advertising: How to Choose an Injury and Medical Malpractice Lawyer

“Ooh, ooh, pick me,” “No, pick me,” yelled the ad in the phone book. “I needed an accident lawyer to find out what I need to do since I was hit from behind last week. I looked in the yellow pages in Brooklyn, and found over 40 pages of lawyer ads. Who do I pick?”

The truth is, not all lawyers advertise. Those who do are required to list specific areas of law in which they practice. In New York, injury and malpractice lawyers are not allowed to call themselves ‘experts’ in their field of law. Nor can they misrepresent themselves in an advertisement. For example, they cannot stand next to a person with a cast on their leg, in a wheelchair and a pile of cash on the table claiming that since this person recovered all that money, he or she could do the same for you. That’s nothing more than a shameless sales pitch. The reality is that no lawyer can claim to get you “cold hard cash” because every case is different. Some lawyers claim that they can “Settle your case fast!” Sure they can, for a lower amount than your case might be worth.

Don’t you think the insurance companies that deal with law firms like those know they’re looking for a fast settlement? There’s no incentive for the insurance company to offer top dollar because they know that this law firm isn’t going to take the case to trial. They’re settlers!

There are some yellow pages ads that proclaim the lawyers handle everything from criminal to real estate to injury cases to malprac-tice matters. Be weary of a firm that claims they can do everything. In today’s legal climate it’s rare that a general practice firm can do all that extremely well. That’s why there are firms that focus exclu-sively on one or two areas of law, such as medical malpractice and personal injury.

If you call a law firm you’ve found in the yellow pages, ask these important questions: Who will be handling my case day to day?

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When will I meet with the partner? Who will be negotiating my case? Who will be trying my case? How quickly are my phone calls returned? What is your experience with my type of case? How many cases do each of your attorneys handle at one time?

Does the size of the lawyer’s ad mean they’re a better firm than the one with a ½ page ad or smaller ad? No. It only means that the larger ad costs a lot more (The Verizon yellow pages charges lawyers about $6,500-$7,000 per month for a full page ad. In some counties, lawyers take out a double page ad which can cost between $12,000-$15,000 per month!). That’s not a typo. That’s per month. We’ve all been trained to think that just because an ad is larger, that it must somehow correlate to how well that firm does for its clients. Not necessarily true. You must ask lots of questions and you must become an informed consumer before you choose to hire an attorney based upon an ad in the yellow pages.

Ask the attorney you call whether they can recommend another colleague to get another opinion about your case. If they’re reluc-tant to do this, I suggest you look elsewhere. Why should the lawyer be afraid to recommend another good lawyer? In all likelihood the injured client will stay with them, especially when they’ve been so honest and willingly advised the client to get another opinion.

Ask the attorney for references from clients he’s helped. Ask about cases he’s lost, and ask whether he’s ever had a client go to another attorney after he started their case. The lawyer you choose must be able to communicate with you and spend time explaining the legal process and what to expect down the road. I’ve never liked it when I’m handed off to a junior associate to handle my questions and the rookie has to go back to the senior partner with all of my ques-tions. Like many of you, I appreciate personal attention- especially in a case where the injuries are severe and life altering. Having an attorney know your file as well as you do, if not better, is extremely important.

When you call the lawyer’s office for an update on your case, do you really want to be asked “How do you spell your last name?” Or how

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about, “Uh, let me pull your file and see what the other five lawyers did on your case recently.” Or how about, “I’m with another client now, and I’ll call you back,” and you don’t get a return call for days. To me, that’s not professional service. It’s bad enough that you were injured through someone else’s wrongdoing, but you shouldn’t have to suffer the indignity of having your law firm figure out whom you are when you call.

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3 What Exactly Does a Personal Injury and Medical Malpractice Lawyer Do?

A personal injury lawyer helps navigate the murky waters that can trap an unknowing victim into muck and mire.

When a person slips and falls, causing injury, your lawyer needs to find out why you slipped.

Was there a defect on the property that should have been corrected? Was it simply that you didn’t see where you were walking? Was the staircase not up to code so as to make it dangerous? These are the questions your lawyer will need to examine.

Products causing injury

This is known as product liability. Let’s say you opened a bottle of soda and the cap exploded off the bottle and into your eye causing permanent damage. Is the bottling company to blame? Possibly. How about a miter saw that is supposed to have a guard to protect your fingers as you slide the wood into the cutting blade? What about a car that permits you to move the gear into reverse without first putting your foot on the brake? (This is called a gear interlock to prevent kids from playing with the gear lever. It’s happened where they slip the gears into reverse and the car starts to move causing injury).

Evaluation of a product that is commonly used or bought can be very technical. Many times we need to hire engineers to evaluate a product to see whether it was designed properly and was properly placed into the marketplace.

Medical Malpractice

Malpractice is a departure from good and accepted medical care causing injury. As with anyone, doctors are held accountable for their actions, as we all are. In order to confirm evidence of wrongdoing

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we need to have medical experts review your records before being able to start a lawsuit for your injuries. Most cases that I see in my office do not meet the strict criteria for being able to start a case. Of those we accept, some will go to trial and others will be settled before trial.

Malpractice cases are one of the most hotly contested areas of law today. The defense attorneys we often encounter are extremely well educated and trained at defending these lawsuits.

Car accidents

We all know what terrible reputations lawyers get from all those tacky advertisements showing damaged cars and clients in wheel-chairs holding up poster-sized checks with lots of zeros after some number.

But the fact is that there are accidents and very serious injuries that result from these horrible events. Lives are shattered from a moment of carelessness. Just look around at how many people still talk on their cell phone while driving even though it’s against the law!

Most people aren’t interested in these informative newsletters because luckily, a tragedy hasn’t befallen them. That’s ok. We hope that it never does. The purpose of this newsletter is to give my readers an understanding of what we as lawyers do, and how we can help if the need ever arises. You’ll find that I like to inform my readers about their options before they ever need a lawyer, and before they ever step foot into a lawyer’s office. How many other lawyers do you know who do that?

In an accident case, I look to see how the accident happened. Where were you driving? What were the road conditions? Was your car in good mechanical condition? Was someone speeding? Did someone turn where they shouldn’t have been turning? Was horseplay involved? (Think back to when a turkey was thrown from a moving car causing terrible damage to the woman driving behind them).

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While going about our daily lives we shouldn’t have to worry ourselves about getting injured. Common sense should dictate what good conduct is and what is not. Unfortunately, there are many people out there who are simply careless about how they do their daily activi-ties. Haven’t we all seen people reading the newspaper while stuck in traffic- and they’re driving! How about applying makeup on the way to work, and driving at the same time?

Imagine this scenario... A woman is late for work.

She’s in her car and traffic is crawling. She’s putting on lipstick and looking in the rearview mirror to see if it’s on correctly. At the same time her cell phone rings, and while answering it, she decides to light her cigarette. Unfortunately for her, the car lighter drops to her feet and now she’s got her lipstick in one hand, the cell phone in the other, a cigarette dangling in her lips, and she’s supposed to be paying attention to the road.

Can’t you just hear the accident in your head, and visualize the crushing of metal, as her eyes are on the floor looking for the lighter? Believe me, there are plenty of cases like this one that have caused other people injury.

Imagine if people were never careless! There would be no accidents, no need for insurance, and there would be no personal injury lawsuits. Unfortunately, we are not perfect and accidents do happen.

But how then do you determine whether the accident was something that couldn’t be avoided or was the result of lack of attention? We must conduct a thorough and detailed investigation.

Remember, when an injured victim comes to us, they’re telling us what happened to them from their point of view. We have to inves-tigate and make sure that all other points of view (witnesses) can confirm what we’ve been told. When we do that, we build your case and can then support the facts that led to your injury.

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Dog Bites

Did you know that certain types of dogs are more prone to bite someone than others? Let’s look at the pit bull for example. Just because a pit bull bites someone, as opposed to a tiny Chihuahua, does that mean the owner of the dog will be held responsible? The answer depends on many factors.

If the dog has never had any prior vicious tendencies and has never bitten anyone before, how then can his owner be responsible for this biting episode? One could argue that all pit bulls in general, are inherently violent. Not a bad argument to make, but not a totally accurate one either. What if you learned that before biting, the dog was tormented and teased repeatedly by a guest? Would that change things? Sure it would.

Injustice, humiliation and psychological injuries

We can all tell when an injustice happens.

Someone is pulled over because the color of his skin is different from those living in the neighborhood.

Someone is denied entry to a club because their religious beliefs are different than those who run the club.

Someone is denied service at a restaurant because of the way they dress or the accent of their voice. How about a woman who was denied a partnership because she was pregnant? What about the indignity of a high school football player who was sexually abused while away at football training camp with his high school team?

Despite all of our advances today, there is still bigotry, prejudice and hatred in this country. If you’re a victim of injustice or humiliation what can you do about it? There are certain types of lawsuits that allow victims of injustice to seek justice. They’re sometimes called discrimination lawsuits, or violation of civil rights lawsuits. The pain inflicted by injustice can be devastating and have long-term social

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and psychological effects.

Your lawyer will ask about your history, both medical and psycho-logical. You will probably be asked to have specific psychological testing and counseling to confirm and identify some of the problems you are currently experiencing.

I know that some people believe that if an injury can’t be seen that means it’s less meaningful than a horrible disfiguring injury. That’s not always true.

I’ll bet there’s something in everyone’s childhood where they can remember a parent or an older child saying something bad about you. Looking back all those years, you still vividly remember the hurt you experienced that day. That’s injustice. There’s no “physical” injury, but the emotional scar is ever-present.

So, “What does a lawyer do?”

A lawyer is someone to guide you; to help you through your trouble; to explain the law to you and how the law applies to your facts. A lawyer should be advising you of your legal options and what you can do to correct the injustices that have happened to you. That’s what a good lawyer does.

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4 10 Reasons Why You Should Call a Lawyer

1. Become Informed

There’s a commercial for a men’s clothing store in New York that says “An informed consumer is our best customer.” This is true for people who have potential medical malpractice and injury cases. From the moment the phone rings until we’ve finished their case, the most important aspect of my job is to inform you, the client, whether you have the basis to bring a lawsuit, what your chances for obtaining money are, and to give you the best legal advice possible.

Without good legal advice, your ability to make informed choices are limited. That’s why you need as much information as possible, and as soon as possible. You don’t want to be told that the time to bring your lawsuit has lapsed, which leads me to the next topic:

2. Learn What Your Time Limit is to Start a Lawsuit

You must know how much time you have to bring a claim and/or a lawsuit. There are many different time limits in New York, depending on the type of case you have. In a car accident case you generally have three years from the date of the accident in which to start a lawsuit. However, you only have 30 days to file a claim with your insurance company if you want them to pay for your medical bills.

There are many different exceptions to the time limits in New York. For example, if you were treated in a City Hospital such as Coney Island Hospital or Jacobi Hospital and you feel a doctor or nurse treated you improperly that resulted in injury, you’d have only 90 days to file a claim against them. Then you’d have only one year and 90 days from the date of the malpractice within which to start a lawsuit. But Wait! You can’t start your lawsuit until after you’ve filed a claim against the agency that “owns” the hospital. See... it gets complicated.

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That’s why it’s so important to learn about the time limits you have. Your must become fully informed.

If you wait too long to seek legal advice, you might not be able to start a lawsuit because your time has lapsed. Find out now, then make your decision about whether you want to proceed with a lawsuit.

3. Meet with the Attorney to See if You’re Comfortable with Him or Her

Not every attorney will fit every client. It’s like a first date. Some people you’ll feel comfortable with, and others you won’t. You won’t know until you actually meet with the lawyer. Look at the surroundings. Look at how organized the lawyer is. Is the lawyer a professional. Does he or she appear confident in their abilities? Is the lawyer explaining and answering your questions, or is he or she trying to sell you on how wonderful he is? Use your common sense when deciding whether this lawyer is for you.

If you’re unsure, tell the lawyer honestly that you’re not sure whether you’re going to choose him, and need to speak to other attorneys before you make a decision. Being open and honest with your lawyer is extremely important. Most lawyers will understand your reluctance to immediately sign up. Some will pressure you to sign a retainer before you leave the office. Remember, this is your case. You must feel right with whichever lawyer you choose.

4. Evaluate the Law Firm

Does the lawyer have support staff to handle any questions or issues if your lawyer is busy? Does he have partners? Is he a solo practitioner, or is this a large law firm? Is the lawyer you meet with the one who will be with you every step of the way? Or will your case be assigned to different lawyers as it makes its way through the legal system?

If you have questions about the status of your case will the lawyer you meet with call you back, or will you get a call from some para-legal you’ve never met before? When you call the office will you have

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to give them a file number for them to know who you are and what’s going on with your case, or will the attorney have these facts at his fingertips?

Answers to these questions will help you decide if this lawyer and this law firm are the right match for you.

5. Does the Lawyer have Free Information for You Before You Ever Walk in the Door?

Before going to meet the lawyer, can you get information about lawsuits and his experience from any written materials like a brochure or his law firm web site? Look to see what information they provide. Is the lawyer hesitant to talk to you on the phone? Are there any pamphlets or booklets the lawyer has written that he sends to prospective clients to give them information about their type of case?

Remember, becoming informed is the key to understanding your legal rights.

6. Eliminate Surprises–Ask About Fees

Most lawyers who handle medical malpractice and injury cases in New York do not charge any fee to meet with them or to investigate your case. If an attorney accepts your case, they will have you sign a retainer agreement which sets out in detail the terms of the fee arrangement. In injury cases, typically the attorney will receive 1/3 of the net fee (after expenses and disbursements have been re-paid). In a medical malpractice case, the lawyer will get a fee that is much less, and works on a sliding scale- as the client’s share goes up, the lawyer’s fee drops.

7. Ask About Experience

In most medical malpractice cases, a lawyer’s experience is the key to getting not just fair compensation but just compensation. You must ask not only how long the attorney has been in practice, but how long they’ve handled cases like yours, and whether they have handled

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cases similar to yours. Obviously past experience does not guarantee a future result. However, with past similar cases the attorney has the ability to properly advise you about what needs to be done to try and achieve the best result possible.

8. Ask About Previous Cases Similar to Yours

(See #7 above) What if your attorney has never handled a case like yours? Well- you can still stick with this attorney. I’m sure he can learn everything he needs to handle your type of case. But remember this- This is the only time you’ll be able to bring a lawsuit for your injuries. Don’t you think you might be better off with an attorney who has handled these types of cases for years and years? The choice, as always is yours. Make your decision after carefully thinking about the risks and benefits of choosing one lawyer over another.

9. Ask Any Attorney You Meet, Who He Would Use If He Needed a Medical Malpractice Lawyer

If the lawyer you meet with is confident of his or her abilities, they should have no problem recommending another attorney for you to get another opinion. However, if they are hesitant, or refuse to give you another name of an attorney to consult with, I would person-ally question why not? Obviously, they don’t want to lose you as a prospective client. However, I have found that lawyers who are totally up-front with clients and give them the information they ask for, more likely than not, the client will return to their office and ask them to be their lawyer.

10. You Have No Obligation when You call an Attorney for Information in New York

Just because you meet with an attorney, without paying any fee, does not obligate you to sign up with or stay with that attorney. We hear so often in attorney advertising “There’s no obligation!” What this means is that you have a choice. If you like the attorney and are confident of their abilities, great! If you don’t, say “thank you for your time,” and move on to the next attorney. You are under no obligation to stay.

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5 Dead Man’s Family Calls NY 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 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

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take samples 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, inter-feres 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 prop-erly 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 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.

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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 or 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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6 How to Get Compensated for Your Injuries without Hiring a NY Lawyer

1. Know the law.

How do you do that? Go to law school for three years. Then take a rigorous written examination that consists of essays and multiple choice questions over two days. Once you complete that, sit before a “Character & Fitness Committee” to see if you have the moral fiber and characteristics to be a good lawyer. Then take ongoing continuing legal education classes each year to confirm that you are “up-to-date” in your current legal knowledge.

2. Become an expert in personal injury law.

How do you become such an expert? Practice personal injury law for ten to twenty years. You need to find an experienced lawyer who has done this kind of law for twenty to thirty years and learn everything you can from him. Volunteer to work for free if he can’t afford to pay you. Do court appearances for him and other attorneys in order to pay your rent. Learn to do depositions, which are question and answer sessions where you try to learn everything you can about the people your clients have sued. Help the experienced lawyer with his trials. Do legal research, interview witnesses, sit in on jury selec-tion, carry his bags and listen in as he prepares his client for trial. Importantly, listen in as he negotiates with claims examiners and other lawyers. Take those best traits and adopt them as your own. Use your own personality to bring out those good lawyerly traits. Learn what the values are for similar injuries in similar venues. Read legal publications and contact the leaders in that field.

3. Learn how to be your own boss.

Don’t rely on anyone else. Learn how to do legal research and see what the legal issues are in your accident case. Speak to law school professors for some free legal advice—if they’re willing to give you

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their time. Learn how to handle trials involving personal injury cases. Learn how to say “No” to a claims adjuster if the offer to settle is less than what you feel the case is worth.

What’s the moral of the story?

You can certainly handle your injury claim on your own. You can also give a sworn statement to the insurance adjuster and give up any rights you have to the insurance company. You can also agree to some meager settlement offer that the insurance company throws at you to make your claim go away. You don’t need to hire an attorney to represent you to do that. You can destroy your rights and your case all by yourself. You can walk away from that situation feeling confident that you’ve saved a ton of money since you didn’t have to give some lawyer 1/3 of your compensation.

On the other hand, think about what an experienced New York personal injury attorney does for a living. He does everything he can to achieve the best result for you. His fee is tied directly to how well he does for you. This is called a “contingency fee”. That means his fee is based only on what he gets for you. It’s in his best interests to get the most money possible for you. The more he is able to obtain for you, the more money he receives as a fee. The less he gets for you, the less the lawyer gets. In the State of New York, if you get nothing, your lawyer gets nothing.

So, do you need an attorney to handle your accident claim? No. But before leaping to the first or second offer that the insurance company offers, think about whether an experienced New York injury lawyer could get you substantially more money and justify his fee with that extra money he might be able to obtain for you.

As a final thought... if your loved one needs surgery, are you going to go to the library and learn all about the anatomy and read all the books on how to perform surgery, or are you going to go to an expe-rienced surgeon who has done this operation thousands of times?

The choice in law, as always, is up to you. Choose wisely.

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7 Secrets of a NY Medical Malpractice Lawyer

1. Your NY Medical Malpractice attorney is not a doctor (in most cases anyway).

Many potential clients ask their lawyer for medical advice about what treatments they should receive. There are some lawyers who actually advice their potential clients about the treatment they should receive. The better legal practice is to advise them to speak with their treating doctors to become fully informed about their medical options. Only by being totally informed can the client make an intelligent decision about how best to treat their ongoing medical problem. A lawyer is there to guide you through the legal minefield, and can certainly explain if your case will be affected if you chose one medical option over another.

2. Your lawsuit is not guaranteed to get you money.

Some potential clients think that if they’ve suffered an injury, it auto-matically entitles them to some type of compensation. Unfortunately, that is not true in the State of New York. This is not worker’s compen-sation, or some other form of guaranteed compensation. There are many hurdles that a potential client must jump over in order to just get into the Court house door. Once inside, there are still many obstacles that stand between full and just compensation, and the Court house exit.

Defense attorneys frequently say during jury selection “Just because a person has brought a lawsuit, doesn’t mean they automatically have a valid case.” As much as I don’t like to agree with my adver-saries during jury selection, I must admit that this phrase is true. It is our obligation and burden to prove your case, the way the Court explains, to the satisfaction of the jury. If we fail to meet that burden, the jury is directed to make no award, regardless of what injuries you suffered.

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3. Your lawyer is not your bank.

What do I mean? Some clients think that simply because an attorney has accepted their case, they will at some point receive money for their injuries. While this is certainly hopeful, clients sometimes think that the lawyer is also a bank in which to borrow money against their expected lawsuit recovery. The better practice is to let the client know that the lawyer cannot advance the client money, as there is never a guarantee of winning an award or settlement.

While there are some financial companies that take a risk of lending money to a client against the future proceeds of a lawsuit, those companies charge outrageous interest rates. To give you an example, one client of mine recently received a quote from a financial services company that provides this service. The client wanted to borrow $20,000 to pay for medical expenses. The interest rate was 36%.

After three years, the client would owe this company over $30,000 just for the benefit of borrowing $20,000. This, in my opinion, was a travesty and I strongly urged the client not to go forward with that plan.

4. Lawyers who say they look for a quick settlement probably don’t go to trial often.

There are some lawyers who proudly advertise that they can achieve “quick settlements” on many cases. This suggests that they don’t try many cases, and in all likelihood the insurance companies that deal with these attorneys realize this and minimize their settlement offers.

A medical malpractice or personal injury lawyer who is afraid to take a case to trial loses the leverage that is often needed to compel an insurance company to increase their settlement offer. Without the risk of going to trial and getting an award for more than an insur-ance company is willing to pay, the insurance company looks at the situation and may likely say “Offer ‘x’ dollars, since we know he’s not going to go to trial.”

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On the other hand, where a lawyer has no hesitation to go to trial, with a case that he believes in strongly, and has medical experts to support their position, they are in a much better bargaining position than a similar attorney who merely looks to settle cases before ever getting to trial.

Hopefully with these tips you have become more informed about medical malpractice & personal injury lawyers who practice in the State of New York.

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8 5 Tips to Help You Decide Whether Your New York Lawyer is Right for You

These educational nuggets are designed to help you understand the process of how law firms in New York work. Law firms range is their size from small to large. The point is, if you have a case with a lawyer, you expect and hope that the lawyer will be familiar with you and the details of your case. In a large firm, it’s understandable if more than one attorney works on your case. However, you should certainly expect that whoever is working on your case knows the details of your case, and the status of your matter any time you call.

1. You call your lawyer’s office and the secretary asks you to spell your name.

While this is not a significant problem if you are a client in a large law firm, it is a problem if your attorney is a solo practitioner and his only secretary doesn’t know who you are.

2. Your lawyer gets on the phone and doesn’t remember you or the details of your case.

If this happens to you, you should be worried. Ask the lawyer why he doesn’t remember you or your case. Is he so overwhelmed by his case load that your matter simply isn’t on his radar? If so, then maybe he is not the right lawyer for your case. It’s always nice to be remem-bered, and even nicer to know that your lawyer has all the facts of your case at his fingertips. However, it’s unrealistic to expect every attorney to be like that. Each lawyer and each firm have different case loads and different abilities. Just beware the attorney who has overextended himself.

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3. Your lawyer or his assistant doesn’t know the last thing that happened on your case.

When was the last time you heard from your lawyer, without you having to call and inquire about the status of your case? Was it days? Weeks? Months? Why do you have to keep calling to find out what’s going on in your case? While it’s understandable that everyone gets busy, you, as a client, should expect some form of communication from your lawyer on some regular basis. Whether that means every few months, every few weeks or every few days- this will vary with each attorney.

If you need more attention and more frequent updates on your case, do not hesitate to tell your lawyer that. And, when you call the office to find out what happened on your case last, you don’t want to hear in the background, with someone putting a hand over the telephone, “Hey Joe... what happened on the Jones case? Did you go on that conference or was it someone else?” You want to feel confident that your lawyer is on top of your case and that it’s proceeding smoothly through the Court system.

4. You get the sense that your lawyer is “winging it” without really knowing the facts of your case.

Have you ever been in a meeting where you could tell that the person talking didn’t know what they were talking about? If that’s the sense you get after meeting with your attorney, then you should think hard about whether this lawyer is the right one for you. Are they giving you answers “off the cuff ” without really knowing the facts, or is the lawyer distracted with other matters?

5. Your lawyer gives you false hope that your case is going great, and then lands a bomb telling you your case is terrible.

Beware of the lawyer who tells you that you’ve got a great case, and then all of a sudden tells you that your case is in the tank. Why? What happened to change his opinion? Were some facts or records missing initially? Was the initial legal opinion incomplete? How far

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into the litigation did your case go before your lawyer realized you don’t have a good case?

Conclusion

With these tips, you should be a better, more informed consumer of legal services in the State of New York. As always, if you have follow-up questions, please call an experienced medical malpractice or personal injury lawyer immediately.

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9 Top 10 Reasons Why You Won’t Find a New York Injury Lawyer in the Yellow Pages

Open any yellow pages book in New York under the heading “lawyer” and you’ll be immediately bombarded with every type of injury and claim you could ever make. Full page ads, double page ads, blazing color, unsightly photos, screaming bold headlines. How does an injured victim choose a lawyer among all this clutter?

Here’s a sampling of statements found in current yellow pages ads in the Greater New York Metropolitan area:

“Tough, aggressive, experienced.” What does this mean? That you’re a pit bull who knows how to bark and bite?

“Serious trial lawyers for the seriously injured.” What does this mean? That if you’re not seriously injured you need a trial lawyer who’s not serious?

“Over 70 years combined experience.” What this means is that each attorney has limited experience, but if you pool every-body’s experience together, we can make is seem like we’ve been around for hundreds of years.

“Special consideration for senior citizens.” This is an obvious play for cases involving elderly people. Just what special consider-ation would this firm give to senior citizens that it doesn’t give to all its clients?

“Experienced in obtaining large cash awards quickly.” Does this mean that this firm never takes cases to trial? The only large awards that are resolved quickly are clear cut on liability, causation and damages. Do I want an attorney who is experi-enced in obtaining large cash awards slowly? What’s the rush? If I rush, isn’t there a good chance that I’ll get less money for my injuries than I deserve?

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“You made a mistake once, now choose the right lawyer.” Guess what type of law this firm practices? Divorce.

“Get the money you deserve!” Okay, sign me up and show me the money. What if I deserve more than you can get for me?

“Call the law firm that never sleeps.” That’s an interesting way to distinguish oneself. Being up 24 hours a day, bleary eyed, and tired? If you never sleep, how can you adequately repre-sent injured victims?

Photo of lawyer holding briefcase in one hand, large card-board check in other, smiling. Client, on crutches, in a leg cast, looking with total glee at the cardboard check, with her hands open wide as if to exclaim “Wow!” Give me a break. Believe it or not, this violates the disciplinary rules in the State of New York. It’s a no-no.

How about an ad without any name, or address, just an 800 phone number? No good. Violates the rules. Would you call a “no-name” law firm?

All these ads make you feel rushed to get your cash. Sort of makes you feel “lucky” you got hurt, doesn’t it? So, with all of these great lawyer ads, how does a consumer who’s been injured pick the right one? Do you have to call each and every one? That would be extremely time consuming and not very effective.

Do you trust the firm because they show pictures of crashed cars and an ambulance nearby? How about the photo of a worker falling in mid-air from a scaffold? Can you relate to him? Maybe you can relate to the photo of the elderly woman slipping on ice and another photo of her lying on a stretcher in the hospital? Do these illustrations and photos make you all warm and fuzzy about the law firm you’re about to call? I personally don’t think so.

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Here’s the top 10 reasons you won’t find a New York Injury Lawyer from an ad in the yellow pages

1. You can’t tell one ad apart from the other.

2. The lawyer ads all say the same thing. “Call me,” “Personal attention,” “Large Cash Awards,” “Lots of experience,” “Pick me, ooh, pick me!”

3. Many ads scream at you, without telling you how they can help.

4. Do you call a firm just because they have a larger ad than someone 20 pages into the book?

5. Every ad says that I can talk to a lawyer for free, but what are the fees to handle my case? None of the ads talk about that.

6. Who pays the legal expenses if I don’t win my case? Many ads don’t tell you.

7. How do I know if one attorney is any better than the other? I can’t tell just from an ad.

8. Aren’t these ads just trying to sell me their services? “I don’t want a salesman, I want a lawyer who knows how to guide me through the legal system.”

9. I don’t want to go through 40 pages worth of yellow pages ads- I need help now. Maybe I’ll go online instead.

10. Do you really want to pick a lawyer they way you choose a plumber?

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1010 Facts Your NY Personal Injury and Medical Malpractice Attorney

May Not Tell You

1. Your lawsuit is not guaranteed to win or get you money. Even with a good experienced attorney, you may still lose.

a. This is true whether you have a great case, or even a bad case.

b. No one can predict the outcome of your case, even if you have all of your “ducks lined up”.

c. An experienced attorney is a guide and your advocate. He will do the best he can to achieve victory for you. However, not every case is worthy of winning, and not every case is successful. Even an attorney with an impressive list of wins to his credit can tell you of cases that he has lost. Unfortunately, that’s the risk that all parties take when a case goes to trial.

2. The true value of your case is unknown until every detail of your case has been evaluated by experts.

a. At the beginning of the case, your attorney must obtain all of your medical records.

b. He must evaluate liability in your case.

c. He must review all medical and liability.

d. He then must have his expert(s) evaluate your case, from top to bottom.

e. He must do legal research to see what similar cases have settled for and what verdicts have been rendered in similar cases.

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f. He needs to do a search of appellate cases to see how the appeals courts have addressed these types of injuries.

g. He needs to know what economic losses you have suffered and what your doctors believe you will need for your future years.

3. You (the client) are obligated to pay me back for my litigation expenses, even if you lose your case.

a. This is true. However, most lawyers in New York who handle medical malpractice and personal injury do not ask the client to be repaid for all of their litigation expenses if the case is lost.

b. Can you imagine the indignity to a client after losing a trial, to be told, “By the way, you now owe me $25,000 for my expenses?”

4. If you have health insurance, and health insurance paid for your medical bills, in all likelihood, you will be required to reimburse your health insurance company most of those bills… from YOUR share of the settlement, not the attorney’s share.

a. The reason is simple- Since you were the one who benefited from your health insurance company paying your bills (of course you paid those hefty premiums for this benefit) any money you recover, is repaid directly from your share.

b. Your share- that means that you don’t get your money until your insurance company gets their share first. Then and only then will you receive your settlement check.

5. If you bring a lawsuit on behalf of your child, any money that is awarded to your child cannot be touched until he or she turns 18 years of age.

a. This is to protect your child’s money, plain and simple.

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b. All too often, parents, most of whom have good intentions and some who do not, have tried to take hold of their chil-dren’s money to use for their own purposes and debts. The Courts of New York refuse to make any exception to this rule.

c. Years ago, lawyers were only permitted to place this money into Savings Banks, where the money laid dormant earning minimal interest until the child turned 18 and it was withdrawn.

d. Nowadays there are usually better investment vehicles that will preserve the child’s capital, and at the same time generate better investment returns than typically found in a savings account.

6. If your lawyer screws up your case or makes a mistake, he is obligated to disclose the mistake to you and advise you to either file a claim against his insurance company, or advise you to seek counsel with another attorney.

a. The reason this disclosure is advocated is that if a lawyer screws up, the client will usually not know of the problem until much later. By that time, it may be too late to file a claim against the attorney.

b. The attorney is not supposed to gain or shield himself from such legal wrongdoing.

c. If you make a mistake, own up to it. Tell the client about it. Advise them of their rights at that point.

7. All lawyers in New York are required to take continuing legal education classes to keep up to date on legal changes.

a. It makes sense. You don’t want to have a lawyer who’s “out of touch” with what the law is, you want someone who is current on the law, and how it applies to your case.

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b. Generally, a lawyer is required to take 24 credits of classes over a two year period.

8. “Let’s sue everyone we can think of, then we’ll figure out who’s really responsible later.”

a. If this is your attorney telling you this, I’d think twice about his or her ability and ethical obligations.

b. If a lawsuit is started against someone without having a valid basis to do so, this could be considered frivolous litigation, and might subject the attorney and client to sanctions and fines. Make sure you know who you’re suing and why.

9. If you lie about the facts of your case, or about the extent of your injuries, I am out of here.

a. If I find out that you have lied about material items concerning liability or damages, I will be first on line in Court asking to be removed from your case.

b. You must tell the truth about what happened to you, and how your injuries have disabled you.

10. Even though I tell you I pay all of the litigation expenses, there may come a time when I might ask you to pay for them, otherwise I will not continue on your case.

a. The lawyer says he pays all expenses on his dime.

b. At the end of the case, when and if money is obtained for you, the lawyer is reimbursed for his expenses.

c. In a few rare instances I have seen an attorney ask the client to directly pay for their experts to come into trial, since new information indicates that the chances of winning the case are slim to none. In those cases, the attorney wanted to cut his losses and told the client, if you don’t pay for the

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experts yourselves, “I’m asking the Court to release me as your attorney.”

d. The bottom line- ask your lawyer whether this might ever happen.

Comment: I hope this article has opened your eyes to certain facts that need to be addressed with any New York attorney you choose to handle your injury case. Remember, the more information you have, the better choices you’ll make. If you have any questions, please feel free to call Gerry (at no obligation or expense to you) at 516-487-8207.

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11 4 Things Your NY Injury Lawyer Looks for When You Show Up in His Office

When you need to find an injury lawyer, you need to ask lots of ques-tions. You might meet with more than one attorney before you feel comfortable with your choice of lawyer.

When you arrive in his (or her) office, you look around, look at the diplomas on the wall, look at how the office is run, and look at the furnishings. What does this tell you? Does a messy office reveal a lawyer who can handle your case? Does a clean office mean your lawyer has no other clients? You don’t know from the looks of it. Use your gut instinct to tell yourself whether you can put your trust and your case in his or her hands.

At the same time you are deciding whether this lawyer is the right one for you, the lawyer is also looking at you to see if you are the right client for him. Here’s what a lawyer, practicing in New York will look for in a client.

1. Honesty.

The client must be straightforward and honest about what happened to them. They must let the attorney decide what facts and informa-tion are important. We don’t want a client who is selective about what they say. We also need to know a client’s past history; were there any skeletons in the closet? Any convictions? Any prior lawsuits? We need to know in order to better help you.

2. Presentation.

How does the client present themselves when they talk to you? Are they quiet? Are they loud? Are they well dressed? Do they look at you when they respond? Are they comfortable telling what happened?

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This is very important, because your lawyer is looking to see what type of witness you will make if your case has merit and ultimately goes to trial.

3. A Desire To Seek Help- Not Vengeance

There are some clients who come into a lawyer’s office so outraged that they were harmed by someone else that all they want is revenge. That’s a normal, healthy feeling. There are other clients who come to us asking for help because they can’t pay their medical bills or their mortgage because they can’t work from their injuries.

A client who seeks revenge is volatile and unpredictable on the witness stand. That doesn’t mean they don’t have a valid case. It simply means that it’s going to be tougher to help this type of client, because no matter what the lawyer does, it probably will never be enough.

A client who genuinely seeks help and compensation to right a wrong is the perfect type of client a lawyer seeks.

4. A Desire To Get Better, and Improve Themselves.

There are some clients who want to “milk the system”. They’re waiting for their payday and will simply sit home and wait until their settle-ment comes. For those folks, they live for their lawsuit.

For many others, the lawsuit is a means of support to pay their expenses, to be able to afford surgery to correct their problem, and as compensation for their suffering. The client who is doing everything possible to get their life back to normal, is the ideal type of client. Some people want to return to work, even if they’re in pain. Others are content to stay at home and watch TV while recuperating.

As with all types of cases, each one is different, and each case has its ups and downs. Next time you’re deciding upon what lawyer to use, keep in mind that your lawyer is deciding whether he’ll choose you too.

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12 Why You Shouldn’t Rely on a Lawyer Who Tells You Your Case is Worth Millions

Q: “I went to two other lawyers before coming to you. Each of them told me my case was worth millions. Why aren’t you telling me the same thing?”

A: Simple. What those lawyers did was tell you something they could never guarantee.

There is no way for them to know how much money they could obtain for you, especially before any case is started on your behalf. Even if I were to give you a number that I believe you are entitled to, it would be absolutely wrong. I could give you a wildly outrageous number or a very small number. Both would be wrong.

At the beginning, there is so much information to obtain about your injuries, your medical records and how your injuries have affected you that it is impossible to tell you what your case is really worth at the outset.

It’s true that there are similar cases that we may know the value of, but remember, each case is different, and each case has different facts that can make it difficult to compare with yours.

The job of a good lawyer is to gather all of your information, and then formulate the chances and likelihood of success of your case. A lawyer who does that stands a much better chance of explaining to a client the approximate value of their case.

I’ll let you in on a little secret. I suspect that those other attorneys who told you your case was worth millions did so primarily to have you sign up with them as opposed to going to another attorney.

No matter what any lawyer says, it is impossible to guarantee such a result. If you don’t believe me, just ask the lawyer to put that promise

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in writing. See how quickly they backtrack when you ask them to do that!

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13 5 Deadly Sins that Could Wreck Your Injury Claim

Here are what I consider to be the Five Deadly Sins that can wreck your personal injury claim. These sins are based upon my experience and discussions with many judges and jurors.

1. The Client is Referred by the Lawyer to a Doctor

Local judges call this “service” the kiss of death to a claim. The problem is that jurors are highly suspicious of lawyers and doctors who have a referral relationship. While the client may not know how many of that lawyer’s clients have been referred in the last 12 months to a particular doctor, you can bet that the insurance company knows it or will find out about it. How credible do you think that doctor’s testimony will be when the jury finds out that he treated 50 patients from the same lawyer last year? Are there exceptions to this rule? Yes, there are. You may have a very special need for a doctor with a special expertise. It is perfectly legitimate for the attorney to make a suggestion or recommendation. If every client though, is getting referred to the same chiropractor or the same orthopedist, then that is a huge problem. (So beware of the attorney who has a stack of doctor/chiropractor cards in his office. You need to ask the right questions and fully understand the business relationship, if any, between that attorney and the doctor.)

2. Hiding Past Accidents From Your Lawyer

Once you begin a case, the other side will be interested in knowing how many past accidents you have been in. The reality is that they probably already know the answer or have easy access to that infor-mation. All insurance companies subscribe to insurance databases and often the only reason they ask you this question is to test your credibility. If you have been in other accidents, your lawyer can investigate this and make a determination as to whether this is a valid problem in your case or not. If you do not tell your lawyer,

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however and you misrepresent your accident history to this insur-ance company, then it is almost guaranteed that you will lose your case.

3. Hiding Other Injuries

It goes without saying that you should be up-front and honest with your attorney about any injuries that occurred before or after this accident. Again, if you saw a doctor or other health care provider, then there is a record in existence that the insurance company will find. Your lawyer can deal with this if he knows about it. If you lie about it, and the insurance company finds out, then your case is over.

4. Not Having Accurate Tax Returns

In most cases, a claimant will have lost income. You will only be able to claim that lost income if your past tax returns are pristine. Again, being honest with your attorney is the only way to be, because he or she can deal with the problem if they know about it.

5. Misrepresenting Your Activity Level

Insurance companies routinely hire private investigators to conduct videotape surveillance. If you claim that you cannot run, climb or stoop, and you get caught on videotape, you can forget about your claim. There is no explanation (other than “You got my brother, not me!”) that can overcome the eye of the camera.

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14 Righting a Wrong: NY Medical Malpractice Lawyer Explains

Have you ever felt that you were wronged? Maybe you noticed it when you went to the store and the cashier didn’t give you the right change. Maybe you went to a restaurant, and the waiter failed to bring you what you actually ordered. How about when you went to buy an expensive appliance, and before you had a chance to ask all your ques-tions, the salesman was already ringing up your sale. Here’s a better one: You order an item online, and what you get delivered is totally different than what you actually ordered. You then spend the next hour on the telephone arguing with some faceless clerk, explaining yourself, wasting your time, trying to right someone else’s wrong.

How about a drunk driver, driving on the wrong side of a highway, recklessly driving home after a night of drinking and partying? Can’t you just see the crash about to happen? Don’t we read, all too often about tragedies like these? What about a doctor that operates on the wrong side of a patient’s brain? Or a hospital that fails to recog-nize a cardiac arrest, resulting in massive heart damage? How about the driver that blows through a stop sign and destroys the lives of a family on their way home from a holiday party?

How do we right the wrong that others have committed? Unfortunately, we cannot turn back the hands of time. “All the kings men, all the kings horses, couldn’t put Humpty Dumpty back together again.” I know reciting Humpty Dumpty sounds corny, but it’s true. “OK” you say, so what do we as a society do to right a wrong?

The only thing the law in New York allows a person who has been wronged is to obtain compensation. In my last newsletter, I talked about compensation being a debt that must be repaid to the injured victim. The wrongdoer has taken something that should never have been taken. A life; the freedom to be free of pain; the ability to do daily activities without disability. Repaying the victim with compen-sation is what is expected and demanded.

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What about those skeptics who believe that there are frivolous lawsuits? While I would like to tell you that there are no frivolous cases, I would be remiss to do so. Unfortunately, there are a small percentage of cases in the court system that simply do not have merit. There, I’ve said it. However, the vast majority of cases, especially those brought by experienced medical malpractice and personal injury lawyers in New York do have merit. The reality is that our judicial system is designed to allow someone who has been wronged to “right that wrong” in court. Our civil liberties, our constitution, and our democratic belief that we are free to choose how to live our lives is what makes New York, and in fact the United States, the best place to live in the world.

Compare what we have to countries in Asia, the Middle East and other Third World countries. How about countries with dictators? It wasn’t that long ago that Russia and East Germany restricted the lives of every citizen in those countries. Do you think citizens of North Korea, Afghanistan or even Iran have the type of freedoms we do?

The purpose of this article is not to preach about how great our State or Country is. Rather, it’s designed to show that our system of justice, our democratic beliefs and our sense of doing the right thing requires that wrongdoers fix the wrong they’ve committed. The shattered lives, the broken bones, the disabled victims demand compensation.

I have to share an observation I made the other day. (Just the other day...) I was reading a magazine and it had an ad. It was a full page ad. A photograph took up half the page. In the photograph was a young boy, maybe 10 or 11 years old. The boy was in a wheelchair. The boy’s arms and legs were severely contracted leading to the conclu-sion that the boy suffered some type of spastic condition. Looking at the boy’s face he appeared to have a blank look that simply stared into space. His mouth was twisted, and his body tilted to the side. His hair was beautifully combed.

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The title of the ad said simply: “This is what the winner of a multi-million dollar verdict looks like.” The ad explained that this young boy was a passenger in his parent’s car when it was hit by a truck that went through a stop sign. The young boy was on his way to school that morning. As a result of that accident, that young child will never walk, never talk normally, never play sports, never know the kiss of a girl, never complete school, never be able to get a job, never learn the joys of exercise, never have friends, never have privacy to go to the bathroom, never know life’s treasures- both big and small.

That young boy will know his caregivers; the three nurses that must attend to him 24 hours per day, seven days per week. He’ll get to know his wheelchair- he’ll be spending the rest of his waking life in it. He’ll get to know his doctors really well, as he’ll be a frequent visitor to their offices. If he’s really lucky, he’ll only have to go to the hospital for really bad infections and wound control. If he’s unlucky, he’s going to need half a dozen surgeries to fix the muscles and bones in his legs and pelvis.

So, how was his “wrong” righted? By awarding his family money to pay for his medical expenses. Money to pay for his caregivers. Money to pay to modify his house to accommodate a wheelchair. Money to pay for his health insurance premiums. Money for a specially modi-fied van for his parents to drive him to the doctors, and around town. Money for physical rehabilitation. Money for a new wheelchair every five years.

Did you know that paralyzed people in wheelchairs get sores from sitting in the same place all the time? Those sores get bigger and bigger and tend to get infected often. The problem is that a normal person would feel the irritation, the rubbing and the pain from the sore. In a paralyzed victim, that person feels nothing and is unaware of any problem- usually until it’s very severe.

Just looking at the photo in the ad, knowing what happened to the young boy, created a strong sense of injustice. That injustice can never be fixed. No amount of money will ever turn that destroyed and broken child into the vibrant, happy-go-lucky kid he used to be.

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I’ll bet if you ask his parents which they would rather have, millions of dollars, or a healthy young boy, what do you think the answer would be?

Injustice- righting a wrong. It’s what we have to do.

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15 You Walked into the Hospital but Came Out Paralyzed

“You’re in good hands,” says the nurse in the office. “Nothing to worry about,” says your internist who clears you for surgery. “It’s a routine procedure,” says the doctor who is going to operate on you. “Why then is my husband paralyzed after this surgery?” asks a frantic wife to the surgeon.

The answers don’t really matter since all you care about is getting your husband better to walk out of the hospital again. He went in relatively healthy, and now he’s in a wheelchair and can’t walk, most likely for the rest of his life! “What happened?” you scream in your head.

Feelings of anger, frustration and a lack of communication with the doctors and nurses create a big question about whether your spouse received appropriate medical and surgical care. Many doctors, nurses and hospital staff are often afraid to admit their mistakes for fear of being sued. What they don’t realize, is that by their refusal to acknowledge their errors, this creates the push to sue to find out exactly what happened and why.

There have been many studies showing that if doctors, nurses and hospital staff spoke openly to patients and their families many of them would understand and decide not to sue. In fact, many Veterans Administration hospitals have adopted an “I’m Sorry” policy that compels the doctors and nurses to admit when they’ve made a mistake, take responsibility for their actions, and then focus on ways to improve the injury and get the person healthy again. Not many New York hospitals or medical malpractice insur-ance companies in New York have adopted this school of thought. That leaves the family to sue to get answers to pressing questions: Why did my husband become paralyzed when this was a “simple procedure”?

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This strong sense of anger and lack of information create a sense of hopelessness, fear and lack of control. That’s when most people start asking friends and relatives for advice on what to do next.

What can you do? Only by conducting a thorough investigation and having all of your spouse’s medical records evaluated by medical experts can you determine what exactly went wrong that caused these terrible injuries.

There are many lawyers “out there” who advertise in all different places... yellow pages, billboards, radio, TV, newspapers, online... how do you know which one is right for you? Your friend used a great lawyer for her car accident case, but you don’t think he handles malpractice cases. Your neighbor is a real estate lawyer... he’s not going to be able to handle this. You’d love to call a Courthouse and ask someone who works there, who they think the best malpractice lawyer is... but how do I find the right person to ask? You could go online to look for a lawyer near you, but how do you distinguish one lawyer’s web site from another?

All of your questions are valid. There are so many attorneys, all with different experience and qualifications. That’s why you need to look for an attorney that provides you with information about lawyers and lawsuits before you ever pick up the phone and call, and before you ever walk into an attorney’s office to talk about your case.

When searching for your lawyer, look at their experience, their results, their knowledge of malpractice cases like yours, and what information they offer. Have they written or published anything in their field of law? Have they created instructional videos to help you, the consumer, decide which is the best attorney for your case? Look critically at the information they provide, then make your informed choice.

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16 Why Won’t You Take My Small Medical Malpractice Case?

1. Brenda D’Client comes into my office with many problems.

“My doctor did my plastic surgery wrong. I can see my scar. See, look close, it’s a line right below my belly. He promised me I wouldn’t have any scars.”

“I was given the wrong medication by the pharmacy and I have bruising all over my body.”

“I had a terrible reaction to the anesthesia and now have to get follow-up treatment including a blood patch, and medications.”

2. Each of these scenarios represent someone who strongly believes that they have been wronged by a doctor, pharmacy or hospital.

Unfortunately for each of them, they don’t have all of the required elements needed to bring a successful malpractice case in New York.

In a malpractice action, I have to prove not only that there was wrongdoing, but the wrongdoing has to have caused injury, and the injury has to have been significant and/or permanent. If any one of those aspects are missing, there’s no case. Oh yes, all of those three elements must be confirmed by a medical expert, before I can go ahead and start a lawsuit for you in the State of New York.

3. So, why are these cases too small for most New York Medical Malpractice attorneys?

In the first scenario, Brenda’s injuries are minimal. It becomes finan-cially impossible to bring a lawsuit for someone where the injuries are so small as to be virtually unnoticeable to the average person.

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In the second scenario, Brenda appears to have been injured by the pharmacy’s dispensing the wrong medicine. But in this case, the damages are limited, and Brenda is expected to make a full recovery shortly. Again, it becomes financially impossible to bring a malpractice/negligence lawsuit where the injuries are temporary (such as bruising).

In the third scenario, Brenda experienced a well-known side effect of anesthesia. For her, there’s no malpractice here. There was no way to prevent this condition from occurring, and no alternatives to the procedure she had. Unfortunately, she had a bad outcome to a procedure, without any evidence of wrongdoing. Again, it becomes impossible to accept such a case to prosecute.

Conclusion

Since a New York medical malpractice attorney takes a case on contingency (this means that he only gets paid if he is successful in obtaining money for you), he must lay out a considerable amount of money to prosecute your case.

Not only does he have to make sure you have a valid and meritorious case, but he has to determine whether your injuries rise to the level where you will receive sufficient money after all of his expenses and legal fees are taken out. What good does it do you, if most of the money is used for expenses and legal fees and you are left with a small amount of money?

It is for this reason that most New York Medical Malpractice lawyers can only accept cases that have a certain value.

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17 Why Shouldn’t I Let My Family Lawyer Handle My NY Medical Malpractice Case?

Have you ever wondered why there’s so many lawyer advertisements?

It’s because lawyers think that injured victims don’t know how to choose an attorney on their own. Guess what? They’re right! If you’ve got a billboard in front of you after you’ve been injured that says something like “Is your car totaled? Did you break your bones? Call our law firm...” Isn’t this a call to action? Sure it is. But is this the best firm for you? Let’s see.

Your family lawyer is great to have general legal issues taken care of; preparing your will, maybe some business matters, parking tickets, small claims court, or maybe even some personal injury. When you’ve been injured by a doctor or a hospital, your family lawyer is probably the first one you’re going to turn to for advice.

But, is he the right person for the job? Maybe, maybe not. Medical negligence, or medical malpractice is a very specialized area of law. Extensive knowledge of medicine, while not required, is often helpful in prosecuting a malpractice case. The defense lawyers who repre-sent the doctors and hospitals are usually a sophisticated group of trial lawyers. You want your attorney to be familiar with the defense attorneys, and you want your attorney to have experience handling, prosecuting and trying malpractice cases.

It’ll do you no good if the biggest case your family lawyer has had involved a minor injury or a “soft-tissue” case. Ask your family lawyer if he handles malpractice cases regularly. Having a few personal injury cases, does not make him an expert trial attorney in a malpractice case.

Nor should you let your family lawyer put your case into suit to try and “squeeze” a few dollars out of the malpractice insurance

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company- for a quick settlement. Why? Because it doesn’t work with malpractice claims. They’ll quickly realize that your lawyer doesn’t have the ability to take your case to trial, and your case will suffer because of it.

A law firm that has taken cases to verdict and is not afraid to try a case stands a better chance of getting a good result, than a lawyer just looking for a quick settlement.

Just remember- your family lawyer may be a great lawyer- but think long and hard whether you want him (or her) to handle your malpractice case. Ask lots of questions, and choose wisely.

Section 2

Do You Have a Valid Case?

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18 5 Reasons Why Your Malpractice Case Wont Be Accepted by a New York Malpractice Lawyer

1. We can’t prove the doctor did something wrong.

What do I mean? In order to prove a malpractice case in New York, your lawyer must prove that your doctor or hospital departed from good medical care. Well, how do you prove that? By having a medical expert review your records and determine that there were departures from good care.

2. We can’t prove that the wrongdoing caused injury.

In New York, we must show not only that there was wrongdoing (departures from good care) but also that the wrongdoing caused injury. Again, this must be proven by a medical expert who has reviewed all of your medical records. If this element is missing, we cannot successfully prove your case.

3. We can’t prove that you suffered significant and permanent injury as a result of wrongdoing by a doctor or hospital.

What constitutes significant and permanent injury? An injury that disables you from doing your daily activities. Something that is permanent and is expected to last for a long time, like a scar. A fracture is considered significant. There are many other significant injuries and obviously injuries affect different people different ways. Your lawyer needs to see how your injuries have affected you and what the future holds for you.

4. You have lied about important facts in your case or your past.

If you lie to your attorney, and he finds out about it, in all likelihood, he will not accept your case. Honesty is the utmost of importance. If you feel you have certain information you don’t want to disclose to him that’s one thing. But to actively lie about past lawsuits or events

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that happened is a big no-no. Your attorney is obligated to keep your information confidential. Hold him to that obligation.

5. You insist on running the show and tying the attorneys hands by insisting what he can and cannot do.

This is the “kiss of death” for a case. Where the client believes they know more than the attorney and knows best how to develop strategy in their case. In a lawsuit, your attorney is your legal advisor. He provides you with the best legal options available to you, and together you should be able to make the best choices for your case.

There are instances where the client will demand that the attorney do things that either are not proper, or unfounded, that if done would ruin your case. Remember, you must have faith and trust in your attorney. If not, then you might want to look for another lawyer to represent you.

These are five of the main reasons why your malpractice case will be rejected by a New York Medical Malpractice Attorney.

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19 2 Questions Every NY Malpractice Lawyer Needs to Ask

A potential client calls the office with a story that rambles on and on. I can’t follow the timeline, and I can’t determine why this person is calling, and cannot tell what injury they’re calling about. As politely as possible, I tell them to stop and listen to this two-part question:

“What do you think was done wrong, that caused you permanent harm?”

That question usually stops most callers cold. They pause to think about the permanent injury they may have suffered. Most callers have no problem explaining how they feel a doctor or hospital did something wrong. However, when asked to link the wrongdoing to the permanent injury, many callers simply get stumped, finally recognizing that they may not have a potential case here in the State of New York.

The two-part question mentioned above has contained within it three elements needed to prove a successful case. In every medical malpractice case in New York your lawyer must be able to prove that (1) there was wrongdoing, (2) the wrongdoing caused injury, and (3) the injury is significant and permanent. Lots of callers can talk at length about elements numbered one and two, but when they think about the permanent injuries, many realize that they simply don’t have any long-term permanent injury.

It is also important for any lawyer you speak to, to inform you that all three of the elements needed to prove a malpractice case must be confirmed by a medical expert who has either treated you, or reviewed all of your medical records. If any one of those elements is missing, then there’s no way to successfully prove your case.

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20 10 Things You Absolutely Need to Know to Start an Injury Lawsuit

1. Lawsuits seek to compensate you for your injuries.

a. They compensate you for:

i. Your lost wages, and your future lost wages,

ii. Your medical expenses, both past and future, and

iii. Your pain and the suffering it caused in the past, and for the future.

2. Lawsuits do not directly seek to harm anyone’s reputation.

3. A doctor who is sued will not lose their medical license if the lawsuit is successful.

4. A lawsuit attempts to compensate the injured victim, and at the same time, try to ensure that the same type of bad treatment is not repeated in another patient.

5. “A lawsuit is not a lottery.”

a. This phrase is often used by defense attorneys during jury selection to remind jurors that their job is not simply to allow the injured victim to “hit it big” and award huge amounts of unjustified money.

b. A more realistic approach to a lawsuit is for reasonable, full and fair compensation to allow you to recover all of your past and future expenses, and all of your past and future pain and suffering compensation.

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6. You don’t have to pay any money up-front to an attorney to handle your case. There is no “hourly fee”.

a. Medical Malpractice and injury cases are generally handled on contingency.

b. That means that the attorney fee depends upon you winning your case. If you lose, the attorney loses as well, and receives no fee.

c. The expenses that the attorney pays to prosecute your case are technically supposed to be repaid by the client in the event the case is lost. However, as a personal matter, I have never asked a client to reimburse me for my expenses if I lose a case. It just doesn’t make sense to do so, and in my personal opinion, it’s bad business. However, some attor-neys do require this, so make sure you ask first before you make your decision.

7. Not every attorney has the same experience.

a. Ask your attorney how many years they’ve been in practice,

b. Ask the attorney what percentage of medical malpractice or accident cases he handles compared to other types of cases,

c. Ask whether he/she tries cases in the Supreme Court (it’s the trial level court for New York,

d. Ask whether he’s ever lost a case;

i. If he tries cases, and claims he’s never lost a case… I would suggest either that the attorney is not being accu-rate, or simply only accepts clear-cut cases that he cannot lose- that’s extremely rare.

ii. The majority of trial attorneys will have lost a case from time to time. Unfortunately, it’s the nature of the beast.

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e. Ask whether the attorney you meet with will be the one handling your case on a day to day basis. If not, who will be your attorney? Whom will you call with questions? How quickly will the attorney call me back? How often can you expect to receive correspondence from the attorney about the status of your case?

8. A lawsuit takes time to come to a conclusion.

a. The average time is 2-3 years from start to finish.

9. How often do I have to come into the attorney’s office during this time?

a. Once to meet the attorney in an initial meeting,

b. Once to sign documents that start your lawsuit (often this can be done by mail),

c. Once to have your deposition (where you are asked ques-tions by the other side’s attorney),

d. At least once to prepare you for trial, and sometimes two or three additional times to prepare you.

10. As in life, there are no guarantees to winning. However, with good experienced counsel and thorough preparation, you stand a much better chance of being fully informed about your prospects and achieving a good result.

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Section 3

How Lawsuits in New York Work

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21 A Medical Malpractice Victim’s Guide to Compensation in New York. Part 1.

Medical malpractice can cause significant and permanent injuries. Our society recognizes the right to obtain compensation if we are harmed by someone else, whether through an accident or by medical negligence. Negligence is typically defined as someone who is care-less. In a medical malpractice case, negligence is defined as being a departure from good and accepted medical care. In an accident case, negligence is really someone’s carelessness that caused harm.

Compensation is defined as the right to be paid for something that is owed. It’s not a handout. It’s not a give-away. It’s not a winning lottery ticket, or a slot-machine jackpot. Accountability is the obli-gation to account for one’s actions. Most people will agree that each person should be held accountable for their actions. In our society of justice, if a wrongdoer is not held accountable for their actions, there is a good chance that person will do that wrongdoing again and again. If we are a society of people who require that individuals take responsibility for their actions, then a wrongdoer is responsible not just for the happening of an accident, but also the injuries that arise from that accident. That’s what compensation is about.

How does an injured medical malpractice victim get compensated for their injuries?

1. The injured victim and their family needs to meet with an expe-rienced medical malpractice lawyer- someone who has handled cases like yours. The attorney will obtain your medical records from the doctors and hospitals who treated you. Once all records are obtained, your lawyer will send your records out to a medical expert, usually someone who has the same specialty as the doctor who you believe caused you harm.

Only after confirming that there were (1) Departures from good medical care, and (2) That those departures were substantial causes

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of your injuries, and (3) That your injuries are significant or perma-nent, can a lawsuit be started on your behalf.

2. Compensation comes in one of two forms: (1) A settlement, or (2) A verdict

A settlement is a guaranteed amount that a doctor, hospital or their insurance company has agreed to pay to resolve your case. In order to make your settlement valid, there are specific ways in the State of New York to do this. The most important one is to have the settle-ment done in “open Court”, and place the settlement details “on the record” with a court reporter. If the settlement agreement is not done in Court, and is done by letter between the attorneys, there must be specific details about the agreement in order to make it binding.

There was a recent case in New York where a lawsuit was brought by a malpractice victim and both sides eventually agreed to settle the case. The terms of the agreement were made and confirmed by letter to the defense attorney. Before the settlement could be processed by the insurance company, the victim died, and the insurance company tried to get out of the deal by claiming that there was no binding agreement to begin with. Unfortunately for the victim’s family, a New York appeals Court agreed with the insurance company and held that since there was no valid binding settlement agreement while the victim was alive, there was no binding settlement once he died.

Needless to say, I’m sure the victim’s family brought a legal malprac-tice lawsuit against their attorney.

Join me for the conclusion of this article titled “A Medical Malpractice Victim’s Guide to Compensation in New York. Part 2.”

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22 A Medical Malpractice Victim’s Guide to Compensation in New York. Part 2.

A verdict allows a victim to “enter judgment” against the doctor or hospital for the amount that has been awarded. In addition to the award, interest will be added to the award for past pain and suffering from the time of the malpractice until the date of the verdict.

Once a judgment is entered, the attorney can make every effort to collect against the doctor, hospital or its insurance company.

Elements of compensation

1. Pain & suffering

2. Economic loss

(a) Medical & hospital bills

(b) Lost wages

(c) Lost future income

(d) Lost benefits

(e) Lost future benefits

(f) Future medical expenses, including doctors, hospitals, surgery, rehabilitation, medical insurance premiums, nursing, medications & medical equipment.

Pain & Suffering

A settlement for pain and suffering is based on what other similar cases have settled for. Many times your lawyer can determine what 5 days of suffering is worth in the County in which you have your case. They can try and find similar cases and injuries to what you experi-enced to get a sense of the value of your particular case.

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Having said that, it’s important to note that every case is different, and every person who suffers an injury handles it differently. That’s why there’s such great fluctuation between similar cases, especially in different parts of the State. A jury in upstate Albany County may view a fractured arm as having a lower value than a jury in Manhattan or the Bronx. Importantly, pain and suffering awards are tax-free in New York.

Economic Loss

This is an element of “damages” that is readily calculated. If the victim was working, we can piece together what they were earning at the time of the malpractice, and then project forward what they likely would have earned in the future had they not suffered such horrible injuries.

In order to help a jury understand the value of money, medical malpractice lawyers will often hire economists, experts at evaluating and discussing the value of money. We all know that the value of a dollar 20 years ago was much different than it is today. That’s known as inflation. An expert economist is brought in to explain to a jury that a dollar today will not buy the same things 10, 15, 20 and even 30 years from today. That is why when we ask a jury to make an award today, they must recognize that this award will be used to help pay for medical expenses for the rest of that victim’s life. If an award is made to pay for something that costs $100 dollars today, in 15 years that same $100 will not be able to buy the medical device that he used to buy it 15 years earlier. It would not be fair to the victim or his family to dig into their own pockets to pay for those expenses, especially when they did nothing to contribute to the victim’s inju-ries. It should be the total responsibility of the person who caused the harm.

To determine what medical expenses are likely to be incurred in the future, medical specialists are brought in to discuss the victim’s injuries and what they can expect to happen in the future. We often include rehabilitation experts, and vocational experts to explain what type of employment this handicapped individual might be capable of

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doing in the future, and what kind of income they could ever be expected to earn.

Conclusion

These are the basics to understanding how a medical malpractice victim obtains full and fair compensation in the State of New York.

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23 What is Your Life Worth?

If you asked someone what the value of a wife’s household duties were, what would they say? If you asked someone what the value was of a mother who stayed home to take care of her two small children, what would they say? What if you asked someone what the value was of a father, in the prime of his life, to his three children in grade school, what would they say?

If someone was earning $75,000 per year and was unable to work for two months, you could easily calculate how much income they lost. But are you able to calculate the lost benefits that man would have received had he continued to work? If he was at work during those two months, he would have given that big presentation he was working on for the past year. He’d have done so well that he would have gotten that promotion he was working so hard to get. With that promotion came a larger salary, increased pension benefits, his own parking space, and more importantly, the opportunity to hob-nob with the big-wigs in his company. But since this man was out on disability because he was hit by a car, he was unable to achieve these goals he had set for himself.

What is the value of what this man has lost? The lost opportunity to move up the ladder, the lost opportunity for promotion, the lost chance for more benefits and increased recognition within the company? Can you place a dollar value on these losses?

Let me ask you this, if you own a Picasso painting that is valued at $5 million dollars, and that painting is destroyed in a fire, is there any doubt how much your insurance company should reimburse you for your destroyed property? They must reimburse you $5 million dollars.

Now, using that same argument, if a man earns $75,000 per year and is hit by a car, and he is unable to return to work for two months,

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the insurance company should have no problem reimbursing him for his lost earnings- 2 months worth. But wait! What if this man, who suffered a broken left leg and right arm, is no longer able to do the same type of work he did before his accident? What if his ability to work is now limited? Do you think the insurance company is respon-sible to pay for this man’s lost future earnings compared to what he is earning now? If they’re responsible for his lost earnings in the past, shouldn’t they also be responsible for his inability to work in the future? What about his limited ability to work? Should they also be responsible for the limited work he can now perform and make up the difference from what he was earning before? The answer is yes.

What if this man was a professional basketball player who earned $5 million dollars a year- not an unreasonable sum of money today for a pro basketball player. Is the driver of the car that hit him responsible if this man can no longer play basketball and his career is over? That 5 year contract, worth a total of $30 million dollars is worthless if this man can’t play ball. Who do you think should be responsible for that life-altering accident?

What I’ve been discussing here are key elements of compensation that an injured victim is entitled to receive in the State of New York. Importantly, we haven’t even touched on a victim’s pain and the suffering that an accident can cause not only on the injured victim, but on his spouse and family as well.

It is important to remember that compensation is a duty to repay a debt that is owed.

When a person causes an accident or an injury, regardless of whether it was a careless driver, a homeowner who didn’t shovel their side-walk, or a doctor who failed to diagnose cancer, they have now created harm where there was none before. They now owe a debt to the injured victim. Compensation in New York is repayment of that debt. Often that repayment is expensive. The injured victim often requires corrective medical care, the possibility of surgery and extensive physical therapy for rehabilitation. Shouldn’t the injured victim be able to pay for the best medical care money can buy? Or do

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you think it’s OK for an injured victim to go to any old city clinic and get whoever is on duty that day to correct a problem that someone else caused?

The compensation I’ve been talking about here is what is known as “economic damages.” These can be calculated. The cost of a house-keeper to do a wife’s household duties can be calculated by an economist. The value of a stay-at-home mom can, on some level, be calculated. Lost income and lost future earnings can be calculated. The cost for future medical expenses can be calculated. I don’t think many people would argue that these expenses should not be repaid to the injured victim, especially since this is part of a debt that is owed and must be repaid.

What about the “non-economic damages,” also known as “pain and suffering.” Shouldn’t this be compensable too? Remember, we haven’t even touched on this subject yet. I’ve only been discussing the actual economic loss that someone has suffered from an acci-dent or medical malpractice. However, the suffering that an accident causes is often a very large part of any claim. Why? Just think about how an injury affects an accident victim:

Before the accident, Tim used to play catch with his seven-year-old son in their backyard. Because Tim is now in a wheelchair, he can no longer run and play baseball with his son. He can’t drive- not the way he used to. Getting into and out of a car is a time-consuming chore that was previously effortless. He has a basement and a second floor in his modest home. Tim can’t go into his basement and play ping-pong with his 12 year old daughter. Nor can he walk upstairs to go to bed with his wife anymore. He’s had to convert his living room into a modified hospital room. Those front steps to their home have now been converted to a ramp since he couldn’t get his wheelchair up those steps. The dinner table had to be cut down to allow Tim to sit at the table with his family, because his wheelchair wasn’t high enough to reach the table top.

Did I mention that Tim loved to ski and hike in the Vermont moun-tains? For the rest of Tim’s life, he’ll never be able to ski or hike again.

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Tim lives in his wheelchair that has become his home for 18 hours each day. Did you know that because Tim can’t feel anything below his waist, he’ll get sores on his butt and infections that he won’t even know about until it is festering? The doctors tell Tim that he’ll need a new wheelchair every five years. “What does a wheelchair cost?” Tim asks.

Tim must face his friends and family every day and explain his new-found limitations in life. Have you considered what will be of Tim’s relationship with his wife? Do you think his wife is going to be able to take care of Tim’s daily medical needs at home without help? Can she cook, clean, take care of the house and kids and take care of her husband’s daily cleaning rituals? How do you take a shower if you can’t walk? How do you dress yourself if you can’t get to the closet and reach those high shelves with your clothes? What if, God forbid, there is a fire in his home? How does he get out quickly if nobody else is home?

With every accident or malpractice injury there is usually a physical injury that can be devastating. Have you also considered the psycho-logical impact of an injury? Our minds are vigorous and active. An injured victim is often trapped within their body. The emotional toll an injury causes and the psychological after-effects are equally devastating. Yet with all that we know about repaying a debt that is owed, how is a wrongdoer or their insurance company going to repay a debt that cannot easily be quantified?

Well, let’s go back to the $5 million dollar Picasso painting. If the value of that painting can be calculated and replaced then why can’t the value of human suffering and the indignity it causes? All arise from the same accident or medical wrongdoing. Isn’t there some way we can repay that debt too? There is. Unfortunately, since there are no exact numbers for our pain and suffering and every person who is injured is different and experiences a different level of injury, no two cases are exactly alike. Yet pain and suffering is a very real part of a victim’s life. There is a way to compensate such a injured man... use the economic damages as a starting point and go from there. The only downside to this is if the injured victim is not working

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or is very young or very old. In those cases you will not have all of those economic damages to look to when starting your journey in awarding compensation for human suffering. For those cases you must use your common sense and understanding of the human condition in order to reach a full and fair number to compensate a victim for their pain and the suffering they’ve endured and will endure for the remainder of their life.

Here’s an example of a story used in closing argument to explain one way to evaluate pain and suffering: “$10 Million Dollars Free!” the classified ad said.

If you thought the ad was true, wouldn’t you race out the door to be the first one in line asking for the promised money? What if the ad said that before you could get your “Free $10 Million Dollars” you first had be involved in a head-on car crash? How many people do you think would still wait in line for that free money? I’ll bet you there would be some desperate people waiting for that money, regardless of what it took to get it. What if there were more condi-tions that you had to meet before you could get that money?

Let’s say in addition to getting hit by a car head-on, you had to have been ejected from your car, airlifted by helicopter to the nearest trauma center where you fractured your pelvis, both your legs, were on a respirator for 20 days, you needed surgery to put the broken bones back together with hardware, pins and screws, and were hospitalized for 4 weeks. How many people do you think would still be in line asking for that “Free $10 Million Dollars?” Not many. Yet I’m sure you’d still find a few very desperate souls willing to do most anything for that kind of money.

But wait! Suppose there were even more conditions before you could get your hands on that $10 Million Dollars. Suppose that in addition to the horrendous trauma, lengthy surgery, complications from surgery, being in a medically-induced coma and hospital-ized for an entire month, you needed three weeks of rehabilitation therapy where you learned to walk again. Suppose you also couldn’t return to your job earning $60,000 per year, and you couldn’t play

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with your children because you could barely walk. Your six-year-old wonders why you can’t play soccer and baseball with him, and your 11 year-old asks why you’re home during the day instead of being at work. You spend your days watching ridiculous daytime soap operas thinking how you’ll support your family since you can’t work. Suppose your doctor tells you that you’ll never be able to play sports again, and you’ll be lucky to walk without a limp. Your job at the loading dock required heavy lifting and there’s no way you can lift more than ten pounds now. You doctor says that if you go back to the type of work you were doing before, there’s a good chance you’ll never walk again.

How many people, given those conditions do you think would stick around asking for that “Free $10 Million Dollars?” I don’t think anyone would.

In certain cases, we use this argument in summation to explain to a jury how significant a victim’s injuries are and how the money that we’re asking for is justified. If a lawyer simply asks a jury to award $10 Million Dollars without providing a background or evidence to support the award, a jury is unlikely to give away such a large sum of money. However, when presented with a reasonable explanation such as the one above, it becomes much easier to understand how such an award can be appropriate.

Importantly, a good attorney will usually understate the value of their case, and once the extent of the injuries become apparent, the jury will (hopefully) recognize that the amount asked for is not suffi-cient to cover all of the medical expenses, lost wages and pain and suffering that the injured victim has suffered.

You think you want $10 million dollars? Sure, who doesn’t. But if an injured victim asks for that compensation, look to see what inju-ries they’ve suffered. Only by looking carefully do we see that this certainly isn’t a “windfall” or a “winning lottery ticket”. Instead it is full and fair compensation.

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24 5 Typical Defenses in a Medical Malpractice Case

A medical malpractice case is typically defended with the following 5 important defenses:

1. We didn’t do it, but..

2. If we did it, it was an acceptable risk,

3. However, if we did it, and it wasn’t an acceptable risk, then the patient wasn’t hurt by it, but...

4. If the patient was hurt, he wasn’t hurt that badly, and finally,

5. We didn’t do it, but even if we did, the patient also contrib-uted too.

It is the extremely rare case where the defense admits causing injury and the extent of injury. Those cases are settled quickly without ever going to trial.

The majority of medical malpractice cases in New York are settled prior to trial. Of the remaining 5-10% that are not settled, the physi-cian wins the majority of them at trial. Defense counsel have gotten their clients off the hook using the defenses listed above. Obviously, the list above is overly simplistic, but it’s easy to see how it applies in any malpractice case.

Jimmy D’Victim arrives in my office claiming that hernia surgery caused a perforation in his colon. The defense will quickly claim that (1) Jimmy needed the surgery, (2) That a perforation is a known recognized risk of the procedure, (3) That there is no real injury, (4) That if there is an injury it’s minimal, and (5) That he caused all of his own problems because he moved during surgery or failed to follow

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the doctor’s instructions before, during and after surgery. Is it any wonder that most malpractice cases are won by the defense?

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25 15 Key Deposition Techniques in a Medical Malpractice Case

Questions to Ask the Defendant Doctor

WARNING: Preparation is the entire key to a doctor’s deposition. You must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.

1. Most lawyers ask the same boring questions at the beginning of every deposition:

a. State your name and address

b. State your qualifications, pedigree, schooling, etc.

Comment: Okay, this is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctor’s deposition this way. Why not go right to the heart of the case with the very first question? You can always get the doctor’s credentials later or at the end. Besides, the credentials are usually found online or in a curriculum vitae, and don’t help except to establish where he went to school and whether he’s board certified in any specialty. On more than one occasion the doctor has been disoriented by this approach. They are usually prepared for questions in a lock-step manner and do not expect something so unusual, but legally permissible set of questions right off the bat.

2. Go ahead–ask why they operated on the wrong side of the brain as your first question. “Objection, no foundation,” says the defense attorney. “So where does it say in the CPLR I need to lay a founda-tion question?” Despite this exchange of “ideas”, if you get such an objection, then simply ask:

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a. “Didn’t you operate on my client on this date?” b. “Isn’t it true you operated on the wrong leg?” c. “Why?”

3. I always advocate asking the “why” question at deposition. It is much better to know the reasons why a doctor did or didn’t do something now, rather than save the question for trial. At trial, the reason may be devastating to our case, and if so, I want to know about it now. Besides, when you question a doctor at trial, as an adverse witness, you never want to ask a question in which you don’t know the answer. If you do, you subject yourself, your client and your case to inherent risks that could jeopardize the case.

4. Make the doctor read his notes into the record. This is important for anyone who is trying to decipher the doctor’s handwriting later on. Your expert will definitely need to know whether the scribble is important, and the only way to do that is if the doctor explains, on the record, what his scribble means.

5. Be polite. At all times. You can’t imagine how many lawyers don’t listen to this recommendation. They think they know it all, are sarcastic, belligerent, annoying, and really annoy everybody in the room. The doctor’s attitude in responding changes as well. No longer is the doctor as verbose. No longer does the doctor look like the perpetrator. Rather, he might begin to look like a victim if attacks against him and his credibility are kept up.

6. You can still make all your points without being hostile, angry, yelling or screaming. The old saying “you get more with honey than with vinegar” speaks volumes. Naturally, you’re not going to bend over and sweet talk your way to getting the doctor’s admis-sions about how he screwed up. But, the key is being professional and knowledgeable. You gain more respect from your adversary- (don’t worry about respect or lack of it from the doctor) by being respectful than you do if you are antagonistic.

7. There are times when you want to rile the physician. You want to know if you can push his buttons. You want to know how easily

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it is to rankle his composure. If it’s easy to do at deposition, your trial strategy toward this witness just got that much easier.

8. Find out about conversations the doctor had with the patient, family members and other doctors. Remember, conversations are rarely recorded in a hospital record. Make sure you ask the doctor to confirm or deny comments that your client has testified about. Most often, the doctor will claim they no longer recall the conversation. But, if your client does, it’s much more possible that the conversation occurred. If the doctor denies making certain comments, then you know you have different facts about the same conversation, and a jury will have to ultimately decide who is telling the truth.

9. Ask whether the doctor has ever had his license to practice medi-cine suspended and/or revoked.

a. Ask whether their hospital privileges have ever been suspended or provoked.

b. Always ask whether the doctor has given testimony before.

i. Ask whether it was an expert for plaintiff or defendant

ii. Ask whether they were a treating physician

iii. Ask what type of case it was, and the name of the case

iv. Ask whether they were paid for their time in Court to testify in that matter

10. In New York, in a medical malpractice deposition, you must ask opinion questions. The doctor- as a defendant is required to answer “expert” questions and give answers about his medical opinions.

a. Do you have an opinion, with a reasonable degree of medical probability whether the treatment rendered to Mrs. X was appropriate and within the standard of care?

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b. If you have an opinion, what is that opinion?

c. Confront the doctor with other opinions in the medical community that disagree with his school of thought and ask what he thinks of those opinions.

d. Ask the doctor to admit to certain facts- Here’s an example:

i. Isn’t it true the patient got Ex-lax at 10 p.m.?

ii. Isn’t it true that patients with colon tumors shouldn’t get Ex-lax?

iii. Are there any circumstances when you would prescribe this medication for a patient who had this tumor?

iv. Would you agree that if the patient got Ex-lax at 10 pm that would be a departure from good care?

v. Would you agree that the only reason the patient suffered injury was because she got Ex-lax at 10 pm?

vi. Would you agree that had she not gotten the Ex-lax at 10 p.m., she wouldn’t have suffered the bowel perforation?

11. Make sure you rule out other potential causes of injury besides the malpractice that you are claiming occurred here. The reason you do this is to learn the potential defense to your case. The defense will always come up with some explanation as to why your argument is not valid. Better you should learn it during the deposition than to head to trial without knowing what their defense will be.

12. Ask many open ended questions. Ask who, what, where, when, why, and how. By doing this, you will get the doctor to talk and explain. If the doctors is going on and on without directly answering the question- and his attorney is letting him- that’s

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okay. Let him keep talking; you might actually get some useful information. When he stops talking simply say “Maybe my ques-tion wasn’t clear doctor. What I was looking for was… can you answer that question?” Always take the blame if the doctor says the question is not clear. Don’t respond to him by asking “What didn’t you understand about my English language question?”

13. Ask about medical definitions.

a. What is an endocervical curettage?

b. What is a myocardial infarction?

c. What is hypoxia?

d. Ask whether these definitions are commonly accepted within the medical community, or whether there are other schools of accepted definitions.

14. Ask whether they’ve reviewed any medical literature or textbooks prior to coming to the deposition.

a. Did you bring any with you?

b. Which ones did you review?

c. What did you learn from the article? Did it support your position here, or was it contrary to your position?

15. Finally, but not last, ask about credentials, schooling, licensing, board certification- but you should already have this informa-tion before your deposition when you research the defendant doctor. I always advocate doing a Google search on the physi-cian to see if they’ve authored anything or if there’s anything out there online that’s worthwhile knowing. I recently learned from an online search where the defendant doctor was fired from his residency and sued the chairman of his department. Needless to say, this information proved very useful at deposition.

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There have been many books written about how to conduct depo-sitions. The most important factor about taking a doctor’s deposi-tion has, in my opinion, been the experience of the attorney doing the questioning. Anyone can read from a list of prepared questions. It takes an experienced attorney to listen to the answers and know where you want to go and then develop a strategy on how to get there while protecting your client’s rights to the best of your ability.

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26 What is a Deposition and Will I Have to Testify?

Q: What is a deposition, and will I have to testify at a deposition?

A: First, a deposition is a question and answer session where you will swear (or affirm) to tell the truth. The questions and answers are recorded by a Court stenographer, who will later transcribe all of the questions and answers into a booklet.

If you are bringing a lawsuit for injuries you or your loved one suffered then you will be required to testify about your knowledge of the events and your knowledge of the injuries. You will also be asked questions about how those injuries have affected you (or your loved one) and what treatment you’ve received to treat those injuries.

The attorney(s) for the people you have sued will be questioning you, usually in my office. Sometimes, because of an inability to travel, we can accommodate the injured victim and conduct the deposition closer to their home. Naturally, I will be there with you every step of the way.

Prior to your “deposition” you will meet with me, either on the day you are scheduled to be asked questions, or on a scheduled day before the deposition. During that meeting, I will prepare you exten-sively about what you can expect will be asked of you by the other attorney(s). By the time we have finished our meeting, you will be aware of practically all the types of questions you will likely be asked by our adversaries.

During the deposition, if you have any questions or concerns, we can take a break and discuss them in the privacy of my office.

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Once your deposition session is finished, you can expect to receive a copy of the booklet that contains all of the questions and answers asked and given. You will also receive special instructions about how you must review the transcript for any errors, and what to do if you find factual or typographical errors.

On another date, I will have an opportunity to then question the “defendant” (the party that you have sued) to determine from them what happened and why. You are welcome to attend the defendant’s deposition with me, however there are some instances where I will advise against being there, and in some instances I will encourage the client to accompany me.

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27 Judgement Non Obstante Verdicto - What is it, and Why Should You Care?

You’ve just won a hard-fought trial. The jury rendered a substantial verdict and you’re happy that you won. Two weeks later the defense asks the trial judge to dismiss your hard-earned verdict and asks for judgment non obstante verdicto. What does it mean and why do you care?

Judgment non obstante verdicto means that the lawyer is asking the judge to reverse the award or judgment despite the award. It’s a Latin term used to say that the judgment should be overturned despite the verdict. Typically, a lawyer will make this argument when the jury has reached a decision that is so contrary to the evidence that’s been presented.

For example, where an injury victim of hospital wrongdoing has presented eyewitnesses and expert doctors who have testified and confirmed that the treatment she received departed from good care, and the defense does not contradict those claims- it would appear that the decision is a “no-brainer” and the doctor or hospital should be held responsible. However, for unknown reasons, the jury renders a verdict for the defense. In that instance the victim’s attorney asks the Judge to set aside the jury verdict as being against the weight of the evidence.

A decision to overturn a jury verdict by a trial judge does not happen that often in New York- but on occasion it does.

If your attorney tells you that he can’t understand how the jury could possibly have awarded a decision that they did, in all likelihood, your lawyer will suggest asking the Court to disregard the jury’s award and render a verdict in your favor. In the alternative, he may also ask for a new trial.

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28 What is “Summary Judgment?”

You think you have a good case. Your lawyer tells you that you have a solid case. Your lawyer tells you that your case has been reviewed by a medical expert who feels that there were departures from good and accepted medical care that caused you permanent harm. You have met all the requirements to bring your lawsuit in the Supreme Court (the trial level court) in the State of New York.

You proceed with discovery- exchanging medical records and other papers. You appear for a deposition (a question and answer session where the defense lawyer gets to question you at length about what happened to you and what injuries you suffered because of the malpractice). The doctors who treated you are questioned by your lawyer.

Your lawyer continues to tell you that you have a good case. Except for one problem... The defense lawyers have now asked the trial Court to dismiss your case. They’ve made a motion for summary judgment. There are many reasons a defense lawyer could use to ask for your case to be dismissed. The most common one is to claim that there simply is no malpractice. The defense lawyer will usually support this claim with statements from the doctors you have sued where they swear up and down that there is no evidence of wrong-doing. They may claim that whatever happened to you was out of their control, or a “known complication” that can occur with your procedure, treatment, and medical care. The defense will claim that there is no “Question of fact” as the facts are not contested. They will also claim that the only issue is one of “law” which must be decided by the Judge assigned to the case, and not one of “act” which would usually be decided by a jury of one’s peers.

When faced with a defense lawyer’s request to dismiss your case, your lawyer must now bring out all of his ammunition in order to fend off this potentially lethal assault on your claim. Your attorney

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will prepare a detailed statement for you to sign which explains in detail the facts of your case. It will also set forth why you believe you have a valid and meritorious case. In New York, your attorney is then required to have your expert detail the specific reasons why he or she believes there is a valid case. Your lawyer’s “affirmation in opposition” will detail all of the factual inconsistencies that exist in the medical care rendered to you.

Only by establishing that there are “Questions of Fact” for a jury to decide, will the defense lose their request. If there are no real questions of fact that exist either by competing experts, or from the parties to the case, then your case will likely be dismissed by the Court before you ever get to trial. If this happens, you should seriously consider an appeal after evaluating the reason why your case was dismissed. In most medical malpractice cases, if both sides submit expert state-ments that are opposed, that will usually be sufficient to create ques-tions of fact that will require a jury to decide.

A defense attorney must evaluate the likelihood of winning such a motion before deciding to proceed forward with such a time-inten-sive and research intensive event. The only favorable thing that will occur for the defense- if they proceed with a motion for summary judgment, regardless of whether they win the motion or not, is that they will learn of the plaintiff ’s expert witness much earlier than they normally would, and also the detailed substance of what he will testify about at trial. This tends to flush out the expert and his testi-mony. If your lawyer tries to oppose the “motion to dismiss” without a statement from your medical expert, you can be sure that your case will be summarily dismissed.

Hopefully you will not encounter this request to dismiss prior to trial. Keep in mind that even if your case proceeds to trial, the defense is entitled to ask the Court at the end of your presentation of evidence, to dismiss your case before they even put on any defense witnesses. With proper proof, expert testimony that supports your claim, you will have established a “prima facie case” which means that you will have proven all the elements necessary to have your case decided by the jury.

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29 Injured in a NYC Hospital - How Much Time Do I Have to File a Claim?

You’ve been injured while in a City-owned, municipal hospital. Not just any hospital in New York City... a municipal hospital. It’s extremely important to learn how much time you have to file a claim against the hospital, and how much time you have to file a lawsuit. If you don’t file in a timely fashion, you’ll likely never be able to bring a claim for your injuries.

First, here are a list of municipal hospitals in New York City:

• Bellevue Hospital Center

• Coler-Goldwater Specialty Hospital and Nursing Facility, Franklin D. Roosevelt Island

• Gouverneur Healthcare Services

• Harlem Hospital Center

• Metropolitan Hospital Center

• Renaissance Health Care Network Diagnostic & Treatment Center

• Jacobi Medical Center

• Lincoln Medical and Mental Health Center

• Morrisania Diagnostic & Treatment Center

• North Central Bronx Hospital

• Segundo Ruiz Belvis Diagnostic & Treatment Center

• Coney Island Hospital

• Cumberland Diagnostic & Treatment Center

• East New York Diagnostic & Treatment Center

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• Kings County Hospital Center

• Dr. Susan Smith McKinney Nursing and Rehabilitation Center

• Woodhull Medical and Mental Health Center

• Elmhurst Hospital Center

• Queens Hospital Center

Generally, you have only 90 days from the date of the malpractice within which to file a claim against the New York City Health and Hospitals Corporation (that corporation is technically the entity that owns and is responsible for these municipal health care facilities).

If for some reason you have missed the deadline to file a claim, there are certain limited exceptions that might allow you to file your claim late. However, in order to do this, your lawyer will have to ask a Court for special permission to file late, and there are specific legal reasons why your case might be accepted even though it is late, and many reasons why it will not be accepted.

The important point to remember is that if you even suspect that something was done wrong at a municipal hospital within the City of New York (that means within the 5 boroughs, New York, Brooklyn, Queens, Staten Island, and The Bronx) you must contact an experi-enced medical malpractice lawyer immediately in order to protect your rights to bring a claim and then a lawsuit.

In the State of New York, you must file a claim that is timely first, before you can ever file a lawsuit. This requirement applies only to cases against a municipal hospital and also a State-owned hospital. This does not apply to a private hospital. This is known as a “pre-requisite”. Your claim must be filed first, and then you have a limited time in which to start your lawsuit.

Typically, you have only one year and 90 days from the date of the malpractice within which to start your lawsuit against the New York City Health and Hospitals Corporation. There are very few

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exceptions to this rule. **This is important!** Even though this information is accurate as of the time of this writing (November 26, 2007) you must consult an experienced New York medical malpractice attorney to confirm that it is still accurate at the time you believe you have a claim.

Importantly, you cannot wait years to bring a claim or a lawsuit against one of the hospitals listed above. You must act immediately. As always, speak to a qualified lawyer who handles cases similar to yours before making any decision about the time to file a claim and the time to start a lawsuit. Being an informed consumer will make you a better client and help you understand how the legal system works.

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30 What is “Falsus in Uno?”

“Falsus In Uno” is a term used by a trial Judge in the State of New York to describe what a jury can do if they believe that a witness has lied about one fact in the trial. Here’s what I mean...

Let’s say a witness has testified about her past employment history and goes for a job interview. In her work history she claims she worked for The New York Times as a reporter and also the Boston Globe. She gets hired and does well at her job. However, it later is revealed that she never worked at the New York Times. Nevertheless, she still keeps her job.

However, years later she got into a car accident and claimed she suffered lost income because of her accident. During the lawsuit the attorney for the other driver questioned her and asked her about where she worked in the past. She testified she worked for the New York Times and the Boston Globe, and was even asked how much she earned at each of those jobs. Once the attorney receives a reply from the New York Times human resources department that this woman has never worked there, a credibility dilemma has arisen for the injured woman.

True, she created the problem on her own, but what effect, if any, could it possibly have on her accident case many years later? The short answer is everything. The long answer is everything too. Here’s why:

Credibility is the key to any lawsuit. The person who brings the lawsuit is expected to have “clean hands” and not have done anything wrong. The attorney for the person(s) you’ve sued will do everything possible to dig around in your background to find inconsistencies and contradictions. Why do they do this? Mainly to impeach your credibility. To show to a jury that if you have lied in the past, why should we believe your story now?

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The “Falsus in Uno” charge is an instruction given by the trial judge to the jurors letting them know that if they find that a witness has lied about something, they are entitled to disre-gard some or all of that witness’s testimony. That “little white lie” that she may have told years earlier to get her reporting job may come back to haunt her in her current car accident case. You might say, “What does her lie, years earlier, have to do with the injuries she suffered and how disabled she is now?”

The answer is everything. The defense will do their best to show that since you lied about something in the past, how can we believe the extent of your injuries now? Even though they may seem unrelated, the woman’s credibility is her entire case. If the jury believes her, she will likely get compensated. If they do not believe her, she will likely leave court without any money. Credibility is everything at trial.

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31 Your Case is on the Trial Calendar - Can Defense Lawyers Talk to Your Doctor?

Your New York attorney has notified the Court that your case is ready for trial. It’s been two years since you started your medical malpractice lawsuit in New York. You must now wait months before being notified by the Court that jury selection is to start on a specific date. In the interim, your lawyer tells you that the defense lawyers want to talk to your treating doctor. The purpose? To get dirt on you and try and minimize your injuries and permanent damages. “Can they do this?” you ask. The answer is yes.

Here’s what happens when a lawyer notifies the Court in New York State that a case is ready for trial:

1. The lawyer must file a document with the Court called a “Note of Issue” that must be sent to all the lawyers in the case. That document tells everyone that the discovery phase of the lawsuit is over. Discovery is the opportunity for all sides to obtain records, documents and pre-trial testimony relating to the case. Once the “Note of Issue” is filed, that closes the door to any party getting additional discovery.

2. In New York, if a defense lawyer wants to talk to your treating doctor, they must get a permission slip from you to talk to them. Otherwise, the doctor, by law, cannot speak to anyone about your care and treatment. “But it’s not fair,” you say. “Why should they use my own treating doctor to say bad things about me, or to ruin my case with his statements?” you ask frantically.

Here’s the rationale: When you bring a lawsuit for medical malprac-tice or personal injury, you put your medical condition in issue. You claim that as a result of a doctor’s wrongdoing, you suffered perma-nent injury. The defense is entitled to learn about the extent of your

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injuries by getting your medical records, and if necessary to speak to your treating doctors.

3. Recent case law in New York has held that if a defense attorney wants to question your doctor after the case has been put on the trial calendar, they can, with some restrictions.

4. The defense lawyer must first tell your lawyer he wants to question your doctor. Your lawyer is then obligated to provide a permission slip, that you have signed, giving the doctor permission to speak to the defense lawyer. Importantly, that permission slip should say that the doctor is not obligated to speak to the defense lawyer, but can do so if he chooses. That authorization should also say that the purpose of the defense lawyer speaking to the doctor is not at the request of the patient, but solely to help the defense lawyer in defending a doctor or hospital in this case.

The rationale is that the patient’s attorney can speak to her treating doctor at any time, whereas the defense attorney cannot. That’s why NY Courts have allowed this procedure to take place, to give the defense a chance to find out what the patient’s treating doctor has to say, prior to trial.

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32 Is a Doctor’s Past Legal History Admissible in My Current Lawsuit?

In New York, if my doctor has been sued, and I bring a lawsuit against him now, can I use his prior cases against him at trial to show how bad he really is?

The quick answer is no, you can’t. Remember, just because someone has brought a lawsuit in the past, doesn’t necessarily establish that he/she is responsible for the patient’s injuries. The facts of each case are very important. The previous case may have nothing to do with the type of claim you intend on bringing.

Even if the cases were somewhat similar, New York law does not allow us to use the prior case to establish that this particular doctor was responsible for your injuries in your case. In some limited instances, we might be able to prove habit or a pattern of behavior. For the most part, we cannot use it.

For example, if you get a ticket for running a red light and the following week get pulled over for driving over the speed limit- the fact that you had a prior ticket for running a red light has nothing to do with whether you were speeding one week later.

Does that mean it has no value? Absolutely not. When we investigate a case, we look to see if the doctor has been sued before, who was sued with him, who the attorneys were, and what the outcome of the case was. In some cases, we contact the attorneys who represented the patient to inquire about the facts of their case, to see if there are any similarities with your case.

If we know that a doctor has a history of being sued, we use it to nego-tiate a better settlement for you, as the doctor’s insurance company will surely have information about the doctor’s lawsuit history.

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33 When is a Settlement not a Settlement?

When it’s not recorded in “open court”, or when the injured victim dies before he receives the settlement check, and the terms of the settlement were never clearly laid out by either side.

Usually a settlement is reached among the attorneys or in Court with the assistance of the Judge. Where there is a verbal agreement between the attorneys as to the terms of the settlement, the victim’s lawyer will usually confirm those details in a written letter to the defense attorney. If a settlement is reached during trial, or at a pre-trial conference, the preferred method of settling the case is to “put the settlement on the record”. This means that a court reporter is called to the courtroom or Judge’s chambers, and the terms of the settlement are recorded and agreed to by all parties and later tran-scribed by the court reporter.

Why is this important you ask?

Because a settlement is not a settlement until and unless these rules are followed. Many attorneys are guided by principles of fairness and doing what’s right for their clients. However, let’s look at the following case where all sense of fairness was discarded.

A lawsuit was brought for a child who was injured at birth. At some point during the lawsuit an offer was made by the defense, and the offer was accepted by the child’s parents. In a child’s case, a Judge must always approve any settlement involving a child. Let’s also assume that the attorneys confirmed their intention to settle in writing subject to the approval of the Court.

This would be just fine if the Court had processed the paperwork quickly and a settlement check had been forwarded without delay. Unfortunately in this case, the Court delayed (unintentionally) processing the paperwork. Also, because the child was so severely

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injured his life expectancy was very limited. Between the time that the attorneys reached an agreement to settle the case and the time that the Court actually approved the settlement, the child died.

You would think that this story has a happy ending, but it doesn’t. The child’s lawyer notified the defense that the child died, and also sent the Court’s approval of the settlement. Now here’s the worst part: the insurance company recognized a way out of having to pay this large settlement by claiming that there was never any proper settlement in the first place!

The insurance company refused to pay, claiming that since the child had died, the agreement that was reached at the time was no longer valid, and absent a Court order, they were not paying a dime!

If that type of tactic doesn’t outrage you, it should. Remember, an insurance company isn’t in business to pay claims. Rather, they’re in business to make profit. Here’s a case where the insurance company had an agreement to settle a case and pay the child and his family money to compensate him for his injuries; the attorneys acknowl-edged in writing to each other the offer and acceptance; and the Court was in the process of approving the settlement. Isn’t that enough to confirm there was a settlement?

Not according to the Court. The decision made it clear that although there was an intent to settle the case, the fact that the parties did not follow the “rules” to settle a case and make the settlement legally binding meant that the insurance company was now totally off the hook.

This is an unbelievable and unjust result for an injured victim and his helpless family. This decision means that the family must now pursue a legal malpractice claim against their own attorney for not settling their case in open court, or setting out the specific details and terms of the agreement in proper form signed by all parties.

What’s the moral of the story? If you settle a case make sure your attorney does it in Court, and makes a record of it. If it’s not done in

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Court, make sure all the specific terms of the settlement are clearly spelled out in a written document signed by all the lawyers. Finally, make sure there is a clause in this agreement that says that the terms of the settlement are binding regardless of whether the injured victim is alive, or has died in the interim. If the plaintiff ’s lawyer had confirmed all the settlement details in his letter, and included this clause, he likely wouldn’t have had a problem.

I’ll bet the insurance company lawyer got a bonus for finding that loophole and outsmarting everyone on that case. How’s that for a sense of fairness?

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34 Cross-Examination of an Expert Medical Malpractice 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.

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’s 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 deliv-eries 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.

Look at the basis for each of the conclusions the expert has reached.

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If the facts upon which the expert rendered an opinion is inaccu-rate or faulty, then his conclusion will also be faulty. It is the obliga-tion of every attorney to whittle away those inaccurate facts that the opposing expert has relied upon, to show that this expert’s 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 pres-sure? Would you also agree that the only time supra-pubic pressure is used is when there is a shoulder dystocia? If Mrs. Jones’s recollec-tion 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 deliv-ered 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 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 pres-sure 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 trac-tion 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.”

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Know the Medicine

In any malpractice case, you must become familiar with the medi-cine 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 poste-rior arm. fracturing the clavicle, the zavanelli maneuver, sonogram, intra-uterine anomalies, maladaptation, malalignment, cervical dilitation, 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 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.

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35 Can I be in the Room When You Question the Doctor Who Botched My Surgery?

Q: When you question my doctor at a deposition, can I be present? Can I ask questions too?

A: During a lawsuit, each side gets to question the other side during a procedure called a deposition. (It’s also called an examination before trial- EBT). During a deposition, it’s an opportunity for me to get specific answers about what happened to you or your loved one. There are important strategies used by experienced trial lawyers when ques-tioning a doctor in your case.

Not only are we trying to establish facts, as the doctor recalls them, but are also attempting to lock the doctor into a position about what was done for you, and why. I will always ask the doctor to read his treatment record, and then have him or her explain the reasons for treating you the way he did.

As a victim or family member of a loved one involved in the case, you are always welcome to be present when I question the doctor at his deposition. However, I must caution you that sitting across from the person whom you believe caused you or your family serious harm is very unsettling. The urge to reach across the table and do something physical is ever-present. The urge to verbally respond to a comment by the doctor is also very strong. Please remember, if you wish to be present, you can. but, the focus and emphasis is on questioning the doctor, not your desire to give him or her a piece of your mind.

If you have certain questions you feel are important to your case, by all means discuss them with me before the deposition. You will not be permitted to ask questions yourself.

Importantly, if you choose not to be present when I question the doctor... not to worry. I can send you a copy of the transcript so you

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can read it at your leisure. In my experience, 99 times out of 100, my client will choose not to be present during a doctor’s deposition.

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36 Do I Need an Autopsy to Prove Our Death Case?

Q: What is an autopsy, and why would it help my case?

A: An autopsy is an in-depth examination of a dead person, by a doctor. The doctor who performs the examination is usually a pathologist who looks to find the precise cause of death. They do this by looking at all of the internal organs, including the brain, heart, lungs, liver, kidneys, and spleen. Each area of the body is examined for evidence that contrib-uted or caused that person’s death.

In a case involving claims of wrongful death (where a person or family has claimed that their loved one died because of someone else’s carelessness) having an autopsy is crucial to proving your case. While an autopsy is vital to support such a case, it can also shed light on the possibility that your loved one did not die as a result of wrongdoing.

It’s a double edged sword. The autopsy could help your claim by showing that your loved one died from wrongdoing, or it could show that the treatment or actions that happened before death did not play a role in causing the death.

There are some religions that prohibit autopsies, and in those cases, it becomes extremely difficult to prove, with a reasonable degree of probability, that wrongdoing (such as malpractice) caused their death. In those cases, we must rely on other evidence to support our claim.

I am often called upon by grieving families to ask whether an autopsy should be performed on their loved one. As in life, there are no set answers to this crucial question. Emotions run high following a family death; questions about improper treatment may cloud a fami-ly’s judgment; uncertainty about the cause of death may also add to a feeling of helplessness.

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The most common case where an autopsy is performed is in a trau-matic accident. In murder or homicide cases autopsies are always performed as the police want to know exactly what caused the person’s death. They can usually use this information to track the perpetrator.

In New York, if a person dies suspiciously, or within 24 hours of having had surgery, an autopsy will usually be performed to deter-mine the precise cause of death.

For example, I had a case where a man on dialysis came home one day, and was found later by his family in his bathroom having bled to death. The walls were covered with blood and there were open bandages all over the floor. An autopsy was able to confirm that the man’s shunt (the place where the dialysis needle was put into his arm each session) had gotten infected and progressively larger with each session. Nobody recognized that he was starting to bleed when he left the dialysis center. Unfortunately, when he arrived home, the shunt ruptured and since it was connected to an artery, blood shot out all over the bathroom, creating what looked like a murder scene. It was only through the autopsy that we were able to prove our case successfully.

Autopsies are usually performed by the County Medical Examiner. In the five boroughs of New York City, Brooklyn, Bronx, Queens, Manhattan and Staten Island, autopsies are performed by the New York City Medical Examiner’s Office. In Nassau, it’s the Nassau County Medical Examiner, and in Suffolk, it’s the Suffolk County Medical Examiner.

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37 Why are Some Settlements Confidential?

In some cases, insurance companies may offer a settlement before trial. Sometimes, in an effort to resolve the case, as an incentive they will offer an amount of money that is acceptable to the injured victim. But, in some instances, the insurance company wants an assurance that the terms of the settlement are not revealed.

They do this for two reasons. Neither one of which is out of the goodness of their heart. The first reason is that they don’t want publicity associated with a settlement. Publicity about an insurance company paying money to an injured victim is never good for them especially since they earn their money by keeping their money, not giving it away.

Second, is that other attorneys with similar cases will never learn that the insurance company paid out a certain amount is a specific type of case. So, when the next lawyer tries to negotiate a case with the insurance company, he or she won’t be able to say “You paid ‘x’ dollars on the Jones case, so therefore you have to pay at least that amount on this case.”

Sometimes, the only way an insurance company will offer such a settlement is on the condition that the terms of the agreement be confidential. Otherwise, there might be no settlement, and the case would proceed to trial.

A client might be willing to agree to this restriction if it were in their best interests. Some clients want to publicize the damage and inju-ries they suffered as well as any compensation they received for their injuries. In that instance a confidential settlement agreement would not be advisable.

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38 What is Medical Malpractice?

Q: What is medical malpractice?

A: It’s a departure from good and accepted medical care in the community in which the doctor practices. Negligence is lack of ordinary reasonable care. Medical negligence is the lack of reasonable care of a physician. The term “medical negligence” is usually equated with “medical malpractice”. In a case involving medical malpractice, your attorney must do the following things:

1. Get a detailed history from you,

2. Get all of your medical records, x-rays, MRI scans and CAT scans, employment records, income tax records,

3. Try and speak to your current treating doctors (some will help and some won’t),

4. Review each and every medical record, page by page, and then,

5. Take all your medical records and send them to medical experts who review and give their opinions about the treatment you had,

6. Review the expert’s opinions with you,

7. Discuss your legal options, such as starting a lawsuit, or if there is no merit to your case, advising you to seek the opinion of another attorney immediately.

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39 What is Lack of Informed Consent?

Q: What is “Lack of Informed Consent?

A: When you have a procedure such as surgery, your physi-cian is obligated to inform you about the risks, benefits and alternatives to the procedure. This way you become informed about your medical options available to you. In many instances, the physician fails to advise the patient about specific risks or alternatives to the procedure, or the patient has a bad outcome where one or more risks was not disclosed to the patient. The key issue in this type of claim is whether the patient would still have proceeded forward with the procedure, had they, as a reasonable person, known of the risks of the procedure. If the answer is no, then there is likely a basis for a claim. If the patient would have gone ahead regardless of the risks, even though the physician may not have told them of that specific risk, then in all likelihood they would not have a viable basis for such a claim. As you know, each case is fact-specific. Please call an experienced attorney to get an informed answer.

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40 What is Continuous Treatment?

Q: What is “continuous treatment” and why is it important to my case?

A: This is a legal term used to describe the length of time you have continued to treat with your doctor. In many cases, after a patient has been injured by a doctor, patients unwit-tingly continue to see their doctor for follow-up care related to the injuries that the doctor caused. Generally, the time in which you have to start your lawsuit starts from the date of the malpractice. However, in some cases, the time in which you might be able to start your case could run from the date of the last treatment in which you were treated by the same doctor (or hospital) for the same condition or complaint as you originally went to him about. The specific facts must be investigated, as well as the specific timing of visits. It is also very important to know whether the doctor or their office initiated the visit, or whether it was the patient who requested the appointment. This will help to establish whether there was in fact “continuous treatment.”

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Section 4

Different Cases

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41 Slip & Fall on Snow or Ice: Can You Get Money for Your Injuries?

Snow & Ice Injuries

Winter time inevitably causes people to slip on snow and ice. They don’t wear the right shoes or boots, the driveway wasn’t plowed and the street wasn’t sanded. If you fall and injure yourself while slipping on snow or ice, can you be compensated (get money) for your injuries?

The short answer is maybe. In any snow and ice case we look to see what the condition was like at the time you fell. If it was the middle of a blizzard and nobody had time to clear the parking lot in the middle of the night, it’s not looking good to be able to prove that the owner of the property should have taken steps to clear the lot of snow and ice. The key to proving liability in a snow and ice case is whether the owner of the property knew of a dangerous condition and failed to timely act to correct it. This is called “notice”. If the owner didn’t know about a dangerous condition, how can he be held responsible for your injuries? He won’t be. But, what if the icy condi-tion existed for a few days or weeks? Everybody who lived nearby always saw the ice and nobody ever salted or sanded the ice. In that situation we would argue that the owner of the property knew, or should have known, that there was a dangerous and icy condition on his property.

What if someone actually tells the owner of the property about an icy area of his lot and he doesn’t do anything to fix the problem? Well, as long as nobody gets hurt, he’s avoided a lawsuit. However, if someone does get injured at that location, after someone has specifi-cally notified him of a dangerous condition, and he fails to correct the danger, then in all probability he will be held responsible for failing to prevent injuries at that location.

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Sometimes, the owner hires a snow removal company (a snow plow) to plow the driveway, street, sidewalk or parking lot. In some cases, these snow plow companies don’t do a good job and leave piles of snow in areas where they will melt, re-freeze, and then create sheets of ice throughout the property. If the snow plow or property owner knew that putting all that snow at the top of the hill wasn’t a good location, there are some cases where the owner or snow plow oper-ator will be held responsible for your injuries.

If you fall and are injured during the winter months it is very impor-tant that you do three things:

1.) Look around to see what you slipped on. Take a mental note about the conditions where you fell and the surrounding conditions.

2.) When possible, get photographs of the condition as soon as possible after you fell. This will preserve evidence of what the area looked like when you fell. Make sure you take at least an entire roll of film, from all different angles. Don’t just take a picture of the ice. Look for a street sign, a building, and an address that can also get in the picture. This way you can positively identify the location where you fell, at a later date. If you use a digital camera do not ever make any changes or alterations to your photos when you provide them to your attorney.

3.) If you don’t go to the hospital or a doctor immediately, you should report your accident to the owner of the property to put them on notice of your accident.

Injuries from slipping on ice or snow can be very serious and can include broken bones and the need for surgery. Take time to think whether this could have been prevented. Or was your fall simple carelessness that could have been prevented if you were paying atten-tion to where you were walking? The answer is sometimes difficult to answer. That’s why an experienced injury attorney can help guide you and advise you about your legal rights. The longer you wait to speak

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to an attorney, the greater chance you have of forgetting important information that could help you in a potential case.

The best advice is to be careful while outside and to make sure you’re wearing the right winter gear. But even that doesn’t always prevent an injury.

Ice skating injuries, they happen. It’s a fact. Even to experienced skaters. You will always see big signs posted at every entrance to every skating rink in New York that ice skating is a dangerous sport. The warning will say that you “Skate at your own risk.” That is the same as saying buyer beware!

We know that many sports are inherently dangerous, yet millions of people aren’t going to stop participating in dangerous sports just because of the obvious dangers. Just the other day, Newsday reported on a tragedy involving a 15 year old girl who died while snow tubing at Killington Ski Resort in Vermont. Importantly, this girl and her teenage friends were on a skiing slope that had already closed for the day. The incident happened at 7:00 p.m., and the key fact here is that the slopes closed at 4:00 p.m. There were signs posted all across the ski resort that slopes were off limits after 4:00 p.m. because of snow making and snow grooming activities. Also, there was no snow tubing allowed on any ski slope.

What happened? The girl could not control the snow tube and went off the trail, tragically causing her death. Is the resort responsible for her untimely death? In all likelihood the answer is no. She engaged in a dangerous activity, in a prohibited and restricted area. The snow tube is uncontrollable- which is what makes it so much fun. However, snow tubes are typically used in special areas or chutes designed to keep the tubes in a runway style area, so that there is no way to run off a trail.

Many people have tried to sue skating rinks and ski resorts for inju-ries they suffered while engaging in these fun filled but dangerous activities. Most have failed. On occasion there have been successes, but those are the exceptions. Where you actively choose to engage

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in a dangerous activity and disregard the hazards and dangers asso-ciated with that activity (rock climbing, water skiing, sky diving), you run the risk of injury and the chance that you will not be able to bring a successful lawsuit for your injuries. But remember, every case is different. Let an experienced injury attorney evaluate your own case.

Be careful out there this winter, and have fun while you can.

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42 Breast Cancer: “The Doctor Delayed My Diagnosis, Do I Have a Case?

“Doctor, I have this lump in my right breast... right here. I think it’s grown over the last month. What do you think?”

This is usually how a case starts. How it finishes depends on many factors. Here’s what I mean...

When a patient has a specific complaint, the doctor is obligated to examine the lump and make a clinical evaluation. The doctor should have already taken a thorough history to learn whether any blood relative had any type of cancer- especially breast cancer. It will be important for the doctor to know whether your breasts are usually cystic (have many lumps naturally) or whether this is an isolated and new finding. It is also important to know if you’re also having your period, as that can sometimes exacerbate normally cystic breasts.

There are many options available to the doctor at this point. They can simply tell you to watch and observe the lump to see if it gets bigger. They can refer you to a breast surgeon for an evaluation and possible needle biopsy or a lumpectomy. They can send you for x-rays, a sonogram and/or a mammogram. Depending upon what choices the doctor makes will determine what your next step will be as far as evaluating your lump.

Many women will choose to immediately see the breast surgeon. The breast surgeon will perform a physical examination of your breasts while sitting up, and also lying down. In some cases the surgeon will want to try and put a needle into your breast, in the area where your lump is. This will help the surgeon determine if the lump is solid, is a fluid-filled cyst, or something else entirely. Depending upon where the needle is placed a surgeon can sometimes get tissue or fluid to send to a lab for evaluation under a microscope.

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The bottom line here is that if you feel a lump in your breast, do not let a doctor dismiss it without getting tests to evaluate it, and it might be wise to get a second opinion. Certainly if the lump gets bigger, you must follow up with a specialist in order to properly evaluate it. Keep in mind that certain tests, such as sonograms and mammo-grams have something called “false-positives” and “false-negatives.” This means that no test is perfect and even though a mammogram shows your breast as “normal” there is a slight possibility that the reading is wrong. That’s why you must be extremely vigilant about the lump and must insist on following it up with your doctor and possibly a breast surgeon as well.

The most common kind of mistakes and errors that medical malprac-tice lawyers see in breast cancer cases is the failure to recognize a tumor on an x-ray or mammogram. The failure by a doctor to recog-nize an obvious tumor represents a departure from good medical practice. The question then becomes how has the delay in diagnosis affected your injuries? Here’s what I mean.

As a result of the delay has your cancer spread to other parts of your body? If it had been timely diagnosed, was it small and isolated to a small part of your breast?

Now when your cancer has finally been detected, has it spread beyond your breast and entered your lymph nodes? The cancer doctors have different terms used to “Stage” a cancer. Stage 1, 2, 3, 4. Stage 1 is usually a localized cancer that is amenable to getting rid of it entirely with surgery. Stage 4 typically means it has spread throughout your body and your treatment options, if any, may be extremely limited.

From a lawyer’s standpoint, it is important to know what addi-tional injuries you suffered as a result of any delay in diagnosis. In other words, how would your condition have been different today, compared to what it is now, had you been properly and timely diag-nosed. That’s the key to beginning to establish your damages in a potential case.

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43 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 colos-tomy 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 colonscopy.

“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 recog-nize 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 colonos-copy. 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

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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 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.

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44 Can I Bring a Lawsuit Against My Plastic Surgeon if He Destroyed My Breasts?

I receive many calls from women who have breast reduction or augmentation surgery who 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 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 consid-ered 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

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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 patients who have revisions are some-times 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 doctor’s 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 perma-nent, are we permitted to go forward and prosecute a case on your behalf.

If any one of those three elements noted above are 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.

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45 Car Accidents in NY: 7 Reasons You May Not Want to Sue

In New York, if you were involved in a car accident, there’s an excel-lent chance that you would bring a lawsuit against the driver of the car that hit you. In this article, I explain 7 reasons why you may not want to bring a lawsuit if you were involved in a car accident:

1. You were not injured.

You’d think this was self-explanatory, but it’s not. There are two types of claims you can bring in an auto accident. The first is a property damage claim for the damage to your car. The second is a personal injury claim which would be for the physical injuries you suffered, the medical expenses, your past and future pain and suffering, as well as lost wages and potential lost future wages.

2. Your friends will think you are greedy.

Some people feel that the only reason to bring a lawsuit is because you are looking to “make money” off the system, and why not? It’s only the insurance company’s money. Other people don’t look at their injuries as a way to make money. They’d rather go to work and earn money the “old fashioned” way by working for their income.

During a trial, a good trial lawyer can make the following argument when asking a jury to understand what his client went through and why he’s entitled to compensation: Let’s suppose that this morning Mr. Jones put an ad in the newspaper and said he’d give away One Million Dollars, for free! Just show up at his door, and the first one there will get it. No questions asked. How many people do you think would sprint out their door and race to be the first one in line? Thousands of people would try. But... what if you placed certain conditions on getting that $1,000,000 dollars?

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Let’s say now that the ad said that in order to get that one million dollars you had to be involved in a horrific head-on collision that ejected you from the car and you landed 30 feet from the car. How many people do you think would still be waiting on that line? A lot less than started. But what if the ad went further, and said that before you could get that money, you not only had to be involved in this terrible car accident, but you had to have suffered a fractured pelvis, shattered both of your femurs (the largest bone in your body- they’re the thigh bones) had to be placed on a respirator for 20 days, inten-tionally put into a medically-induced coma for 10 days, and had major reconstructive surgery to fix the broken bones. How many people do you think would still be standing on that line? Not very many, but maybe one or two very desperate souls.

What if we added a few more conditions on to that advertisement, so that in order to get that “Free” million dollars, you had to learn how to walk all over again, you had to spend three months in a rehabilita-tion center, and had to have two more surgeries to fix complications and infections that happened from the original surgery. Then on top of that, explain that their daily activities would have to be forever changed and they could not play sports, run, jog, ski, play basket-ball, football and everything they liked to do before the accident. How many people do you think would still be standing at the door seeking that “Free” million dollars? Nobody.

That’s what a good trial attorney tries to explain to a jury in a signifi-cant accident case. The money will help pay for medical bills and modifications to their home to ambulate. It will provide a safety net for the injured victim and their family. Anyone who thinks a seri-ously injured car accident victim is suing because they’re greedy should read this article. In addition, they should spend at least one day in a victim’s home watching them struggle with daily activities like tying their shoes and buttoning their shirt. Only by showing someone the tremendous hardships you face will they realize how important it is to obtain full compensation for your injuries.

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3. What good will the money do you?

This is a famous defense attorney line. This is used during nego-tiations, and also used during summations. “Plaintiff ’s attorney is asking for millions for his client. Think about this... what good will the money do him? He can’t use it. His medical expenses... sure, give it to him, he deserves it. But the millions he’s asking for? No way. His injuries prevent him from going out and spending such huge exorbi-tant amounts of money.

The reply to this argument is not what you think. As much as you’d like to shake some sense into the defense lawyer, this is a better approach. “Look, your client created the problems that my client suffered. He didn’t do anything to create this accident or his inju-ries that stem from this accident. My client has incurred medical expenses in the thousands of dollars. Who is going to pay for those expenses? Should he, or his insurance company, have to foot the bill for your client’s wrongdoing? I don’t think so. That only covers his medical expenses in the past. What about future medical expenses that he’s sure to have? You’ve got to cover that as well.

This doesn’t even begin to address the compensation that he’s enti-tled to for the suffering he’s endured from the time of the accident until today. Don’t forget about the future suffering he’ll have from his injuries and medical care he’s going to need to treat his ongoing problems. This is known as past and future pain and suffering. Thankfully for injured victims in New York, there is no cap on pain and suffering awards.

To answer the question above... it will do a lot for the injured victim and their family.

4. You don’t know a good New York lawyer anyway.

If you don’t know a good lawyer, you should keep looking. There are many ways to find a good attorney.

Importantly, you want an attorney who has handled many cases

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just like yours. You want someone with experience. The question of whether you want a big New York City firm, a small firm, or even a solo practitioner is simply a matter of personal preference. Keep in mind that whomever you choose, you must feel comfortable with. Always ask “Who is going to be handling your case day to day?” “Who will be appearing on your conferences with the Court?” “Who will appear at your deposition, and the depositions of the people you have sued?” “Who will be trying my case if it goes to trial?”

If you don’t mind many different attorneys handling different parts of your case, then you should have no problem going to a large firm. If you want one attorney to handle your case from start to finish, then you should seek an experienced solo practitioner.

5. The chances of you recovering money are not good unless you have a significant injury.

That may be true. If you have a minor injury, then your compensation will likely be minimal. If your injuries are significant, the compen-sation you may be entitled to may also be significant. Each case will differ. The answer also depends on where your case is venued, that is which court it’s in. Is it in the Bronx or Brooklyn? Or is it in Westchester or upstate Albany?

If you don’t have any injury, or the injury was minimal, your case may be dismissed without ever getting to trial. Your injuries may not meet the “threshold” that is needed to continue your case. There are specific guidelines relating to the type of injury you must have to bring a case in the Supreme Court of the State of New York- which by the way, is the trial-level court.

6. The driver of the car that hit you will not like you if you sue him.

My response is “So what?” Why would you care about what the other driver thought? You shouldn’t. The other driver was careless and his carelessness caused you permanent injury. If you want to live your life worried about what other people think, then you should re-think what you do on a daily basis.

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A decision to sue someone isn’t about whether you’re popular or whether someone will or will not like you. It’s about your funda-mental right to be repaid something that is owed to you. When a wrongdoer causes harm, he becomes obligated to pay you for your harm and the disability that he has caused. That’s an obligation we as a society recognize, not just in New York, but throughout the United States.

7. Your picture might appear in the newspaper.

In most accident cases in New York your picture will not appear in the newspaper. Most cases are not deemed “newsworthy” by the local newspapers. They’re a common occurrence and unless it’s an extremely slow news day, or there’s something unusual about your particular case, it is unlikely your picture or your case will get any mention in the newspapers.

Conclusion

After reading this article you should have a better understanding of whether you should or should not bring a lawsuit if you’ve been injured in a car accident in the State of New York.

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46 “What Color Was the Light?” asked the Police Officer

The police officer will usually ask the victim of a car accident, “What color was the traffic light when you were going through the intersection?”

If an officer isn’t on the scene, an ambulance attendant might ask, or even a good Samaritan checking to see if you’re okay. Most people want to know, even at the scene of a gruesome accident, who went through the red light. They want to know who is culpable for causing such carnage and destruction. It’s a bizarre sense of curiosity and morbid knowledge knowing that had the driver not gone through the red light, this terrible accident would never have happened.

In addition to those people at the scene of the accident, your insur-ance company wants to know what was the color of the light. Your lawyer wants to know. Your spouse and family members want to know who, if anyone, is to blame for your awful disabling injuries.

Sometimes you may not have a memory of the moments leading up to the accident scene. Witness observations are crucial to identifying who was at fault. Other times you might be incoherent, or in shock and unable to tell responding people what happened. Then other times you might be unconscious, or worse, dead.

Why is the color of the light so important?

In virtually every town, village and city in the State of New York, there are specific rules that govern the use of a car and how people are supposed to operate their cars on the roads. This is commonly known as “The rules of the road”. There are regulations, codes, guide-lines, laws, statutes and other requirements that must be adhered to when driving a car in New York. Your failure to comply with motor vehicle laws can result in fines, sanctions & penalties. Even worse, is that in a civil lawsuit, where someone is seeking compensation

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for harm you caused because you violated a motor vehicle law, your violation of the law can result in an award of damages against you and your insurance company.

Interestingly, most people who observe the color of the light as they are going through it, firmly believe that their observation is correct. However, in many studies done to evaluate visual perception, the conclusions reached are not very comforting. Witnesses often have conflicting opinions about the color of the light. What happens when the light changes as you are in the intersection? What happens if the light was yellow when you entered the crosswalk, but as you travelled through the middle of the intersection, the light changed to red?

Where witnesses to the accident confirm your version of what color the light was, you stand a much better chance of succeeding on liability. Where witnesses contradict what you claim you saw, you have an uphill battle convincing not only the other driver’s insurance company and their attorney, but a jury as well.

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47 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 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 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 conse-quences 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. Babies that have experienced decreased oxygen during the birth process tend to have significant developmental delays as well as other significant medical problems.

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.

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“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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48 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 malprac-tice case, a New York attorney must be able to prove not only that there was wrongdoing, but 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 injec-tion 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

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your injuries. If you suffered minimal injury, again, it will be diffi-cult 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.

To find out more, contact an experienced New York malprac-tice attorney who handles dental and medical malpractice cases—immediately.

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49In Case of Death - Part 1.

How to Find Your Way After Your Loved One has Died.

How to find a New York lawyer & learn whether you have a case... It happens in the blink of an eye. One moment they’re there... the next, forever taken from us. The emotions that flood over ourselves and our families range from sadness to anger and hatred. Some surviving family members revert into a shell. Others use the death as a call to action. However it affects you and your family, it’s never easy to deal with. This series of articles helps you understand what your legal choices are, and also how to choose a lawyer that can best help you and your family.

Important papers you need to find.

Q: If a family member has died and I need to come to you for legal advice, what documents do I need to bring to our meeting?

A: First, it’s never easy when a loved one has died. It’s even more difficult if you believe that their death was caused by some-one’s wrongdoing or carelessness. Second, the following documents will help me to proceed with an investigation into your case:

1. An original death certificate (the funeral home will be able to provide this). Also, ask the funeral home for a bill marked “paid in full.”

2. Let your lawyer know whether an autopsy has been performed. If so, he can arrange to obtain a copy of it from the medical examiner’s office.

3. A list (handwritten is just fine-it doesn’t need to be typed) of the names and addresses of any doctor your loved one saw within the last two years.

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4. A list of the immediate family members, their addresses, together with their ages, dates of birth and social secu-rity numbers.

5. If your loved one had a will, please bring a copy with you. Your lawyer needs this to know who the executor or executrix (female executor) is.

6. If your loved one did not have a will, one of the close family members (you’ll choose) will need to be named as the administrator of the estate. This simply means that the person will stand in place of your loved one. He or she will have their name put on the litigation docu-ments, but importantly, that person does not receive any different or greater share of the recovery simply because they are the administrator or executor.

7. If you have copies of any medical or police records, bring them.

8. Bring any medical insurance cards, bills and receipts from any health insurance company about the treat-ment your loved one received recently.

9. If your loved one was employed, bring copies of their tax returns and W-2 forms for the last three years.

10. When you meet with your lawyer, try and bring any family members who have knowledge or informa-tion about the specific events that led to your loved one’s injuries and untimely death. All of these docu-ments assist your attorney in promptly evaluating and processing your matter. Any original documents are returned to you, except for the death certificate. The Surrogate’s Court requires an original death certificate for their file.

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50 In Case of Death - Part 2. So, You Want to Sue...

Q: What is “pecuniary loss”?

A: This is a term used to describe the financial loss that the family has suffered from the death of a family member. If a person were earning $30,000 per year, and they were 35 years old, we could project over the next 30 years how much they could be expected to earn over their working lifetime. In many cases, we use an economist to make these projec-tions. The economist uses tables, guidelines, and generally available statistics to help guide us in determining how much money that person would have likely earned over their lifetime. Naturally, some things can never be measured with absolute certainty. Companies can fold, go bankrupt, people can be fired, and their health can worsen. But on the positive side we also look at raises, bonuses, increased productivity, successes and factor that in as well.

Q: What if the person who died was not earning a living, or was retired? Can we still claim economic loss to our family?

A: Unfortunately, the answer in New York is no. The current law does not permit us to claim that the family suffered a financial loss if they were not bringing in an income. What about social security income? Usually it’s not a significant amount. Considering that most people on social security use their monthly payments for basic necessities such as rent, food, and clothing for themselves. There’s usually not much left over, if anything, to spend on family members or grandchildren.

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Q: Can family members recover for time they’ve been out of work while caring for a family member before they died?

A: The short answer is no. The longer answer is maybe. If it was a spouse, (husband or wife) who cared for their significant other while alive, then we can sometimes bring a claim for loss of services for that limited time period. If the family had to hire and pay someone to do household chores; cook, clean, wash, etc., then we can try and claim those expenses as well.

However, where other family members took days or weeks off from work to help out with family tasks, the law does not really permit us to recover those lost wages. Nor does the law permit us to seek emotional damages for the family’s loss of their loved one. This is the most tragic part of such a claim. The family has been devastated and they cannot recover compensation for their emotional suffering from the death of their loved one. If you want to change this law, write to your congressman and senator. This is the only way this will be changed.

Can you sue your employer?

Q: My husband was a construction worker who slipped off a scaffold at his job site. He broke his neck and died from his injuries. Can I bring a lawsuit against his employer?

A: No, not his employer. You can however bring a lawsuit against the owner of the property, the general contractor and any subcontractor that may have been involved with your husband’s injuries and death.

How much time does our family have to start a lawsuit?

In New York, in a case involving wrongful death, you generally have two years from the date of death within which to start suit. However, beware of this warning- There are many exceptions to this rule!

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The time to file a lawsuit may be less if you need to sue a city, state, or municipality or a city or state hospital.

In those cases, your time to file a claim (which is different than filing a lawsuit) is generally 90 days from the date of the incident. You would then have only one year and 90 days within which to start a lawsuit.

The bottom line is that even if you suspect you might want or need to bring a lawsuit for your loved one’s untimely death, speak to an experienced New York lawyer immediately so you don’t lose your precious legal rights. Once those rights are gone, it’s difficult if not impossible to get them back.

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51 In Case of Death - Part 3. Warning!

WARNING! Do not rely on anyone except an attorney to guide you when determining how much time you have to file a lawsuit.

Why do I say this? Because on occasion, a client will call me, or come into my office after the time to file suit has lapsed and say “My friend said I have 4 years to file suit...” “My mother’s girlfriend had a case, and she said I have until...”

Once the time to file a lawsuit has lapsed, there is nothing anyone can do to start a case for your loss. That is why it’s so important to get good legal advice soon after the incident has happened.

Q: Why do we need an economist for my mom’s death case?

A: A economist is an expert who studies the economy and understands what happens to money over time. In many cases where a loved one was working, we can show that had they lived for the rest of their natural life, they would be expected to earn at least the same amount of money they were earning at the time of their death. An economist brings his/her expertise to the case by showing that those earnings over time, would be a significant amount of money that your family has now been deprived of.

The economist can also make projections, such as bonuses, bene-fits, increases in salary, to show what your mom could very likely have earned if she lived a natural life. Having an economist gives the jury a handle on the type of money your family lost. Without these calculations and testimony, the jury would literally have to guess and speculate—which is simply not permitted and would not be allowed at trial.

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If your mom was not working, and was instead a “stay-at-home” mom, the economist is also useful in calculating the value of her services to your dad and the rest of your family. Now that she’s no longer around, you might have to hire a nanny, or house-cleaner to do some of the things that mom used to do all the time. An econo-mist is needed to support this type of claim.

Q: What is an autopsy, and why would it help a potential case?

A: An autopsy is an in-depth examination of a dead person, by a doctor. The doctor who performs the examination is usually a pathologist who looks to find the precise cause of death. They do this by looking at all of the internal organs, including the brain, heart, lungs, liver, kidneys, and spleen. Each area of the body is examined for evidence that contrib-uted or caused that person’s death.

In a case involving claims of wrongful death (where a person or family has claimed that their loved one died because of someone else’s carelessness) having an autopsy is crucial to proving your case. While an autopsy is vital to support such a case, it can also shed light on the possibility that your loved one did not die as a result of wrongdoing.

It’s a double edged sword. The autopsy could help your claim by showing that your loved one died from wrongdoing, or it could show that the treatment or actions that happened before death did not play a role in causing the death.

There are some religions that prohibit autopsies, and in those cases, it becomes extremely difficult to prove, with a reasonable degree of probability, that wrongdoing (such as malpractice) caused their death. In those cases, we must rely on other evidence to support our claim.

I am often called upon by grieving families to ask whether an autopsy should be performed on their loved one. As in life, there are no set

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answers to this crucial question. Emotions run high following a family death; questions about improper treatment may cloud a fami-ly’s judgment; uncertainty about the cause of death may also add to a feeling of helplessness.

The most common case where an autopsy is performed is in a trau-matic accident. In murder or homicide cases autopsies are always performed as the police want to know exactly what caused the person’s death. They can usually use this information to track the perpetrator.

In New York, if a person dies suspiciously, or within 24 hours of having had surgery, an autopsy will usually be performed to deter-mine the precise cause of death.

For example, I had a case where a man on dialysis came home one day, and was found later by his family in his bathroom having bled to death. The walls were covered with blood and there were open bandages all over the floor. An autopsy was able to confirm that the man’s shunt (the place where the dialysis needle was put into his arm each session) had gotten infected and progressively larger with each session. Nobody recognized that he was starting to bleed when he left the dialysis center. Unfortunately, when he arrived home, the shunt ruptured and since it was connected to an artery, blood shot out all over the bathroom, creating what looked like a murder scene. It was only through the autopsy that we were able to prove our case successfully.

Autopsies are usually performed by the County Medical Examiner. In the five boroughs of New York City, Brooklyn, Bronx, Queens, Manhattan and Staten Island, autopsies are performed by the New York City Medical Examiner’s Office. In Nassau, it’s the Nassau County Medical Examiner, and in Suffolk, it’s the Suffolk County Medical Examiner.

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52 In Case of Death - Part 4.

Q: Your Loved One’s Died - You Suspect Foul Play. When you’re at the hospital and the emergency room doctor tells you your 50 year-old husband just died after collapsing at work, you want answers.

A: Death - Who said it’s a natural part of life?

Whoever said it might be right, but when you’re at the hospital and the emergency room doctor tells you your 50 year-old husband just died after collapsing at work, you want answers.

An autopsy investigation reveals that your husband had a leaking aortic aneurysm (a weakened blood vessel) that ruptured. You remember that your husband had complained of increasing back pain for the last few weeks, and a visit to his primary care doctor resulted in a prescription only for muscle relaxants. You then learn that if your husband had the aneurysm detected, it could have been treated electively, and he’d have lived a long healthy life. Now you want even more answers.

Doing nothing simply causes the unanswered questions to linger, fester and build steam. Family members often point a finger at those close to the victim. The guilt surfaces rapidly. “Why didn’t you do more to help?” “Why didn’t you make him go to the doctor again?” “Why didn’t you take him to the hospital?”

When a family member dies unrelated to any accident, we all want to know, why? Since we can’t look into a body and determine what was the cause of death, we look to doctors who perform an examination of the body after death. This is called an autopsy. These doctors are called pathologists, or medical examiners.

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The doctor literally opens up and looks inside and investigates. The medical examiner is supposed to look at each of our body systems, circulation (heart, arteries, veins), respiration (lungs, mouth, trachea), renal (kidneys, ureters, urethra)... literally all of our internal organs and our external organs.

By the end of the examination, the doctor reaches conclusions about the cause of death. Since we are a generally litigious society, many medical examiners are mindful of being blunt and pointing fingers at a culprit who may have caused a person’s death. However, in their own subtle way, a medical examiner can and often indicates the precise reason for your loved one’s death.

Once you know why your loved one died, it is often possible to work backwards and review his condition in the weeks and months leading up to his death. Medical records are invaluable, as are doctor visits made close in time to the death. The questions that a good medical malpractice lawyer always wants to know are:

1.) Was there wrongdoing or a misdiagnosis that should have been detected?

2.) Did the wrongdoing or misdiagnosis cause or contribute to the death?

Finally, a good lawyer wants to know if the condition had been detected and treated earlier, would the outcome be different? Would the death have been preventable?

If the answer is “yes” to each of these questions, then it sounds as if you’d have a valid case in the State of New York. How do we know if the answer to each would be “yes”? We have to hire a medical expert to review all of your loved one’s records.

A medical expert needs to put all the pieces of the puzzle together to answer all of your “WHY” questions. Hospital records, doctors visits, interviews with family members, and the autopsy report are all part of the puzzle.

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Sitting around doing nothing solves nothing. Getting answers when your loved one dies is crucial—especially when you suspect foul play or wrongdoing.

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53 In Case of Death - Part 5. Money.

Q: When you settle a death case, how soon can the family obtain the settlement money?

A: The quick answer is soon. The longer answer is, “it depends.”

In a death case, your New York lawyer will have to prepare papers to let the Surrogate’s Court (that’s the court that is responsible for overseeing a person’s estate) know what is happening. Your lawyer will have to let them know about the settlement, and has to include many supporting documents showing and explaining why a case has settled for the amount it did.

Some of the supporting papers include:

1. An affidavit from the person who represents the estate (usually a family member),

2. An affirmation from the attorney explaining in detail how and why this settlement is appropriate,

3. An accounting that shows exactly how much money was spent on your case, and what the attorney’s fees are, and what monies are to be distributed,

4. Funeral bills,

5. Liens (a promise to re-pay Medicare or Medicaid, for example),

6. A document called a “Waiver & Consent”, which means that each family member who is entitled to receive a share of the money agrees to the proposed settlement and distribution.

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These are the main documents that must be sent to the Court. Depending upon how quickly your lawyer can prepare them, and send them to the family members for signature and get them returned will determine how quickly your attorney can file them with the Court for approval.

In some cases, a family member might not be able to be located, and this will inevitably delay getting final approval. In other cases, a family member might not agree to the settlement or the way in which we propose to divide the settlement proceeds. In that instance, that family member must object to our papers, and the Court will hold a hearing on this issue. Again, this will delay the final approval of the final settlement.

In addition to the procedure described above, there is a new provision in the Surrogate’s law that allows the attorney to apply to the Trial Court where the case was settled. The attorney asks the Court’s permission to obtain the settlement monies, and if approved, the money is deposited into an interest-bearing escrow account.

From that amount, the attorney’s fee and his expenses can be paid, together with any other immediate expenses that the family members have incurred (such as funeral bills and/or medical bills).

Once that happens, the matter transfers back to the Surrogate’s Court where your lawyer must ask for final approval for distri-bution of the settlement proceeds.

The final answer is that the attorney will process the paperwork as quickly as possible and submit the necessary papers to both the Trial Court and the Surrogate’s Court, assuming there is no delay in getting the papers back from the family members. There is always the possibility that despite the best intentions of the family members and the attorney, a court clerk deems the papers to be inadequate or missing information.

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In that case, additional paperwork must be obtained and completed and again submitted to the Court. Once all papers have been successfully submitted to the Court, the Trial Court has 60 days to either agree or disagree with the settlement. The Surrogate’s Court on the other hand does not have a fixed amount of time within which to provide final approval.

Most surrogate’s courts do make efforts to finalize these matters knowing that family members are expectant and anxious to conclude these legal proceedings.

Once the Surrogate’s Court has approved the settlement, all final closing papers are submitted to the insurance company, and they must make payment within 3 weeks (if they haven’t already made payment, and that money is sitting in an interest-bearing escrow account).

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54 You’re Driving Through an Intersection and the last Thing You Remember is a Loud Crash...

You’re driving through an intersection and the light is green as you enter the intersection. You remember a loud crash, and then waking up in an ambulance. An oxygen mask is on your face, and some stranger with a uniform is looking at you with concern, making notes on their clipboard. Oddly, you can’t feel your hands or feet, nor can you see clearly. You try to talk, but the words only come out as gutteral utterances. Minutes later, you’re being wheeled into a white-walled corridor with lots of people, many of whom are wearing long white lab coats. Your stretcher comes to a stop and you see lots of bright overhead lights with lots of unfamiliar faces peering over you. Your mind tries to figure out where you are and why you’re here.

You start to think about your wife and where your kids are at this moment and try to tell the people in front of you that they should be notified about whatever happened to me. You were on your way to work this morning and was supposed to give a big presentation to the boss. He’s waiting for you, and he’ll be steamed if you’re late. Who is going to pick up the groceries tonight if I can’t do it? What will happen if I can’t get my paycheck tomorrow? Can they bring it to me, wherever I am? How can I pay my bills if I can’t even feel my arms or legs? Damn—what’s going on here? I can barely hear what anyone around me is saying.

Out of the corner of your eye, you see a policeman talking to someone who looks like a doctor. You can’t hear what they’re saying, but one of them is pointing to you with a sad look on their face, and shaking their head. You’re not sure what it means.

The next thing you remember, you wake up in a very quiet, dimly lit room, with a nurse who is doting on you. She is fussing and checking every part of your body. Looking around you see lots of tubes hanging from a pole that appear to end at your body. You hear

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beeping and buzzers, but don’t feel much. You hear a hissing noise from a machine that looks like a pump going up and down. You try to talk but nothing comes out of your mouth. In fact, there’s some-thing in your mouth that seems to prevent you from talking. You try to reach up and pull it out, and the nurse admonishes you and tells you to leave it alone. The next thing you know, the nurse is putting some cloth around your arms to keep them attached to the bed rails- you’re not even sure why she did that.

Over the next few days you begin to see people you actually recog-nize- your wife, your beautiful kids, your brother and your mom. You can’t understand why they’re all standing around you, some crying, some holding your hand. All thoughts of daily life, work and family obligations are temporarily suspended. The feeling in your arms has slowly returned, but you still don’t know why you can’t move your feet. That thing in your mouth is still there, and your hands are still attached to the bed rail.

One morning a serious looking man whispers in your ear that he’s going to take something out, and not to be afraid. “Afraid? Of what? I have nothing to be afraid of,” you think. Moments later a strange-looking tube is in the doctor’s hand that he just pulled out of your mouth, and buzzers and bells are going off. You have this strange sensation that something’s stopped working, and you feel yourself starting to pass out, not realizing that you stopped breathing.

After two grueling months in the hospital, you finally come to your senses. The doctors tell you that you’re paralyzed from the waist down, and will probably never be able to walk again. “How is this possible?” you ask. “Well, do you remember the car accident you were in?” asks the doctor. “No. What car accident?” you ask. “Two months ago, while driving through the intersection with a green light, a driver going the other way, blew through a red light, into the intersection and smashed your door. It took 15 firefighters to pry you out of your car with massive tools that ripped apart the car. You were then rushed to this hospital, and you’ve been here ever since,” the doctor replied. “But my family, my job, my life? What about my kids? What am I going to do now to support my family? How

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are they going to survive with me in this condition? What the heck happened?”

This scenario is played out all too often in New York and across the country. The careless perpetrators don’t realize the agonizing and devastating effects car accidents can have- not just to the victims, but to the victim’s family as well. The injuries, the recuperation (if there is one), the shattered lives, the lost income, the future disability and destroyed future are all part of the terrible process. What is a victim and their family to do to survive in today’s world?

The only rational thing is to seek out a New York attorney who has experience handling significant car accident cases. You need someone who can conduct a thorough investigation to learn how the accident happened and why. You need to find out who is respon-sible for this tragedy. The person who caused this accident must be held accountable for their actions. Our society demands that people take responsibility for their actions. An experienced lawyer will help guide you and your family through the tough times ahead, and help you understand the legal process. Only by understanding the legal process can you make intelligent and informed decisions about your options. Hopefully with strength and good legal guidance, you can surmount these seemingly insurmountable obstacles.

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55How Does a Doctor “Fail to Diagnose a

Heart Attack?”

In one of two ways:

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 basi-cally 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 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”.

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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 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 were 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.

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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 devas-tating 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 elec-tive 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.

A heart attack may be preventable. Let your lawyer know what symp-toms, 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 emer-gency 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.

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56 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 mis-shapen toes.

Many foot doctors, known as podiatrists, are more than happy to recommend surgical procedures to get rid of bunions, hammertoes and corns. Some podiatrists fail to inform the patient of significant risks associated with these seemingly “routine” and “simple” proce-dures. 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 unnat-ural 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 change 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? The first line of defense is called “conservative

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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-inflamma-tory medication or a course of steroid injections to reduce inflam-mation 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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57 Do You Really Think Your Doctor Misdiagnosed Your Breast Cancer?

Breast cancer is deadly. Just ask any woman. Evidence of breast cancer clusters are 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?

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?

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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?

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 treat-ment and outcome would have been different.

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58 What is 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 recog-nize 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:

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.

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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.

7. As one of the last efforts, the obstetrican 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.

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59 Failure to Diagnose Ectopic Pregnancy

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.

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 sono-gram 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.

The key question is when does the surgeon intervene before the fallopian tube ruptures? A ruptured ectopic can cause catastrophic

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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 possi-bility 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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60 5 Ways to Know Your Baby Might be Victim of Medical Malpractice

1. Your doctor fails to recognize that your baby is in distress during labor

Most pregnant women who arrive at a hospital are attached to moni-toring devices. These devices, also known as tocolytic monitors, are for the benefit of the doctors and nurses to monitor the baby’s heartbeat and the mother’s contractions. The electronic wave forms that are typically seen on these devices and the hard-copy printout, are commonly referred to as “fetal monitoring strips.” These strips provide crucial information to your doctor about how the baby is doing in the uterus, and how the baby reacts to the stresses of contractions.

When the contractions cause stress to the baby, the baby can react by showing an increase in heart rate. When the stresses to the baby are significant, or when insufficient oxygen is getting to the baby, there are certain signs that become evident on these fetal monitoring strips, that a physician and/or a nurse should be able to recognize and act upon. Decreased fetal movement, abnormal baseline heart rate, incomplete return of the baby’s heart rate to baseline, incon-sistent and abnormal reaction to contractions are just some of the warning signs that should trigger action in your doctor and nurse.

One common scenario is when the labor floor gets busy and neither the nurses nor the doctors are present to see that the baby may be in distress. When fetal distress occurs, the baby is deprived of life-giving oxygen. If prolonged, the baby may suffer irreversible brain damage with permanent life-long disability.

2. Your doctor has to perform an emergency c-section

The only reason a doctor will perform an emergency c-section is when the baby is in extreme distress, and the baby needs to be

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removed immediately. The question becomes: Why is the baby in so much distress? This is not an easy question to answer. There could be many reasons for fetal distress. In some cases it may be from failure to recognize the distress. In other cases, it may be the uterus is tearing apart and the baby is not getting enough oxygen. There might be a tight cord around the baby’s neck causing a decreased heart rate.

The important thing to remember is that when you have an emer-gency c-section, make sure you or your spouse ask why. The response will typically be that the baby is having a problem and needs to come out now. Then ask what the problem is and whether it was present before.

Your attorney will need to go through your medical records and your baby’s records carefully to see what problems you may have been experiencing during your labor. The records will also have be thor-oughly reviewed by a qualified and board certified obstetrician to see if there was evidence of malpractice and whether that malpractice (otherwise known as a departure from good and accepted medical care) was a substantial factor in causing and producing your baby’s injuries.

3. Your baby is not crying when born

There may be different reasons for why the baby is not crying at the time of birth. Typically, a normally healthy child cries at the time of delivery. This accomplishes two important things: (1) The baby’s lungs expand, and (2) It allows the baby to breathe on its own imme-diately at birth. When there is no cry at birth, the baby’s cry reflex may be stifled, diminished, or absent. This may be from a brain injury from lack of oxygen, or some other condition that needs immediate and emergent medical intervention.

A failure to cry at birth could signify an airway obstruction, a brain injury, lack of oxygen or a host of other medical problems- each one needing immediate attention. Hopefully, with a little aggressive rubbing and stimulation, the baby’s cry reflex kicks into action and the baby “pinks up” and looks healthy.

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4. Your baby isn’t moving one of its arms at birth

The failure of your baby to move one of its arms at birth could indi-cate that the nerve that controls arm movement may have been trau-matized or injured. This nerve is commonly known as the brachial plexus nerve. Damage to this nerve during a delivery can result in a condition known as “Erb’s palsy” or “Klumpke’s palsy.”

An injury to the baby’s arm could be transient, meaning that it’s a temporary thing, or it could be more significant and have perma-nent repercussions. This type of injury can occur with a condition known as “shoulder dystocia.” This is a term doctors use to describe the baby’s shoulders becoming stuck in the birth canal. When that happens, there are specific obstetrical maneuvers the doctors should use to help the baby out, without having to pull on the stuck arm or shoulder.

Sometimes, when the maneuvers are not done properly, or not done at all, injury to the baby’s arm can result in significant permanent damage.

5. Your baby has breathing difficulties.

Breathing difficulties can result from prematurity, where your baby is born too early. It can also result from insufficient oxygen during birth. The exact cause of why your baby may have breathing prob-lems requires intensive investigation.

These tips are provided to make you a better and more informed consumer of your own health and your family’s health. As always, any questions concerning the possibility that you might be a victim of improper medical care should be investigated with an experienced medical malpractice lawyer immediately.

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61 Failure to Diagnose Lung Cancer: The 10 Most Important Things Your Lawyer Needs to Know

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 environment, and our work envi-ronments 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 physi-cian, 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, espe-cially 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?

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7. Did you ask your treating cancer specialist (an oncolo-gist) 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 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.

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62 What Does it Mean if a Doctor is Board Certified

It means they have completed a training program after going to medical school, and they have taken certification examinations to determine their proficiency in a particular specialty of medicine.

Generally in the United States, doctors go to medical school for 4 years. After medical school, they will then go on for further post-graduate training at a hospital. This is known as an internship/residency. The internship is their 1st year of training after medical school. After that 1st year, many hospitals consider the doctors to be in their residency. [This term comes from when doctors had to live on the hospital campus and literally be available day or night]. The length of a residency varies from 3 years up to 7 years depending on the specialty. During a doctor’s internship & residency, they are employees of the hospital, and are [supposed to be] working under the supervision of an attending [senior] physician. In theory it sounds nice, but it doesn’t always work in reality- especially in large munic-ipal hospitals where the volume of patients can be overwhelming.

After the doctor completes their accredited internship/residency, then they go out into the “real” world and start practicing medi-cine- either in a group practice, a solo practice, or with a hospital. In many specialties, the doctor must complete 2 years of practice (called clinical practice) before becoming eligible to take their board certification exam.

A board certification exam is a national exam, given to doctors in a specialty to test their knowledge and experience. If a doctor fails their board exam, they can retake it at a later date. Interestingly, they can continue to practice medicine in New York, without being board certified.

As long as the doctor is licensed to practice medicine, they can practice anywhere they choose. A doctor does not need to be board

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certified to practice medicine in New York. As a patient seeking medical services, you should ask your doctor whether they are board certified, because this establishes the basic minimum standards that the doctor must meet before being able to say that they are “board certified”. If your doctor has not passed his boards, then you know that there was some deficiency with his/her ability to pass the exam.

WARNING! There are good doctors who are not board certified who are practicing medicine in New York. Likewise, there are board certi-fied doctors who may not be good doctors. Just because someone is board certified does not mean that they were not careless at a given point in time, nor does it mean that they are not responsible for inju-ries they may have caused you.

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63 How to Become a Medical Malpractice Lawyer in New York

There’s an old joke that asks “How do you get to Carnegie Hall?” The answer is “Practice.” The same can be said for becoming a medical malpractice lawyer in New York.

My first boss, a well-known trial attorney in New York, told me one day after an exhausting and productive day, that trial lawyers are not born great trial lawyers. Rather, they must practice their trade day in and day out. Only through experience and practice can one become a truly good lawyer.

Becoming a lawyer

In order to become a lawyer in New York, you must attend four years of college. You then must take the LSAT (law school admission test) and apply for admission to law school. Law school is usually a three year program, and once you finish school- you must take the New York State Bar Exam. This is a two day exam that tests your knowl-edge of general and specific areas of law. Once you pass the bar exam, you must pass an interview with the character and fitness committee in the County in which you live. Once you have passed the interview you will be permitted to practice law in the State of New York.

Gaining experience

Most attorneys will go to work for a law firm to gain experience, and after a few years, move to a different firm. Some will open their own law firms, and some will remain where they started. One of the best ways to gain experience in medical malpractice law in New York is to work in a defense litigation firm that handles medical malprac-tice defense. There you will learn to handle the file, deal with paper-work, attend court conferences, deal with clients, take depositions, and if you’re lucky, assist senior attorneys with trials. In years past, the younger associates at such defense firms could easily count on

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starting their own trials within one to two years of passing the bar. However, with malpractice cases being so complex, and physicians and insurance companies being weary of the young novice attorney representing such significant matters, it’s unlikely that you will be handling your own trial until you are either a partner, or have many years of experience under your belt- even if you are the smartest attorney to come out of your class.

Medical malpractice law

Medical malpractice law is a sub-specialty of tort law- also known as personal injury law. The only way to become good at it is to gain experience by practice and guidance with a senior trial lawyer who handles these cases on a day to day basis. Not only do you need to learn the law specific to medical malpractice issues, but you also have to become somewhat of an expert on the medicine involved in the case.

Learning the medicine occurs by reading medical literature, medical textbooks, speaking with physicians, consulting with your medical experts, and treating doctors. Learning how to apply that knowledge to your case is what takes time and experience. Learning how to cross-examine a doctor at a deposition or question him skillfully at trial is what separates the good attorney from the excellent attorney.

Contrary to what we see on television, the key to being a good trial attorney who handles medical malpractice cases is preparation. Preparation of the medicine, preparation of your records, exhibits, your clients, and your experts; in a word: Preparation. You must know your case better than your own client does. You must educate the Court about your case, the law involved specifically in your case, and must convey your knowledge to the jury in a way that makes your case more believable than your adversary’s case.

My own experience

In my daily practice, I truly enjoy handling medical malpractice cases. I enjoy speaking with potential clients who call to see whether

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they have valid cases that warrant investigating and prosecuting. The hardest part of my job is telling a potential client that I cannot accept their case. When that happens the natural question is “Why can’t you take my case?” The answer to that question can be simple or complex depending on the type of case they’re calling about.

Being able to help victims of medical malpractice is always rewarding, as many of these victims cannot help themselves and need legal help with rebuilding their lives, their finances and their frail bodies.

For those who call for tort reform, keep in mind that there are many instances of valid malpractice cases here in New York that so few contrarians even wish to discuss. Rather, they want to focus on a few bad apples who bring cases that are questionable. Instead of focusing on a few bad apples, keep your mind focused on what can be done to prevent malpractice from happening, and once it does happen, how to properly and fully compensate the injured victim.

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64 Future Medical Expenses: Who Pays? Not the Doctor

The New York Post reported that the State Assembly Majority announced yesterday that it’s considering a dramatic increase in state personal-income taxes that will come down hardest on New York City residents and the key industries that are the engine for economic growth across the state. As an alternative there have been suggestions that reforms to the medical-malpractice law could save hundreds of millions in health-care expenditures.

It has also been reported that the Governor’s medical malpractice task force, spearheaded by Eric Dinallo, Superintendant of Insurance, will recommend that victims of medical malpractice be prevented from obtaining compensation for their future medical expenses. The suggestion has been floated that a “global compensation fund” be set up funneling victims into a Medicaid-like, or a workers-compensa-tion like fund to pay for a victim’s ongoing medical care.

Such a suggestion is outrageous for the victims of medical neglect. Putting aside the drawbacks that already exist in medicaid-like programs and worker’s compensation programs, an injured victim will be forced to accept medical care from only those physicians and hospitals that participate in the government program. What this really means is that the State will look to pay the least to these doctors, while requiring all victims get their treatment from these doctors.

Query: Why should the State have the ability to dictate where an injured victim gets the best medical care possible? Shouldn’t an injured victim, harmed through no fault of his own, have the ability to get the best possible medical care, regardless of the cost?

Who is the government to say that a crippled human being, disabled for life, because of a physician’s neglect can only get treated by Dr. “X” in Brooklyn. What if that patient wants to go to the best surgeon

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in the country, and that doctor is located in Manhattan? Shouldn’t the patient decide what treatment is best for him? Aren’t we, as free people, entitled to the right to decide how and where we receive medical treatment? Remember, compensation is a debt that must be repaid by the wrongdoer. If the wrongdoing physician is no longer required to pay for future medical expenses, hasn’t the State given a “Freebie” or a “Pass” to the doctor for the harm that he caused? He no longer has to worry about paying anything for any future medical care his victim has suffered. That’s amazing. What’s next? The legisla-ture deciding that doctor’s have immunity from paying any compen-sation for the harm they cause?

This isn’t like a health insurance company who says that you can only go to our “in-network” doctors. This is the government saying, “We’ve set up this program, and if you need ongoing medical care, you must use our program and our affiliated doctors.” Is this fair to the injured victim?

By the way... who do you think is going to have to pay for this huge global medical fund to pay for all these injured victims who need ongoing medical treatment? You. Me. Your neighbors. The residents of the State of New York- our taxes will rise. But what about the medical malpractice insurance company executives who are claiming that their companies don’t have enough money to pay verdicts and settlements against their insured doctors? Is their compensation diminishing? Let’s instead put the burden of paying ongoing medical care where it belongs... with the wrongdoer. And who insures the wrongdoer? The doctor’s medical malpractice insurance company. So what’s the problem? The problem is really a “red herring” because it shifts the real financial issue away from the insurance companies and back to the injured victims who are left to flounder and struggle for themselves. The attempt to reform a requirement for a wrong-doer to compensate his victim and make the State pay for it is simply unfair and should not be tolerated as a society.

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65 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 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 some-thing 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 not to turn or twist suddenly. One wrong move and the pain returns.

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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 can tolerate chronic pain, we can accept acute pain, 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 experi-enced. 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 sympa-thize with that type of pain. Why? Because everyone has had that experience. They know what it feels like. They know that the injec-tion 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 experi-ence 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 to become constipated for long periods of time. People can become addicted to pain medi-cations 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

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ask a jury to award compensation for what this person will experi-ence 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- hope-fully you will never experience it, but at least now, you will have a greater understanding of what an injured victim has gone through.

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice and injury cases for over 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

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66 Don’t Judges Know Not to Give Gifts to Litigants?

Decision & Order

In an action to recover damages for medical malpractice, etc., the defendants Orlando Gonzalez and Orlando Gonzalez, M.D. P.C., appeal, and the defendant St. Vincent’s Catholic Medical Center of New York separately appeals, from a judgment of the Supreme Court, Kings County (Bayne, J.), dated May 17, 2006, which, (a) upon a jury verdict on the issue of liability, (b) upon a jury verdict on the issue of damages awarding the infant plaintiff the sums of $50,000 for future medical care, $40,000 for future medical equipment, $40,000 for future physical therapy, $40,000 for future occupational therapy, $40,000 for future psychological therapy, $40,000 for future aide service, $250,000 for past pain and suffering, and $100,000 for future pain and suffering, (c) upon an order of the same court dated February 28, 2005, granting that branch of the plaintiffs’ motion which was to correct an error in reporting the jury verdict on the issue of damages to the extent of directing a hearing on the issue of whether the jurors made a ministerial error in recording the verdict, (d) upon an order of the same court dated March 11, 2005, which, after the hearing, granted that branch of the plaintiffs’ motion which was to correct an error in reporting the jury verdict on the issue of damages to reflect the jury’s intent to award the infant plaintiff the sums of $3,300,000 for future medical care, $2,640,000 for future medical equipment, $2,000,000 for future [*2]physical therapy, $2,000,000 for future occupational therapy, $2,320,000 for future psychological therapy, $2,000,000 for future aide service, $250,000 for past pain and suffering, and $6,600,000 for future pain and suffering, and (e) upon an order of the same court dated July 22, 2005, denying those branches of the defendants’ separate motions which were, inter alia, to set aside the verdict and for a new trial on the ground that certain improper conduct occurred during the trial, and granting those branches of the defendants’ separate motions which were to set aside the verdict as excessive to the extent of reducing the award of

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damages for future medical care from the sum of $3,300,000 to the sum of $180,226, the award of damages for future medical equipment from the sum of $2,640,000 to the sum of $508,872, and the award of damages for future pain and suffering from the sum of $6,600,00 to the sum of $4,950,000, is in favor of the infant plaintiff and against them in the aggregate sum of $14,209,098.

ORDERED that the judgment is reversed, on the law, those branches of the defendants’ separate motions which were to set aside the verdict and for a new trial on the ground that certain improper conduct occurred during the trial are granted, the order dated June 22, 2005, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a new trial before a different Justice, with costs to abide the event.

“[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” (Habenicht v R.K.O. Theatres, 23 AD2d 378, 379; see Salzano v City of New York, 22 AD2d 656). A trial judge should “ at all times maintain an impartial attitude and exercise a high degree of patience and forebearance’” (Salzano v City of New York, 22 AD2d at 657, quoting Buckley v 2570 Broadway Corp., 12 AD2d 473, 473). A trial judge may not “ so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammeled spirit necessary to effect justice’” (Schaffer v Kurpis, 177 AD2d 379, 379, quoting Karmen Soap Products Co., Inc., v Prusansky & Prusansky, Inc., 11 AD2d 676, 676).

Throughout this lengthy and acrimonious trial, the Trial Justice demonstrated a propensity to admonish the defense counsel at a substantially more frequent rate than she did the plaintiffs’ counsel, often admonishing the defense counsel for actions about which she failed to comment when committed by the plaintiffs’ counsel. She gave the plaintiffs’ counsel significantly more leeway in cross-exam-ining witnesses and in making extraneous comments than she gave the defense counsel. During the trial and in front of the jury, she gave a gift to the infant plaintiff. Later, also during trial, she gave each jury member a gift when the court recessed for a holiday break. Under the circumstances, the defendants were denied a fair trial by

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virtue of the cumulative effect of the improper conduct of the trial court, and as a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner (see Ougourlian v New York City Health & Hosps. Corp., 5 AD3d 644, 645; Gentile v Terrace Hgts. Hosp., 57 AD2d 585; Perkins v New York Racing Assn., 51 AD2d 585). Accordingly, a new trial is warranted.

We note that the trial court also erred in granting the plaintiffs’ motion to correct an alleged ministerial error made by the jury in recording its verdict, based upon the submission of affidavits of each juror sworn to more than a week after the verdict was rendered, and upon improperly holding a hearing to determine whether the affi-davits reflected each juror’s true intent. Here, although the plaintiffs’ counsel allegedly learned from at least two jurors, immediately after their discharge and before they left the courthouse, that they had intended their award of damages in each category to be on an annual basis, the plaintiffs’ counsel did not procure affidavits from any of the jury members until more than one week later. During that time, the plaintiffs’ counsel [*3]obviously communicated with each juror, exposing them to “outside influences of the most prejudicial sort” (Moisakis v Allied Bldg. Prods. Corp., 265 AD2d 457, 458). In the interest of protecting against the posttrial harassment of jurors and the instability of jury verdicts, the trial court should not have altered the jury’s verdict under these unique circumstances (see Moisakis v Allied Bldg. Prods. Corp., 265 AD2d at 457, 458; cf. Smith v Field, 302 AD2d 585).

The defendants’ remaining contentions are without merit or have been rendered academic in light of our determination.

PRUDENTI, P.J., MASTRO, SANTUCCI and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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Amabile & Erman, P.C., Staten Island, N.Y. (Mauro, Goldberg & Lilling, LLP [Barbara DeCrow Goldberg and Katherine Herr Solomon] of counsel), for appellants Orlando Gonzalez and Orlando Gonzalez, M.D., P.C. Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), for appellant St. Vincent’s Catholic Medical Center of New York. Kramer, Dillof, Livingston & Moore, New York, N.Y. (Thomas A. Moore and Matthew Gaier of counsel), for respondents.

DeCrescenzo v Gonzalez 2007 NY Slip Op 09720 Decided on December 11, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revi-sion before publication in the Official Reports.

Decided on December 11, 2007

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

A. GAIL PRUDENTI, P.J. WILLIAM F. MASTRO FRED T. SANTUCCI

ROBERT A. LIFSON, JJ.

2006-05823 (Index No. 28828/01)

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67 Why is Your NY Doctor Afraid to Treat You?

I was in the emergency room with my son one evening, and the emergency room attending physician stayed 5 feet away from my son until he heard why we were there. There was an unspoken feeling that this doctor was afraid to touch my son and was hesi-tant to come near him until he absolutely had to. I should mention that my son did not have any communicable disease and had no festering sores or boils. He fell at camp and we felt he might have broken a bone. That’s it.

I definitely got the sense that this doctor wasn’t the only one who acted this way toward patients in the emergency room of a large university-based hospital, here in a suburb of New York.

Once the doctor realized we weren’t aliens from another planet, and that we weren’t going to sue him for examining my son, his tone and body mannerisms softened slightly, and he returned to “business-as-usual” in the emergency room.

Recently, whenever you walked into a doctor’s office in New York you’d find articles (I call them propaganda) discussing the high costs of medical malpractice insurance and how it was the terrible trial lawyers who were making their lives miserable. I was fascinated by the material. It didn’t bother me that the doctor was openly trying to get their patients to side with them in their fight against malpractice suits, but I was troubled by what was missing from these articles.

There was no attack upon the doctors’ insurance companies. Nobody came forward to say they were being gouged unfairly for these ridic-ulous insurance costs. It was as if the doctors were turning a blind eye to the very people and companies who insured them in the event they were sued by a patient. It made no sense.

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Whenever I brought this topic up to my doctor or a doctor I knew, I’d get a pause before any explanation. Most of the doctors I spoke to never thought about attacking their own insurance company. Rather, they were quite happy to see an organized effort to focus the blame on trial lawyers for their exceptionally high premiums. There is no ques-tion that doctors on Long Island pay some of the highest malpractice premiums in the country. The question of why this is so will best be addressed by politicians and people who have studied the exact reasons for this problem. I will however point out that many credible studies have consistently shown that the insurance companies are to blame for their own cries of “We need more money.” Repeatedly, insurance companies have made poor investment choices and when they’re in a downturn cycle, tend to get their advertising guns out and point the finger at everyone but themselves.

So why are doctors afraid to treat you? They’re afraid of being sued. That’s it. Some doctors practice without caring if someone sues them. They know they’re providing the best medical care they can give. Other doctors look at patients as adversaries, never knowing when that lawsuit is going to hit.

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68 5 Reasons Why Your NY Injury Lawyer Will Lose His License

1. He steals your money.

2. He steals your money.

3. He steals your money.

4. He steals your money.

5. He steals your money.

OK, enough sarcasm. But really, the main reason a lawyer in New York will lose their license is if they do not give you the money you were to receive as part of a settlement or a jury award.

In a settlement, the insurance company makes the settlement check payable to both you and your lawyer. The lawyer is supposed to have you come into the office to sign (also called endorsing the check). Many lawyers try to avoid having the client come into the office just to sign the check. It’s an inconvenience for many clients, and most agree to have the attorney sign their name to the check.

In years past, many lawyers took their client’s oral authorization to sign their name to the settlement check. However, the better prac-tice is to get written permission from the client which authorizes the lawyer to sign their name to the check when it comes in. This way the client will have a difficult time saying that they never gave their lawyer permission to sign the check for them.

OK, so what happens then? The check must be deposited into a special “Trust” account, called an “Escrow” account. The check must then clear. Once it has cleared, the lawyer is OBLIGATED to give the client his (or her) money. From the escrow account the lawyer will usually write three checks:

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1.) A reimbursement check to his law firm for attorney expenses (known as disbursements),

2.) A check for the earned attorney fee, and

3.) A check to you for your net settlement award.

There are many times when medical bills must be paid, or medicaid or medicare must be reimbursed as well. Those payments will usually come out of your share, since they relate to your medical care and treatment.

We have all heard about attorneys who steal money from their clients, and wind up losing their license, but also going to jail. How does this happen?

Without going into the motivation for a lawyer to do something so unethical, one of two things will usually trigger the starting point of an investigation:

1.) The lawyer only gives you part of your settlement, and then gives an excuse as to why he can’t give you the full amount. That may cause the client to file a complaint with the griev-ance committee, which then starts to investigate.

2.) The other reason is that if a lawyer writes a check payable to “cash” from an escrow account, this will send up a red warning flag that something is amiss. Also, if the lawyer overdraws money from his trust account, an automatic warning signal is sent to the grievance committee trig-gering an investigation.

If a lawyer uses some of your settlement money and puts it into his personal account to pay his bills, (this is known as “co-mingling” money) there is an excellent chance your lawyer is on the way to lose his (or her) license.

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Thankfully, this does not happen often. When it does, there is a fund available for the client to seek the money that was stolen from them by their lawyer. It’s called the Client Protection Fund. Every lawyer in New York State pays into it as a way to offset the bad apples from the good ones. Hopefully you will never suffer the indignity of having a lawyer steal your money, especially when that lawyer is required by law, and by legal ethics to hold your money in trust for you. It’s your injury. It’s your compensation.

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69 New York MD’s Malpractice Insurance Premiums, is $170,000 Enough?

Obstetricians and neurosurgeons in New York pay over $170,000 per year, per person, to have medical malpractice insurance. What do they get for their money?

When a doctor buys a malpractice insurance policy, they usually get an insurance policy that protects them for that year for up to $1.3 million dollars for each event that year, up to a maximum of $3.9 million dollars total for that same year. (The $3.9 million is called an “aggregate amount”). What does that mean for a patient who has sued a doctor in New York?

It means that if the patient is successful in their lawsuit and either settles with the doctor or obtains a verdict against the doctor, the maximum the patient can obtain from the insurance company would be $1.3 million on behalf of that individual doctor. Typically, many doctors and their professional groups take out additional malprac-tice insurance to give them a cushion, or an umbrella, in the event they are required to pay more compensation than their original malpractice insurance policy provided.

In other cases, a doctor may be required to obtain “excess” insurance coverage through the hospital where they have admitting privileges. Again, this attempts to protect the doctor and also the hospital from any large payout.

“How come my doctor on Long Island has to pay so much in insur-ance premiums?” The answer to that question would take many days to answer. There are many reasons that account for such high premiums for doctors including the insurance company making poor financial decisions and requiring additional monies to keep them going. Other explanations point to the trial lawyers as the “bad guys” driving up doctor’s premiums. Still others say it’s friv-olous lawsuits that cause high premiums. Regardless of which

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explanation you accept, the fact is that doctors in New York and Long Island pay some of the highest medical malpractice premiums in the country. The question in the title of this article “Is $170,000 enough?” is a facetious way to inform the reader that the premiums are out of control.

There have been news accounts that some doctors have given up practicing obstetrics or other areas of medicine because of the high premiums. Other accounts claim this is mere exaggeration. Some patients feel bad for their doctor having to pay such high premiums. Others claims that their doctors can afford it and the doctors should stop complaining since they have a greater quality of life than many patients.

Even a staunch advocate of injured victims can understand the frustration of many physicians when they complain about such high payments made to their malpractice insurance companies. Interestingly, there has been no outcry from these same doctors and physician organizations turning to their insurance companies and asking “What are you doing to us?”

Why has there been no outcry from New York politicians looking into the pricing and fees of these same insurance companies? The lack of an answer suggests that the doctors may be afraid to take on their own insurance companies. What about the politicians? Why haven’t they taken up the gauntlet to address such high premiums? The lack of an obvious answer raises more questions about alle-giances to special interests.

There are some people who suggest that if awards for pain and suffering are capped in New York, that will limit the amount awarded, and the insurance companies will not have to continually raise their premiums that doctors must pay to insure themselves. Although this reasoning might sound on its face to be reasonable, it isn’t. There have been many studies in states that have caps on pain and suffering that limited awards do not reduce malpractice premiums for doctors or hospitals. In fact in two separate (non-partisan) studies, premiums were noted to have increased, even with caps in place.

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The next time your doctor complains about the expensive and outra-geous medical malpractice premiums he has to pay before he even pays his overhead, ask him why he doesn’t complain to his insurance company.

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70 NY Anesthesiologist Uses Syringes Twice! Hepatitis Found

An anesthesiologist in New York has recently been found to have used the same syringe to inject medication into different patients. As a result of this breach of infection control, two of his patients have contracted hepatitis.

How could this happen in today’s day and age? Here’s an apparently well-trained physician who claimed, according to his PR person’s statement that “He was unaware that what he was doing was incor-rect.” Give me a break. It’s common knowledge that you don’t re-use needles, and you certainly don’t re-use syringes. Why would anyone re-use a syringe? It makes no sense.

Here’s how it happened, according to the New York State Department of Health:

The anesthesiologist used a clean needle and syringe to obtain medicine from a vial. The medicine was injected into patient #1. The anesthesiologist removed the needle and then replaced the needle onto the syringe that he had used for patient #1. He then sticks the new needle and old syringe into the original medicine vial he used for patient #1. He then injects medicine into patient #2.

After an investigation by the department of health, they determined that a trace amount of patient #1’s bodily fluids likely ended up in the syringe after the first injection. When this doctor inserted the new needle and old syringe into the old medicine vial, it likely contaminated it with patient #1 blood. The tainted medicine vial was then used to inject other patients.

Infection control is critical to preventing errors such as this one where two patients suffered hepatitis from this doctor’s

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improper infection control. The doctor claims that he was cleared by the Department of Health, and given remedial instruction on how to use these “multi-use” vials.

However, when looked at from a legal point of view, and not from a Department of Health regulation point of view, one could certainly argue that there was a departure from good medical care that resulted in significant harm (the hepatitis) to the patient.

I’ll leave it to the politicians to point fingers at the New York State Department of Health and the Nassau County Department of Health about why they didn’t notify this doctor’s patients two years ago about the possibility they may have contracted hepa-titis from this improper procedure.

Importantly, if you believe you contracted hepatitis or other infectious disease from improper infection control, you should contact an experienced New York medical malpractice lawyer immediately.

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71 Frivolous Lawsuits: Are They Fair Topics When Picking a Jury?

How often do we hear the drum beat of “frivolous lawsuits” and “tort reform” from big businesses and from doctors and hospitals?

Look in your newspaper and you’re bound to find articles and adver-tisements trying to beat down the injured victim and their ability to recover compensation.

Importantly, compensation is the right to be paid for something that is owed. It’s not a handout. It’s not a give-away. It’s not a winning lottery ticket, or a slot-machine jackpot. Accountability is the obli-gation to account for one’s actions. Most people will agree that each person should be held accountable for their actions. In our society of justice, if a wrongdoer is not held accountable for their actions, there is a good chance that person will do that wrongdoing again and again. If we are a society of people who require that individuals take responsibility for their actions, then a wrongdoer is responsible not just for the happening of an accident, but also the injuries that arise from that accident. That’s what compensation is about.

When picking a jury in an injury or medical malpractice lawsuit in the State of New York, an attorney representing an injured victim must learn what prejudices or biases a potential jury has, before deciding whether that person is the right juror for that case. How is a lawyer supposed to find out what feelings a juror has about a topic, if he doesn’t ask during jury selection?

Some lawyers in New York feel that the mantra of “frivolous lawsuits” and “tort reform” puts this topic in the jurors’ minds, and creates ill-will toward the lawyer bringing the case. On the other hand, other lawyers (myself included) feel that it is the lawyer’s obligation to ask jurors about their feelings toward frivolous cases. I want to know whether these jurors feel that every case entering the court system is frivolous, or whether they can have an open mind and listen to these

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specific facts, and judge the case for themselves. I make it a point to tell the jurors that if they feel that we have not proven our case, the way the judge explains we are required to, then it is their obligation to turn my client away. However, if we have proven our case, then they are obligated to compensate my client for his injuries.

If a lawyer fails to inquire whether jurors have feelings, good or bad, toward organizations that seek to limit a person’s right to recover compensation, it is my opinion that an injustice is being done to the client’s case. Why? Because a juror might feel that caps on pain and suffering are acceptable. That juror may not want to award a significant award, simply because it sounds like a large number, even though the victim may be fully entitled to it. If the lawyer doesn’t ask about this, how would they ever know the answer? To allow a juror with such a bias onto the jury, without knowing about it, dooms your client’s case from the start.

That’s why I always advocate asking potential jurors about their thoughts regarding frivolous lawsuits and whether they have a limit on what they could award, before they’ve heard any of the evidence. The answers always surprise me.

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72 Why is Your NY Injury Case Worth Only $250,000 and Your Neighbor’s Case is Worth $500,000?

Your neighbor got $500,000 for her injuries. You were injured in an accident, and your lawyer tells you your injuries, even though similar to your neighbor, are worth only $250,000. Why the difference?

There are many factors that go into evaluating a personal injury case. Here are the top 10 things lawyers use to evaluate the value of a case:

1. Venue

Where your case is pending will have a great impact on the poten-tial value of your injury case. Believe it or not, the same injury in Westchester will not have the same value as in Brooklyn. Although attorneys would like to pick where their client’s case is held, we can’t always choose. The choice of venue is often determined by where the injured victim lives, or where the person who caused the accident lived.

2. Members of the jury

When the law says that an injured person has a right to a jury of one’s peers, it doesn’t mean that you’re entitled to a jury of all women between the age of 30-35, similar to you. Members of the jury pool come from all over the county where your case is pending. Their ages, ethnicity, and race will vary greatly. A “jury of one’s peers” is a misnomer. If you have sued a doctor, do you think they’re entitled to a jury of all doctors? The law doesn’t think so. Different venues have different jurors who make up the jury pool. A jury in the Bronx is often different than in Rockland.

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3. Age

Your age is very important is determining the value of your injuries. A younger person may be affected differently than an older person. A younger person may have to live longer with their disabling inju-ries than an older person.

4. Disability

How has your injury disabled you? As with any injury, it affects each person differently. It’s important for your attorney to learn how exactly your injury has disabled you and how it affects you. That leads to the next tip.

5. Daily activity

Does your injury affect your daily activity? If it does, your case will have a greater value than one where your injuries do not affect your daily activities. Can you tie your shoes? Can you lift your children into their car seats? Can you shower without assistance? Can you eat without help? Are you still able to drive?

6. How your injuries affect you

This is the opportunity for you to distinguish your specific case from anyone else’s. Do you take pain medicine? Do you use a cane to walk? Are you prevented from going to the gym to work out? Is your child developmentally disabled? Are they in physical therapy? Occupational therapy? This is one of the most significant aspects of your case.

7. Medical care

Do you need medical care and treatment because of your injuries? Will you need to recuperate? Will you be out of work because of ongoing medical treatment? What will that medical care cost? Will you need surgery in the future?

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8. Future medical needs

What expenses will you need to pay for in the future? Surgery? Medicine? Therapy? Prosthetic appliances? How will you pay for your health insurance when you can’t work? These are economic losses that can be calculated.

9. Lost earnings

How much money did you lose because you’ve been injured and out of work? How much were you earning? What perks did you lose because you couldn’t return to work? What raises did you lose out on because of your disability? Again, this is an economic loss that can be calculated.

10. Future lost earnings

This is an economic loss that an economist (an expert who evaluates what the value of a dollar is today, and compares it with what it’s likely to be in the future) will be able to calculate.

Is your fractured arm worth the same as a pro-baseball Yankees player who fractured their arm? What about a concert pianist who breaks their arm?

Is your arm worth the same as theirs? Does your injury involve your non-dominant hand, whereas your neighbor’s involved her domi-nant hand? Did your neighbor have major surgery to correct her fracture, yet you didn’t need any surgery? Does your medical condi-tion require a follow-up with your orthopedist every year, but your neighbor has to see her doctor every month? Does your neighbor have an ongoing, permanent disability, yet your injuries have healed without problem?

These factors will help you understand why your case is worth a certain amount of money, and your neighbor’s case is worth more.

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73 Medicare Refuses to Pay for Medical Errors

Medicare is a federal program that pays for medical bills and hospital expenses. In a dramatically new twist, Medicare has decided that where a patient suffers injuries at the hands of a doctor or a hospital, and the patient requires additional medical care or treatment because of that wrongdoing, they will refuse to pay for those errors.

The dilemma that Medicare will face is trying to determine exactly what constitutes error by a doctor or hospital, as opposed to a possible complication that might arise from a particular procedure. What about a patient that develops a hospital-borne infection while awaiting treatment? The initial reports indicate that Medicare will not pay for events that “never should have happened”.

Here’s the problem: If Medicare doesn’t pay, and the patient is billed thousands and thousands of dollars for medical care following a medical error, the patient will be forced to bring a lawsuit against the doctor and hospital, if nothing else than to recover money to pay for those medical bills that Medicare refused to pay.

Medicare says that the doctors and hospitals should pay for their errors. That sounds great in principle, however, neither the doctor, nor the hospital are going to fork over hundreds of thousands of dollars for the patient’s medical treatment just because of medical error. Therefore, the patient will be left with no choice but to bring a medical malpractice lawsuit against the doctor and hospital.

This will, unwittingly, create many lawsuits that might not otherwise be brought.

And what if private insurance companies were to change their policy as well? Despite their contractual obligation to pay for a patient’s medical care, what if they start writing new policies that says exactly

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what medicare has said? This will create a ripple effect that, I believe, will incite many lawsuits.

In addition, even patients who were otherwise predisposed to go on with their disabled lives and not interested in pursuing litiga-tion, will now have no choice in order to pay their medical and hospital bills.

In my opinion, Medicare’s change in policy would have a negative and unintended effect and do no good.

The way medicare worked in the past, was that they paid for a patient’s hospital stay. If malpractice occurred during the hospitalization, the patient would likely bring a lawsuit, and Medicare would have a lien against the proceeds of the lawsuit. This meant that they would be entitled to recover the money that they spent for the patient’s addi-tional care that resulted from the malpractice.

Now that Medicare won’t pay for treatment relating to medical malpractice, there will be no lien which the injured victim would have to repay to Medicare. Instead, you’re going to have a lien and possibly a judgment against the patient for the bills for the doctor(s) and the hospital. That could easily result in a lien as well that the patient would be responsible for.

Either way, the patient has no other alternative but to go after the wrongdoer and make them pay for their medical expenses. While they’re at it, they will also sue for past pain & suffering and future pain and suffering, together with their economic losses.

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74 My Bicycle Accident: A Detailed Account Of a Woman Who Didn’t Care

A true story.

It was Monday at 6:05 p.m. when I was finishing up the last leg of my bicycle ride. It was 54 degrees outside and was raining intermittently. Nevertheless, I needed to go for a ride, knowing that I would be safe and careful during the entire trip.

All went well for the majority of the ride. I traveled through Kings Point where the trees were in bloom. The rain drops were hitting my day-glo bright orange bicycle pants. The wind was rejuvenating through my bicycle helmet ventilation system. The excitement of pushing two pedals up and down repeatedly was invigorating. The scenery was magnificent despite the cloudy, overcast and slightly cool day. Being an experienced bike rider I can tell when it’s a good day for biking and when it’s not. Today, despite the minimal weather, it was still a good day for a short ride. Little did I know what awaited me as I headed back through the center of town into Great Neck.

As I pedaled South on Middle Neck Road, the main strip of road through the center of Great Neck, I marveled at the number of stores that opened like the blooming tulips this spring, and shortly there-after wither away and close for lack of steady business. Middle Neck Road is a street usually teeming with car traffic, especially during rush hour at 6:00 p.m. In most parts of Great Neck it’s a two lane road with two lanes of traffic in each direction. At some points the street narrows and only can accommodate one lane of traffic in each direction. The entire length of Middle Neck Road is extremely commercialized and parked cars can always be found on both sides of the street at parking meters.

I had just passed Cedar Drive near the police station. I was heading straight intending to go to the Chinese restaurant to pick up dinner for my family, only two blocks away. When I ride in the street, I always

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ride with traffic, as I’m supposed to do, and as close to the parked cars as possible, to avoid the traffic in the street. I was pedaling at 12 miles per hour with excellent visibility on a slight upgrade. There were no cars behind me as I entered the main section of town. Nor were there any cars pulling out of their parking spot.

In a split second, right in front of me, I saw an arm fling open the driver’s side door of a parked Toyota. The woman who threw open the door never looked behind her to see if anyone was there. Had I been driving a car, I would have effortlessly torn off her driver’s door and seriously injured the woman whose arm had just carelessly flung open fully the driver’s door. Unfortunately for me, I wasn’t in my car. I was on my bike.

The momentum of the moving door together with the impact of the edge of the car door with my right leg was devastating. The door opened directly in my path. I had nowhere to go. The car door flung out so quickly that it threw me and my bike directly into the center of the road. My forward momentum was no longer straight. Instead, I was now diverted with extreme force right into the middle of traffic of an extremely busy road. My bike, which until that moment had been able to propel me down many a street at comfortable speeds ranging between 15 to 30 miles per hour, now became suddenly immobile.

As with any accident, when you stop a moving vehicle suddenly, the people inside the car or train or bike still continue to move forward at the speed at which they were traveling at the moment of impact. When that person comes into contact with a fixed immovable object, that’s when injury occurs.

My bike stopped still. I didn’t. I went flying over the handlebars with no place to go but forward and down. My arms flew out in front of me to brace the impact with the ground. Only days later did I remember that you are never supposed to put your hands or arms out in front of you to break your fall, because that results in fractured wrists, and arms.

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Instead, bike riders going over the handlebars are reminded to try and roll with their momentum and roll over, like a tumble-salt you did when you were a kid (without hitting or bending your head or neck). The problem is that when you’re in the middle of a shat-tering impact between steel, metal and glass, you have no time to think about what you’re supposed to be doing, only why you’re now lying on the ground in the middle of the street that cars are currently using.

Luckily for me there were no cars directly behind me. If there were, I probably wouldn’t be writing this account of what happened to me, rather one of the obituary reporters probably would. I didn’t hit my head, nor did I lose consciousness. I do remember very clearly letting out loud screams of curses directed mostly toward the middle aged woman who had opened her car door without the slightest of cares. I didn’t notice it immediately, but there were two women who witnessed the collision of the car door with my moving form. The look of shock on their faces told volumes about what they just saw, without either of them saying a word. One woman proclaimed “Oh my God! I’ve never seen anything like that! You just flew over your bike when she hit you with her car door.”

The woman who opened her car door, to her minimal credit, imme-diately came over and apologized profusely, not once but multiple times. I got up from the street within moments and began limping horribly to the sidewalk where I tried to gather my wits and see if all of my bodily parts were still attached. They were. But I noticed immediately burning and stinging in various parts of my body including my right leg, both my arms, and my left shoulder. What made matters even worse was that I was trying to convince myself that despite this impact I was totally fine even though it was obvious to everyone at the scene that I couldn’t walk very well. I happened to glance toward the street while taking stock of body, that I noticed my bike was smack in the center of the road, blocking all traffic in the southbound lane. I hobbled over to my bike and gingerly carried it to the sidewalk.

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To a biker, a trusty bike is worthy of trust and respect. It gets you from point A to point B with little or no problem. If properly main-tained it will take you places you’ve only dreamed of. A broken bike can probably be as upsetting to a biker as their own physical injuries. In any event, it’s just a bike, and like every material item we own, can eventually be replaced. We, as people, cannot.

Both witnesses volunteered to call an ambulance or the police (the station was literally 30 yards away). I declined, still opting to convince myself that I was alright. My hands moved, I was conscious, I could feel and I could talk. I knew I was bruised and banged up, but didn’t feel I broke anything major. My right thigh, also known as the femur- the longest and strongest bone in our bodies, didn’t act or feel as if it was broken. I assumed that if it was broken, I wouldn’t be able to walk at all and would be in excruciating pain.

One of the witnesses suggested I see a doctor right away- good advice, but I still had to get dinner home to my family and still convince myself I was ok. This same witness also suggested I obtain the woman’s insurance information in case I decided to file a claim.

I now looked at the car for the first time. It was a red Toyota convertible, two-door. The woman with dirty blond hair hesitated and instead offered to pay me for my troubles right then and there. Still not being able to fully comprehend what was happening, I was about to open my mouth to let her know what I do for a living when the witness blurted out, “Oh no! Don’t you let her get away with that! You might have some significant injury that you don’t know about yet and by taking her money now you’d be doing a terrible thing.”

I looked from one woman to the next to the next. Three women in all. Two were witnesses, the other, the careless woman who caused me to be in a slightly perplexed state. I finally figured it out. She wanted to buy me off right there. She even asked to see my leg and asked me to roll up my pants. The other witness said “You’re not a doctor, what good would that do?”

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When I came to my senses, I finally told my audience what I do for a living. “I’m a personal injury and medical malpractice attorney,” I said. The red Toyota woman dropped her mouth in shock. The eyewitness expressed shock as well. “Well how about that? You hit the worst person you could ever expect- a personal injury attorney.” I collected the Toyota woman’s information, then looked her straight in the eye and said “I could understand if this was my fault. But it wasn’t. You never looked to see if anyone was behind you when you opened your g*damned door. If you had, you’d have seen me and waited for a moment until I passed you.” With that, she again apolo-gized, got into her car and drove away, forgetting about whatever it was that she had gotten out of the car to do in the first place.

There is a book called The Kindness of Strangers that my wife has on her shelf that I never bothered to read. I mention it only to contrast my years as a trial attorney representing tragically injured people where I never truly appreciated what happens to a person at an acci-dent scene. The eyewitness, who turned out to advocate for my well- being offered to take me and my broken bike home, without knowing anything about me, or even where I lived. Even more impressive was that she insisted that we stop at the Chinese restaurant to pick up the dinner my family so eagerly awaited.

Finished with that task, this stranger deposited my bruised and injured body to my front door, Chinese food in hand and my bike huddled in the corner without a second thought. All I could say was “Thank you so much for your kindness.” Without another word she drove out of my driveway, back to her daily activities while I walked in the front door with a sense of foreboding knowing that my large family would start assaulting me with questions the moment I told them what had happened.

After recounting in detail the events that had just transpired, I show-ered and hobbled my way downstairs to partake in the Chinese food I had just picked up. I knew that later and even the next few days, I’d feel every bump and bruise where previously I was healthy. Looking back on this moment in time, I can only be thankful that I wasn’t seriously hurt. I will live for another day and long to see the sunrise

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and the sunset. I was fortunate today and recognize that when we’re injured, it’s not what we have left that matters, but really what has been taken away from us that is most important. That’s the true element of damages.

Thanks for being a captive audience.

Remember, be safe out there today, and pay attention to your surroundings. The life you save today may be your own.

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75 Would You Allow a Trial Judge to Sit as a Juror on Your Malpractice Case?

As a plaintiff ’s attorney representing injured victims, the answer is no.

Why then did a female trial lawyer in Mineola, Long Island agree to accept a trial judge onto her jury panel in a medical malpractice case?

According to the New York Law Journal, this female lawyer was quoted as saying “I selected this judge because I figured he’d be able to explain the defense’s shenanigans to the other jurors.”

The defense attorney however was quoted as saying, “I have a different point of view. I like intelligent and smart jurors. That’s why I chose this particular judge.”

Interestingly, the day after this article appeared in the New York Law Journal, I was participating in a continuing legal education program, judging a national law student mock trial competition. The judge assigned to our courtroom was the one who sat on the recent malpractice case that resulted in... (can you guess?), a defense verdict.

I learned that this judge was a conservative republican judge assigned to a criminal trial part. My only thought was, “What was the plain-tiff ’s attorney thinking?”

Now that doesn’t mean that even if this person was not on that jury, and someone else was, that the outcome of that malpractice case would be different. But the purpose of selecting a jury is to try and select the best possible jury for your client’s case. In my opinion, putting a republican judge on a jury in a malpractice case against a doctor and a hospital, in a conservative county is not a good choice.

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In New York, lawyers, doctors, judges and other professionals must serve jury duty.

That doesn’t mean, of course, that they must serve as a juror on your case. Find out more information about your prospective juror. Ask yourself, “Is this really the person I want judging my client’s case?”

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76 How Can Small Claims Court Help Me Get Justice?

Johnny B. Good walked into the photo store with seven rolls of film to develop. “I’d like my honeymoon photos developed as soon as possible. We were in Italy and I took the most amazing pictures in my life,” he said. “No problem,” answered the clerk at the photo store. “We’ll have them ready by the end of the day,” she replied. After work, Johnny returned to the photo store to claim his developed pictures. “Uh, are you sure you brought them in?” asked a different clerk. She looked everywhere, they couldn’t be found. The next day the clerk who took the film learned that the cleaning person inadvertently threw 10 rolls of undeveloped film in the trash. Furious, Johnny demanded justice. “These are irreplaceable memories. Memories of a lifetime! What am I going to do?”

Q: Does Johnny need a lawyer? Can he handle it himself in small claims court?

A: Johnny doesn’t need a lawyer. Small claims court is the perfect place for this claim.

Johnny needs to file a claim in his local small claims court. There’s a small fee to start the case, and they give you forms and a booklet telling you what to do. Make sure that you keep all documents relating to your dispute. On the day you are scheduled to appear in Court for your trial, make sure you arrive with all of your witnesses to support your claim. There’s no jury in small claims court, only a Judge. I cannot stress how important it is to be dressed neatly and cleanly. You don’t need to dress up, but don’t walk into Court in a T-shirt, shorts and sandals. Here’s a typical example of a case in small claims court- Many years ago my brother brought his car into a mechanic to be fixed. The mechanic left the car in his parking lot overnight where it was stolen. The mechanic claimed he fixed the car before it was stolen, yet had no way to prove it. Despite this obvious

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lack of proof, he demanded payment for the extensive repairs, even though he no longer had possession of the car.

The car was found weeks later, totally stripped of all parts. The mechanic brought a lawsuit in small claims court seeking to be paid for his “repairs”. To my mother’s credit, she actually counter-sued him for the loss of the car, claiming that he failed to lock the car, leading to it being stolen.

The judge listened to both parties and determined that the mechanic was at fault for causing the car to be stolen, and that the mechanic had no way to prove he made any repairs to the car before it was stolen. The mechanic’s claim was thrown out, and my mother’s counter-claim was found to be valid.

The rules of evidence are the same in small claims court as they are in the Supreme Court (the Trial level court in New York), but there is a tendency to be less formal since the litigants and their represen-tatives are usually not lawyers. Do not forget that the Court is still entitled to respect, and the proceedings are recorded either by tape recorder or by court stenographer.

After all witnesses tell the Judge their version of what happened, the Judge will usually put his decision in writing and mail it to the liti-gants a few days later. (They do this so that the losing party doesn’t start screaming and disrupting the courtroom immediately after a decision.).

The short answer is yes. The long answer may be no. In small claims court you will get to present your case to the Judge rather quickly (within a few weeks) after you’ve filed your claim. But if there are postponements by either side, then you will have appeared multiple times, lost time from work on each occasion, and waited endlessly in the courtroom, simply to be told that you must come back on another day.

Remember, there are hundreds of small claims filed every week. On any given day, the Judge might have 20-40 cases to dispose of. Not

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each case requires a trial and many cases get put off for another day. Some cases may be resolved in mediation with a lawyer appointed by the Court- which is similar to settlement negotiations.

You must determine whether the time you are going to spend waiting around a courtroom for justice is worth missing at least partial days off from work. If you choose to have your case heard in the evening session because you can’t get off from work, keep in mind that you’re not alone. Lots of other folks will also be there waiting to have their case heard. While in the courtroom, you can expect to hear cases that are very trivial. You might even wonder why someone would bother to bring a claim for such nonsense, or why they’d spend any of their valuable time pursuing such a ridiculous claim.

The answer to the question stems from the right every citizen in New York State has- the right to bring suit if they feel they’ve been wronged by someone else. That’s the price of freedom. Democratic countries allow its citizens the right to seek compensation for damages, whether it’s personal injury or a contract that was broken. A promise is a promise. People should be held accountable for their actions.

Are there cases that even in small claims court don’t belong there? Probably yes. But we as spectators, don’t have the right to criticize the claim, only the process. Does it make for interesting viewing? You bet. Even better than daytime TV or the latest reality show! Why? Because this is real life. This is reality.

So, to answer the question ‘Is it worth it to go?’ Yes. Everyone should go at least once, if only to observe the small matters that are impor-tant to people.

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Final Commentary by Gerry

I hope these articles have given you the information you need to know and explained how lawsuits involving accident and medical malpractice cases work in the State of New York. With your new-found knowledge you are a better-informed consumer and know what questions to ask when you speak to an experienced accident and malpractice attorney about your potential case.

I wish you the best of health and prosperity, and wish you good luck in your quest for justice.

Thank you for taking the time to read my book.

Again, if you have any questions, please pick up the phone and call me at 516-487-8207. There’s no charge to speak to me. Really. (And I don’t bite either).

Best regards,Gerry

P.S. After you’ve explored my website, www.oginski-law.com take a look at my video blog where I have instructional video tutorials that further explain how NY medical malpractice & injury cases work, www.medicalmalprac-ticetutorial.blogspot.com.