c r e t s

Se
of a New York
Medical Malpractice
& Personal Injury
Attorney
An Insider’s View of
Medical Malpractice Cases in New York
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.

Printed in the United States of America.

ISBN: 978-1-59571-440-4

Designed and published by

Word Association Publishers

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Tarentum, Pennsylvania 15084

www.wordassociation.com
1.800.827.7903
 c r e t s
Se
of a New York
Medical Malpractice
& Personal Injury
Attorney
An Insider’s View of
Medical Malpractice Cases in New York

Gerry Oginski, Esq.

WORD ASSOCIATION PUBLISHERS

www.wordassociation.com
1.800.827.7903
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. T
 op 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. W
 hat Exactly Does a Personal
Injury and Medical Malpractice
Lawyer Do?.............................................................................................13
4. 1 0 Reasons Why You Should Call
a Lawyer..................................................................................................19
5. D
 ead Man’s Family Calls NY
Malpractice Lawyer First Before
Burying Him...........................................................................................23
6. H
 ow 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. T
 op 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. 1 5 Key Deposition Techniques
in a Medical Malpractice Case...........................................................89
26. W
 hat is a Deposition and Will I
Have to Testify?....................................................................................95
27. J udgment Non Obstante Verdicto -
What is it, and Why Should
You Care?..............................................................................................97
28. W
 hat 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. W
 hat 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. W
 hat is Shoulder Dystocia & Erbs Palsy?........................................187
59. F
 ailure 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. N
 Y 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.
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)

xv
xvi
 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.
xvii
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.

xviii
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

xix
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

xx
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.

xxi
xxii
 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
xxiii
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.

xxiv
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

xxv
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.”

xxvi
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.

xxvii
xxviii
 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

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
6
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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8
 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

10
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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12
 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.

15
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

16
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.

17
18
 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.
19
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

20
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

21
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.

22
 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
23
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.

24
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.

25
26
 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
27
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.

28
 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.
29
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.”

30
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.

31
32
 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.

33
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

34
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.

35
36
 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?
37
 “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.

38
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. D
 o you really want to pick a lawyer they way you choose
a plumber?

39
40
 10 Facts Your NY Personal Injury
10 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.

41
 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.

42
 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.

43
 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

44
 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.

45
46
 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?

47
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.

48
 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
49
in writing. See how quickly they backtrack when you ask them to do
that!

50
 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,
51
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.

52
 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.
53
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.

54
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.

55
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.

56
 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”?

57
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.

58
 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.

59
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.

60
 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
61
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.

62
 Section 2
Do You Have a Valid Case?
 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
65
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.

66
 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.

67
68
 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.

69
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.

70
 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.

71
72
 Section 3
How Lawsuits in New York Work
 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
75
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.”

76
 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.

77
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

78
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.

79
80
 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,
81
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
87
the doctor’s instructions before, during and after surgery. Is it any
wonder that most malpractice cases are won by the defense?

88
 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

90
 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?

91
 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

92
 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. F
 inally, 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.

95
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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98
 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

101
 • 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
102
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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104
 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?
105
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.

106
 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
107
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.

108
 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.

109
110
 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
111
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

112
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?

113
114
 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.
115
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.”

116
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.

117
118
 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
119
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.

120
 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.
121
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.

122
 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.

123
124
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.

125
126
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.

127
128
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.”

129
130
Section 4
Different Cases
 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.

133
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

134
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.

136
 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.

140
 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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144
 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

147
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.

148
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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150
 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
151
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.

152
 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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 In Case of Death - Part 1.
49 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

164
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.

165
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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.

167
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.

168
Sitting around doing nothing solves nothing. Getting answers when
your loved one dies is crucial—especially when you suspect foul play
or wrongdoing.

169
170
 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.
171
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.

172
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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174
 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
175
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

176
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.

177
178
 How Does a Doctor
55 “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.

180
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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182
 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
183
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.

184
 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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194
 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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202
 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

206
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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208
 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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218
 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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222
 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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230
 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
231
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
241
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.

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