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Beyond the

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

WOR D A S SO C I AT ION PU BL ISH E R S


www.wordassociation.com
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: 978-1-59571-441-1

Word Association Publishers


205 Fifth Avenue
Tarentum, PA 15084
www.wordassociation.com
Beyond the
ER Doors
An Insider’s View of Medical
Malpractice Cases in New York

Gerry Oginski, Esq.


Chapter 1
An Urology Disaster in New York

New York Medical Malpractice Trial Attorney Gerry Oginski explains


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

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


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

This man’s unfortunate journey began when he started having


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

The problem with this procedure is that the scar tissue is


virtually guaranteed to return weeks or months later. Why?
Because this procedure is a band-aid. It only removes the
scar tissue, but does not eliminate the reason why it keeps
coming back.
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Three months later, my client was back in the urologist’s
office with the same exact complaints: Difficulty urinating,
straining and pain. The doctor again recommended the
same “cold-knife urethrotomy.”

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

After the second procedure, when the urolological symptoms


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

Instead, the original treating urologist told my client he


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

First, the stent was not meant for young men. Rather,
it was meant for old men who no longer have erections.
The reason is that in a young healthy man who still gets
erections a stent will cause excruciating pain. In an elderly
man who no longer is able to achieve an erection, the stent
may be the right fix. Second, this stent was not meant to
be used for the amount of scar tissue that my client had-
in fact the manufacturer’s own guideline clearly indicated
it was not to be used for strictures that were as long as my
client’s stricture.
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To make matters even worse, after four weeks, my client
had such excruciating and terrible pain in his penis from the
stents that the doctor decided to try and remove the stents
and insert two new ones. The problem is that these stents
are designed to be permanent. Once inserted, layers of
skin tissue grow over the stents to hold them in place. They
literally become embedded within the urethra.

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


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

The pain where the stents were located became so unbearable


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

Corrective Surgery

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


hours. The embedded stents had to be painstakingly removed.
Since the urethra needed to heal for more than a year, there
had to be another location where the urine would exit from
his body during this time. The surgeon created something
called a “urinary diversion,” which is exactly what it sounds
like. The urine is diverted from the urethra and out the penis,

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to a different location. The problem is that there is no other
natural way for urine to exit in a man’s body, so the surgeon
had to create an alternative opening. The only place for this
alternate way to urinate was to make a surgical hole between
his scrotum and his anus. Every time he needed to urinate,
he’d have to sit down on the toilet, like a woman, and wipe
every time. This was totally humiliating for him.

He also had to have a huge section of skin taken from his thigh
to use as a skin graft inside his penis for his new urethra.

After almost 17 months of healing, with no sex and no


ability to go swimming during this time, he had his second
corrective surgery. The urinary hole next to his scrotum was
finally closed. His urethra was reattached to his bladder and
now urine flowed correctly out through his penis. After two
months, he was remarkably better.

We alleged that the doctor never should have inserted stents


into this man’s urethra and doing so was a departure from
good medical care. Putting the stents in, taking them out,
and putting two new ones in destroyed his entire urethra.
Had the original urologist done the right thing and sent
the patient to a reconstructive urological surgeon after the
second urethrotomy procedure, this young man never would
have needed such an extensive reconstructive procedure
known as a “rescue urethroplasty.”

The defense claimed that it was appropriate to use these stents


and that he still would have required a “urinary diversion”
regardless of when the corrective surgery took place. The
problem with this reasoning was that the defense failed to take
into account that before his urethra was totally destroyed,
he could have had a simple urethroplasty procedure with no
need to divert his urine.
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Conclusion

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


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

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Chapter 2
A DENTAL IMPLANT NIGHTMARE

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


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

What is a dental implant?

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


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

The cost to place implants

My client had been to a few different implant dentists and


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

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


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

“If It Sounds Too Good Too Be True... It Is”

This patient was quoted a price of $22,500 to put in 10


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

What the patient got instead was botched dental treatment.


To begin with, the oral surgeon failed to properly evaluate
whether this patient had sufficient bone for all these
implants. He failed to identify where the nerves were in
relation to where he was going to insert the implants.
Unfortunately for the patient, the implants were put in too
close together; they were improperly angled; there were too
many implants; he put an implant into the patient’s sinus
and never realized it; he created a hole in the sinus and
despite trying to fix it twice, failed.

The Records Don’t Lie

The doctor’s dental records were worse than scribbles.


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

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

A Dentist Abandons His Patients

Months after the patient had his implants placed into his jaw,
he received a letter from this dentist announcing that he could
no longer continue to provide dental services, giving various
excuses. Incredibly, the dentist failed to refer this patient, or
any other patient, to another oral surgeon to continue their
dental implant care. As a result, my client remained without
any teeth in his mouth for two full years.

Calls and letters to this oral surgeon requesting a refund


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

Next Stop: To an Experienced New York


Dental Malpractice Lawyer.

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


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

The successful settlement will now allow my client the chance


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

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Chapter 3
PLASTIC SURGERY

Can I Bring A Lawsuit Against My Surgeon If He


Destroyed My Breasts?

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

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


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

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

There are always risks associated with any surgery. I am positive


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

The second point is that you must address your displeasure


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

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


is whether your case really has merit, and whether it is
financially beneficial for you and your attorney to proceed.

In my opinion, I do not accept plastic surgery cases unless


it is clear, based upon expert medical review, that there
are departures from good care (not just that the patient is
unhappy with the outcome of their boob job, or nose job),
that the departures were a substantial factor in causing injury,
and that the injury is permanent.

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Chapter 4
COLONOSCOPY

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

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


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

What do you think? The short answer is no. The longer


answer is still no and here’s why.

Doctors who perform colonoscopies are aware that


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

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

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

Here’s the key to determining whether you have a


potential case

The fact that there was a perforation during your


colonoscopy is, in all likelihood, not malpractice. It’s the
failure to recognize the hole that is a departure from good
care. When the patient called to complain, the first thing
the doctor should have done is get the patient back into the
office for an evaluation. Additional tests may be ordered
which may reveal the ongoing problem. If this fails to detect
the problem and the patient continues to complain, the next
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step is usually to send the patient into the emergency room
for a full work-up and evaluation.

Only with proper and timely monitoring of the patient


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

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Chapter 5
ECTOPIC PREGNANCY

Failure to diagnose an ectopic pregnancy is


potentially life threatening.

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


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

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.

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

The key question is when does the surgeon intervene before


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

All of these questions are valid and require an expert


gynecologist to fully answer them.

Often times, in failure to diagnose ectopic pregnancy cases


in New York, the patient will have symptoms that should
suggest to the doctor the likelihood of an ectopic pregnancy.
It is important for your medical malpractice attorney to look
carefully at the medical records to determine what complaints,
if any, you made to your doctor or hospital emergency room,
and whether those complaints were recognized or ignored.
Did the doctor recognize the possibility that you might have
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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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Chapter 6
Examples of Malpractice

An Experienced New York


Medical Malpractice Lawyer Explains

Is it malpractice if a doctor ignores an abnormal computerized


EKG result?

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


MRI result is abnormal?

Is it a departure from good and accepted practice if a


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

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


bile duct when doing a laparoscopic gallbladder removal?

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


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

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What about the case of a man who collapses at home, is
rushed to the emergency room, has emergency surgery on
his intestines and he comes out of surgery needing to have
his hand amputated days later.

Maybe this one will catch your attention

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


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

Immediately upon opening her belly, a huge amount of air


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

What about the man who had eye surgery to repair a drooping
eyelid and came out of surgery being blind? Turns out that
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the eye surgeon cut his optic nerve during surgery, and only
realized the horrible mistake a day later- too late to fix the
problem. The man is now permanently blind.

What common recurring theme is found in each of these


cases?

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


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

Thanks for becoming informed.

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Chapter 7
LUNG CANCER

The Ten Most Important Things


Your Lawyer Needs To Know

Failure to diagnose lung cancer is deadly. The earlier you


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

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


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

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


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

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


physician, during the time you believe you should have
been diagnosed?

2. Did you make any complaints to your doctor that


should have warranted a chest x-ray?

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

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

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


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

6. How much time went by from when you believe you


should have been diagnosed, until the actual diagnosis
was made?

7. Did you ask your treating cancer specialist (an


oncologist) if your outcome would be different if
the cancer had been detected ‘x’ years ago? (This is
very important, since different types of cancer have
different growth patterns. Some are slow growing,
and some 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.
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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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Chapter 8
Emergency Room Misdiagnosis

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


He went to an emergency room in a municipal hospital in
New York. The emergency room doctor told him he had
a fracture and they would set the fracture and put a cast
on. The cast would remain on for 6 weeks. He was told to
follow up every few weeks to make sure the broken bone
was healing properly.

This young man returned to the orthopedic clinic, as


instructed, and each time he went, x-rays were taken. After
x-rays were taken, the orthopedic resident reassured him
that everything was healing properly. Six weeks after the
initial injury, the patient had his cast removed. He was
shocked at what he saw. His arm looked like a roller coaster.
It was straight, then went up, curved, then went down and
flat again. He asked the doctor whether this was normal.
The physician told him that with physical therapy this
would go away.

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


amount of physical therapy would make his bone go back
into the correct position. He decided to seek another opinion
of an orthopedist near his home. After additional x-rays

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

This young man learned that his broken bone was never
set properly. Had it been properly set when he was in the
emergency room, he’d never have needed this additional
surgery and wouldn’t have to have his bone re-broken and
then put back together with plates, pins and screws.

During this lawsuit, I had a chance to question the “Doctor”


who treated my client in the emergency room. It turns out
that this “doctor” was not a doctor at all. In fact, he was just
a physician’s assistant who was supposed to be supervised by
the attending emergency room physician. Unfortunately for
my client, this physician’s assistant never asked his supervising
physician to review the emergency room x-ray before or after
he had set the bone to make sure it was done correctly. Even
more amazing was that none of the orthopedic residents who
evaluated this patient in the orthopedic clinic recognized that
the x-ray was clearly abnormal and that the bone would not
heal in the correct position.

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


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

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This injury was totally preventable, and the attorney who
represented the hospital recognized that fact during the
litigation. I am pleased to report that this case was successfully
resolved shortly before trial.

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Chapter 9
5 Holiday Tips To Keep You From Being an
Emergency Room Malpractice Victim

The holidays are notorious for over indulging on food,


overexertion while shoveling snow, and high levels of stress.
Unfortunately, this puts many people in the emergency room
needing immediate medical care.

What happens in the emergency room when the hospital is


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

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


you wind up in the emergency room:

1. Make sure you are seen by an attending emergency


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

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


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

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


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

4. If you are given medication, either in pill form or by


intravenous line, you must ask if there’s the potential
for an allergic reaction. Allergic reactions can kill you.
You must ask.

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


emergency room staff notes it on your chart, and
make sure you are given an ‘allergy bracelet’ to let
everyone know about your allergies. In practically
every hospital, allergy bracelets are available to warn
hospital staff about a patient’s allergies. Don’t rely on
a note in your chart to inform the doctors and hospital
staff about your allergy.

Veteran New York malpractice lawyer Gerry Oginski says


“Keeping these tips in mind while in the emergency room
will minimize your risk of being a medical malpractice victim
during this holiday season.”

34
Chapter 10
Cross-Examination Of An Expert Witness
In An Erbs Palsy Case

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


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

In the case I had, the expert was a world renowned expert


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

Also look to the witness’ clinical experience and current


status at their hospital. This expert who was going to be
35
giving opinions about whether doctors at a hospital in New
York rendered the appropriate medical care hadn’t done a
vaginal delivery in a long time. Nor had he had any recent
experience with shoulder dystocia, or any deliveries where
erbs palsy was diagnosed at the time of delivery.

Point

Even though your opponent produces a well-known expert


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

Look at the basis for each of the conclusions the


expert has reached

If the facts upon which the expert rendered an opinion is


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

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


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

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


evidence of a shoulder dystocia based on the information
in the medical record, correct? However, you’d agree that
the individual who delivered this child made very few
36
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 pressure was placed
on her belly, would strongly suggest that a shoulder dystocia
was present, correct?”

“If shoulder dystocia is present then that person doing the


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

Know the medicine

In any malpractice case, you must become familiar with the


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

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


Shoulder dystocia, erbs palsy, brachial plexus injury,
McRoberts, Woods-corkscrew maneuver, cutting an
episiotomy, sweeping the posterior arm, fracturing the
clavicle, the zavanelli maneuver, sonogram, intra-uterine
anomalies, maladaptation, malalignment, cervical dilitation,
normal progression of labor, first stage of labor, second stage
of labor, apgar scores, lateral traction, downward traction,
37
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.

38
Chapter 11
ANESTHESIA ERRORS

Result in Brain Damage

The words we never want to hear “I’m sorry, your loved


one has irreversible brain damage...” says the doctor in the
crowded waiting room. You blurt out “But how did this
happen?” you ask with baited breath, trying to learn the
source of your terrible angst. The doctor wants to tell you, in
fact, is eager to tell you... but the doctor knows that if he tells
you the reason why this happened, you will likely bring an
immediate lawsuit against the hospital, the anesthesiologist,
and everyone who cared for your loved one.

When going to have surgery, the anesthesiologist is obligated


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

39
Why is this important? Because there are some patients who
would rather not take a risk, however remote, that something
catastrophic could happen during a “simple, routine” surgical
procedure. Take for example a case I handled a few years
ago. It involved a woman who was having a colonoscopy in
a doctors office. She had followed the doctor’s instructions to
prepare for the procedure to the letter. No food past midnight,
nothing to drink. She’d taken that awful, disgusting drink
that causes you to go to the bathroom 20 times in a row, for
a total clean-out.

When she arrived for her colonoscopy, she never expected


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

The anesthesiologist still didn’t recognize the significance


of what had happened. The patient’s oxygen content was
dropping rapidly. There was a strong suggestion that the
anesthesiologist wasn’t even around to monitor the patient
as he had to go into the next case to provide anesthesia for
40
the next patient. After almost an hour of labored breathing
in the recovery room, and a decreasing oxygen content in
the patient’s blood, did someone finally call an ambulance.
The patient developed severe pneumonia from the foreign
matter (vomit) that was now in her lungs. Two days later
she died directly as a result of the anesthesia errors and
the doctors failing to stop the procedure when there was a
significant complication.

The sad part of this story is that this woman would have
lived for many more years had these errors not taken place.
The patient suffered brain damage and severe damage to
her lungs from an anesthesiologist who failed to recognize
common complications- and developed a condition the
doctors called aspiration pneumonia, as well as hypoxia- also
known as a decreased amount of oxygen in her lungs, blood
stream and brain.

Another case I handled recently involved a young man who


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

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


been admitted to the hospital. He was admitted to a regular
floor and there was no electronic monitoring of his oxygen
levels, his cardiac status, or even his breathing. It was an
41
unmonitored medical floor where the nurses came in every
three or four hours just to check on you and possibly take
your vital signs if you were lucky.

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

This young man lived on a respirator, suffered every


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

Anesthesia errors are tragic and unforgiving. If tragedy


strikes, try to have this question answered: “Why did this
happen?”
42
Chapter 12
MORE PLASTIC SURGERY MAYHEM

My New York Doctor Screwed Up My Breasts -


Do I Have A Case?

I receive many calls from women who have breast reduction


or augmentation surgery 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,”
“T he 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

43
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 considered malpractice.

Let’s look at wound infections. Wound infections can


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

Most patients who have breast reduction or augmentation


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

There are many women who have revision surgery to


minimize their scars. Others have their implants replaced for
different sizes. The tummy tuck that was sutured too tightly
may need to be surgically opened and loosened. Those
patients who have revisions are sometimes given ‘freebies’
by the surgeon. In other words, he (or she) will not charge
for a repeat or corrective surgery. I receive some calls from
44
women who are furious that they need revision surgery and
their surgeon still wants to charge them $10,000, $15,000
or even $20,000 cash. (Remember, insurance doesn’t usually
pay for elective plastic surgery.)

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


caused. Some photos show terrible looking scars. The nipple
may be off-center. The scarring may be keloid and raised. It
may be a fresh scar and not have had time to heal yet.
Here’s why a plastic surgery victim calls a lawyer’s office to
ask if they have a valid medical malpractice case:

They see themselves as disfigured following a costly and


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

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)
45
that the injury is significant and permanent, are we permitted
to go forward and prosecute a case on your behalf.

If any one of those three elements noted above 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.

46
Chapter 13
DENTAL MALPRACTICE

Pain During Treatment Do I Have a Case?

A call comes in...

“My dentist was doing a root canal on me and caused me terrible pain.
The pain continued for days. Do I have a case?”

The short answer is no. The longer answer is maybe.


Here’s what I mean. In any dental malpractice matter, as
with any medical malpractice case, a New York attorney
must be able 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 injection to anesthetize part of your mouth. There’s pain
with a cavity and pain with infection. Pain is what usually
leads us to the dentist in the first place. If you’re having root
canal treatment, it usually means that you had pain that didn’t
go away with filling your cavity. Your nerve needs to come
47
out, and root canal may be the only way to do it. Sometimes
the dentist is unable to get the entire nerve root, leaving a
small piece in the canal. This may be the reason for your
pain. Maybe you have a post-procedure infection causing
you pain. Maybe the dentist didn’t numb your entire mouth
and you still feel the pain. This pain is either part of the
initial problem, or part of the procedure, or a complication
of the procedure.

Unless your lawyer can prove that your pain was directly
caused by something that was done improperly, it will be
difficult, if not impossible to prove your case. If however,
your lawyer can show that something was done wrong, like
leaving a needle inside the canal and the dentist failed to
recognize that, you might then be able to show liability.
However, the next step is in proving the extent of your
injuries. If you suffered minimal injury, again, it will be
difficult to prove a long-lasting and permanent condition. If
instead, you suffered permanent problems requiring ongoing
and continued dental care and reconstruction, you might just
have a basis for proceeding forward.

48
Chapter 14
MORE EMERGENCY ROOM MALPRACTICE

They Missed the Brain Tumor


Right in Front of Their Eyes

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


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

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


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

About five months later, this woman started having


difficulty seeing out of one of her eyes. She thought she
needed eyeglasses. She went to her local eyeglass store
where an optometrist examined her and gave her a
prescription for eyeglasses. He noticed something in the
49
eye that was troubling her and suggested she see an eye
doctor for further evaluation. Shortly afterward, she made
an appointment with a local eye doctor who also noticed
something abnormal. By this time, her vision was getting
worse by the day. It got so bad that this woman could
barely see anything out of her eye. Her eye doctor ordered
an MRI.

The MRI showed that there was a brain tumor compressing


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

The patient made arrangements to send her MRI and MRI


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

“You were never given a copy of this report?” asked the


eye doctor with disbelief. “No, they told me my MRI was
normal,” said the patient. “Did anyone ever call you from
the hospital and tell you to return for follow-up treatment
regarding this mass in your brain?” asked the eye doctor.
“Nobody from the hospital ever called me,” responded
the patient.

What this patient learned after coming to us to investigate her


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

50
If this observation had been communicated to the patient,
she would have had elective surgery to remove the tumor (it
was a benign tumor that was creating a mass-effect, causing
compression on all the structures surrounding the tumor).
The tumor would have been removed before it started to
change her vision in one eye. Over the five months since the
car accident, the tumor had grown so large as to cut off the
blood supply in the optic nerve, causing her to go blind on
that one eye.

Even though this woman had surgery to remove the tumor,


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

The big problem was that nobody in the hospital


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

Here, the tumor was right in front of the doctors’ eyes. Yet
nobody ever told the patient she had this tumor. As a result,
the tumor continued to grow causing the optic nerve to die.
This patient lost vision in her eye solely as a result of the
mistakes made by the doctors in the hospital. This was a

51
preventable occurrence. Unfortunately for this patient, she
will never regain her sight.

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


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

52
Chapter 15
Failure To Diagnose A Heart Attack

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

In one of two ways:

1. He fails to recognize the signs and symptoms of an


impending heart attack, or an ongoing heart attack,
or

2. He fails to properly interpret the tests that were


taken.

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


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

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


mean? The doctors refer to a heart attack as a “myocardial
infarction.” It basically means one of two things: (1) That
part of your heart muscle has died, or (2) The blood vessel(s)
that supply the heart with blood and oxygen has been cut off,
causing part of your heart to starve and possibly die.
53
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’.

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?

54
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.

Recently, I had the privilege of representing a young man


whose cardiac condition was misdiagnosed. He had gone to
a hospital with complaints of chest pain that was incorrectly
diagnosed. He was told to follow-up with his cardiologist
to address his ongoing complaints of chest pain. Three
months later, this young man suffered a devastating heart
attack, killing off a large part of his heart muscle. When
the records were reviewed by cardiologists (heart doctors)
we learned that the doctors initially misread the diagnostic
tests that were performed, and missed the key opportunity
to perform elective heart bypass surgery. As a result of that
failure, months went by where the young man continued
to complain of chest pain. The heart attack has destroyed
this man’s life. Unfortunately for him, his heart attack was
totally preventable.
55
A heart attack may be preventable. Let your lawyer know
what symptoms, if any, you had when you saw your doctor
and what was done for you. Tell your attorney the details of
what went on in the emergency room and what tests they
performed to find out if you had or were having a heart
attack. Prevention is always best. Knowing that a heart attack
could have been prevented is second best.

56
Chapter 16
BIRTH INJURY CASES

Shoulder Dystocia & Erbs Palsy

Shoulder dystocia occurs when the baby gets stuck behind


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

Applying excessive lateral traction to the baby’s head when


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

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

1. A “woods maneuver,” also known as a “corkscrew”


maneuver. This rotates the baby to move the stuck
shoulder away from the obstruction.
57
2. If the “Woods” maneuver doesn’t work, then they can
try a “Rubin” maneuver. This rotates the baby in the
opposite direction.

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


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

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


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

5. Another maneuver is applying suprapubic pressure.


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

6. An episiotomy (an intentional cut made by the


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

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
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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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Chapter 17
“REJECTED”

7 Reasons Why Your Case Isn’t Good Enough For A


New York Medical Malpractice Lawyer

1. Your injuries are not significant.

In a medical malpractice case in New York the injuries


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

2. You exaggerate and lie.

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


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

The attorney may be on the fence about your case.


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

4. You are demanding.

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


a customer demand food, utensils, a service in a loud and
obnoxious voice? Sure you have. We all have. How about the
demanding customer who treats the store clerk or waitress
like they are hired help with their sole purpose in life is to
serve this one customer? How do you think the store clerk
or waitress feels when a demanding customer comes in? Of
course the ‘customer is always right’, but how much abuse
can a person take before saying something?

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

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

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


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

6. You think you know more about lawsuits and


trials than your New York Medical Malpractice
Trial lawyer.

Unless you’ve gone to law school and have practiced law


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

7. You are a repeat litigator with multiple small


lawsuits.

There are some people who make a hobby out of bringing


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

Conclusion

Hopefully this will give you some insight into what an


experienced New York medical malpractice & accident
attorney looks for when you walk into his office.
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Chapter 18
DEATH CASES

Dead Man’s Family Calls New York Medical


Malpractice Lawyer First Before Burying Him

This is a true story

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


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

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


lawyer within minutes of their loved one having died, and
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,
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his wife decided to hold off calling a medical malpractice
lawyer in New York until he died. She didn’t want to trouble
her husband with the horrible realization that he was dying
because a doctor failed to diagnose his lung cancer.

The first question she asked was whether an autopsy should


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

An autopsy is a detailed physical examination of a person


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

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


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

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


properly and professionally by a physician with experience,
the autopsy can yield a great deal of useful information.
However, an autopsy is a double-edged sword when
evaluating its’ usefulness in a potential wrongful death case.
Typically, an autopsy will determine why a person died. In
many death cases, the autopsy provides not only valuable
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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.

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
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difference is significant and can mean the difference between
a valid malpractice case or one that has no merit.

By the time I was finished talking to this clearly distraught


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

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Chapter 19
INJURED AT BIRTH

Fetal Distress, Hypoxia & Anoxia


- A Case Report -

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


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

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

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

Unfortunately for this mother, her child was deprived of


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

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


is a term doctors use to mean “lack of oxygen.” Either
condition is extremely bad for the baby since our brains
require oxygen to survive. If the baby’s brain is deprived
of oxygen of a period of time, the baby can experience
permanent and irreversible brain damage.

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


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

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Chapter 20
NERVE INJURIES

Improperly Placed Suture Causes


Permanent Nerve Damage

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


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

After the bleeding was initially controlled, another doctor


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

Importantly, while the patient was being stitched up, he


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

The patient returned to the hospital, where it took some


coercion to get the clinic residents to evaluate his hand.
Despite the patient’s complaints, he was sent home, and told
it normal to have this pain following such an accident. Two
days later, the numbness and inability to move the fourth and
fifth fingers brought the patient back to the hospital clinic.
Again, nobody recognized that the young man’s ulnar nerve
was dying off before their eyes.

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


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

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


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

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

The moral of this tragic story is that this injury was totally
preventable. Had the emergency room doctor been careful
in placing those stitches, and had the clinic residents
recognized the signs of nerve damage two days after the
accident, this event leading to permanent nerve damage
never would have happened.

End Result

Through extensive investigation and many depositions, I was


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

The case settled favorably during jury selection.

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Chapter 21
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.

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

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


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

I have heard the phrase that “Pain is life’s window into


hell.” People in pain often do everything they can to get
rid of the pain. Pain limits us from moving and using
our body and it prevents us from living a full life. Our
body is incredible. We 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 experienced. She’ll probably tell
you what a joyous event it was. The pain is immediate,
and after the terrible pain passes, she, as most of us do,
will tend to put aside the horrible, painful period of time
our lives were made miserable.

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

What happens though when an injured victim continues to


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

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


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

Compensation is an obligation by the wrongdoer to pay the


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

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Chapter 22
MORE BIRTH INJURIES

Your Child’s Been Diagnosed With Brain Damage


and Cerebral Palsy

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


are not that strong and you feel the baby moving. The doctor
gives you medicine to increase your contractions, usually
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.
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Failure to intervene can have devastating consequences for
the baby.

A baby whose heart rate is very low for a long period of


time may develop ‘hypoxia’, a lack of oxygen to the baby’s
brain and other vital organs. Other times, there may be
a complete blockage of blood flow causing anoxia, or an
absence of oxygen.

Oxygen is crucial for life. Diminished oxygen or lack of


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

A parent will learn of a baby’s brain injury after birth, either


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

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


and “How did this happen?”

Questions to think about include:

• Can my child hold her head up?


• Can she hear me?
• See me?
• Does she grasp?
• Can she eat on her own?
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• 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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Chapter 23
BREAST CANCER

Do You Really Think Your Doctor Misdiagnosed


Your 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?

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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?

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.

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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 treatment
and outcome would have been different.

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Chapter 24
PODIATRY CASES

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” procedures. Patients get
lulled into a false sense of simplicity and assume that it’s a
‘quick’ procedure and they’ll be up on their feet in days.

That’s not always the case where bone is removed from one’s
toes. In some cases the remaining ends of bone must be
connected together with wires, usually known as ‘k-wires’. If
those wires are removed prematurely, the bones may become
unstable and heal in an unnatural and awkward position,
leaving you with a permanent deformity. In other cases, a
doctor may take too much bone off, leaving you with an
overly-shortened toe which sticks up in the air.
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Why are podiatric mishaps so significant? Here’s a good
analogy: When you build a house, you first need a good
foundation. You can then build layer upon layer on top
of that foundation without fear the house will collapse.
When dealing with feet, if you damage your ability to walk
or stand, your entire skeleton and muscles will now shift
to accommodate your changed in gait (the way you walk)
and your legs will begin to hurt as well as your back. Your
‘foundation’ will be affected, placing undue stress on other
areas of your musculo-skeletal system.

What’s the alternative to having surgery to correct those


bunions, hammertoes and corns? The first line of defense
is called ‘conservative treatment’. This includes modifying
your shoe gear. It also includes using orthotics, also known
as shoe inserts. Those shoe inserts can be bought from your
pharmacy, over the counter, or can be custom made. In any
event, they’re certainly worthwhile as an attempt to reduce
the pressure placed on your foot. In the event the orthotics
do not work, podiatrists may sometimes try giving you anti-
inflammatory medication or a course of steroid injections to
reduce inflammation and associated pain.

If after those ‘conservative treatments’ you still have problems,


you will probably be asked to consider having surgery to
correct your bunion, hammertoe or corn. Before you agree
to have surgery, make sure to ask your foot doctor about the
risks and benefits to the procedure. Ask how long you’ll be off
your feet (this is known as being non-weight bearing). How
long will you be on crutches? Importantly, get references of
other patients who have had this procedure with this doctor.
Learn as much as you can about the doctor and the type of
procedure that’s being recommended. Only by being fully
informed can you make an intelligent decision about what
procedure is right for you.
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You may also want to get a second opinion, just to make sure
this is the correct procedure for you. I hope these tips make
you informed about your choices.

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90
Chapter 25
Your Doctor Was Sued, Is He Still a
Good Doctor?

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

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

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


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

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


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

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“But what if a juror just isn’t sure about the injured victim’s
claim? What happens then?” The answer is that a juror does
not have to be absolutely sure. Instead, the juror just needs
to determine whether what the plaintiff (the injured person
bringing the lawsuit) is saying is more likely true than not
true. If it is, then the jury is required to render a decision in
favor of the plaintiff.

During jury selection, a good trial lawyer may tell prospective


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

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


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

On the other hand, it may.

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


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

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Chapter 26
When Is The Worst Time To Be A Patient
In A Hospital In New York?

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


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

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


ones to deal with much of the ‘scut work’ that the senior
residents do not want to do. Many are overwhelmed and
mistakes do happen more often during these months by the
interns than at other times of the year. There is a significant
learning curve that each resident goes through in order to
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gain enough experience to be confident in their decision
making abilities. If you are a patient in a hospital during this
time, make sure you have a family member be your advocate.
Check and question everything from pills that you receive to
the medicine in the IV bag. Ask lots of questions and find out
what alternatives are available. Importantly, ask the “rookies”
is they’ve discussed your care with the attending physician
and whether he or she agrees with the plan.

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Chapter 27
Thinking of Going to a Solo
Practitioner? Read This Article

“They Laughed When I Told Them


I’m Using a Solo Practitioner”

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


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

“How can you hire a one-man law firm?” one of her friends
asked. “What happens if he gets sick?” asked another. “How
does he have the resources that a large firm has?” said another
good friend. “What is it about him that made you choose
him over the other law firms you looked into?”

The answers were revealing.

She told her well-meaning friends that I was the only lawyer
who provided information to her before she ever came into
my office. None of the other law firms she spoke to would
give her any information about cases like hers. In fact, out of
five New York law firms she contacted, I was the only lawyer
who actually got on the phone to talk to her. All the other
calls were intercepted by receptionists who wanted to set up
an appointment for her instead.
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She explained to her friends that on my web site I gave
free reports about how medical malpractice cases work.
This was new to her and the information was very helpful
to understand how a case works. She was also grateful to
learn how a lawyer actually evaluates a potential medical
malpractice case in New York. Before looking at my web site,
she had preconceived ideas about what types of cases are
accepted by injury and accident lawyers in New York. My
reports helped her understand the procedure a lawyer must
go through to determine whether someone has a valid case.

This woman explained to her friends that she had spoken to a


paralegal at one of the big law firms in New York City about
how they communicate with their clients. This is what she
was told: “You’ll meet an associate when you first come to us.
They’ll gather all the information about your case. Once we
get your records and determine that you have a valid case,
your matter will be assigned to a team of lawyers consisting
of a senior trial lawyer, an associate and a paralegal.” When
she asked when she’d get to meet with the senior trial lawyer,
she was told that only if her case went to trial would she
meet with him. Otherwise she’d be dealing with the associate
on day-to-day matters. The paralegal was very flip about
how simple it was to get information from her and from the
associate. “Don’t worry, we know exactly what’s going on
with your case every day,” was her comment.

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

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


about a potential case.”

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“Do you know her name?” “No.”

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


your last name?”

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


speak to the person she spoke to earlier.

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

However, many attorneys refuse to discuss anything with a


potential client until they walk in the door of their office.

What this young woman found particularly helpful were the


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

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

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


with your case.”

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


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

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


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

This woman asked me during our first meeting “How


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

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


large law firm in New York City and help pay for their fancy
offices and beautiful mahogany furnishings and gorgeous
floor-to-ceiling windows with offices looking out over the
city, then by all means she should go there. However, I also
told her that those beautiful offices don’t win lawsuits. It is
the attorney who occupies a particular office that wins cases.
Regardless of whether that office is in Manhattan or Long
Island. “If you want to be another fish in the ocean, I’m sure
you will be very happy with that law firm. If however you
want to have personal attention every step of the way, then a
small law firm is the one for you.”

I am pleased to say that this woman was extremely happy


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

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About the Author
GERRY OGINSKI

Gerry Oginski is an experienced medical malpractice &


personal injury trial lawyer practicing law in Brooklyn,
Bronx, Queens, New York, Staten Island, Nassau, Suffolk &
Long Island and has been in practice since 1988.

He is a graduate of Touro College, Jacob Fuchsberg College


of Law in Huntington, NY and he is admitted to practice
law in New York and Connecticut. His main office is located
in Great Neck, Long Island, and he has affiliate offices in
Brooklyn and Staten Island.

Gerry prides himself on knowing all the details of each case


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

Gerry has become a prolific writer and publishes a monthly


newsletter full of legal news, fun trivia games, and a never-
ending fictional story that has won him accolades with all
who read his newsletter. In addition to his newsletter, he has
produced and created an entire video library of instructional
videos that help consumers learn about medical malpractice
and accident law in New York.
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Gerry welcomes all calls about any accident or injury from
a doctor or hospital in the State of New York. He promises
to give you a straightforward and honest answer about every
question you ask. Take a look at his web site, where he has
over 250 FAQ’s, free reports about medical malpractice,
wrongful death and accident cases, actual testimony of
doctors in cases he’s handled, and an entire video library you
really should see.

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


free information about medical malpractice and accident
law and when you’ve finished reading his blog at

http://www.nymedicalmalpracticeblog.com,
then jump over to his video blog
where he has most of his videos posted at
http://www.nymedicalmalpracticevideoblog.com
and also
http://www.medicalmalpracticetutorial.com.

You’ll be glad you did.

Gerry is also a member of the following


legal organizations:

• New York State Academy of Trial Lawyers


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

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Community Services

As part of giving back to the community, Attorney Oginski


has lectured to high school students interested in medicine.
Here’s what these students had to say: “Dear Mr. Oginski,
Thank you for taking the time on Wednesday, January 21, to
meet with the Medical Explorers and to explain your career
to us. We found it very interesting that you had started out
going to school as a Pre-Med student and ended up studying
law. Through your experience, we were able to learn that
we can still be involved in medicine without necessarily
becoming doctors. Your description of the anatomy of a
malpractice suit was fascinating! We did not realize the
amount of investigational and procedural work needed to
even file a complaint, let alone argue the Plaintiff ’s case. It
is amazing how much time and effort goes into proving a
doctor’s departure from good care at one particular moment,
on one particular day. The tips you gave us on how to
practice aggressive medicine were very informative. We now
have a greater understanding as to the importance of writing
things down and keeping good records. It did not occur to us
how crucial minor notes could be in a malpractice lawsuit.
Once again, thank you for coming to speak with us; it was
a pleasure to have you! Sincerely, Amanda G., Secretary,
Medical Explorers.”

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TESTIMONIALS

Read what others have said about


Gerry’s Legal Services

“You did an exceptional job...”

“Your level of expertise was apparent from the beginning...”

“Your professionalism was outstanding.”

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


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

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

The overall efficiency of your office was stupendous,


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

Gerry was friendly and caring and made me feel comfortable


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

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


will have the best representation available anywhere.

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

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“Mr. Oginski always made me feel that I was very important
to him...”

My first visit with Gerry Oginski was a little overwhelming since


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

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

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


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

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

- Dina Martirano, Westchester, NY

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“This was a great accomplishment that was made possible by
your dedication”

“We truly felt as though we were being helped by a good


friend”

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

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

“Thank you for being the person you are.”

“You showed us you cared, not only about us, but our
mother.”

How can I find the right words to thank you? Your kindness
and caring meant so much to my sisters and I. Thank you for
being the person you are. You are a wonderful young man.
My mother must have sent you to us. You always knew the
perfect words to make us feel better. Thank you for working
so hard to see that justice was done for our mother. I feel like
a bond was formed between us. You showed us you cared, not
only about us, but our mother. I thank you from the bottom of
my heart. May god bless you and your family.

- Barbara Piekarz, Brooklyn, NY

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“I am confident that Gerry was totally dedicated to the most
favorable outcome possible.”

It is with total respect and appreciation for Mr. Oginski


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

- Millie Provenzano, Staten Island, NY

“...We would definitely recommend him to a friend or family


member in need of his services.”

From the very beginning, Gerry displayed very good


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

- Joseph MJU, Atlanta, Georgia

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“I am very grateful for all they have done for me...”

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


knowledgeable when they advised me throughout the process.
Their help made the process run very smooth. I am very
grateful for all they have done for me and am very happy with
the outcome of my settlement.

- Susan Choinski, New Hyde Park, NY

“It did not take me long to realize that I was in excellent


hands...”

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


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

Thankfully and sincerely yours,

- Mitchell Bartnicki, Brooklyn, NY

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“I miss your smile and your beautiful personality, and your
great suits.”

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


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

Love you,
- Arlene D., Brooklyn, NY

“ It is so soothing to know a person so caring...” Thank you


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

- Mircela Nita, Queens, NY

“I would strongly recommend you...”

I was very pleased with your professionalism & courtesy that


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

- Johnny Celestin, Queens, NY

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“Gerry was very thorough, efficient, swift & precise. All of
these words define excellence.”

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


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

- Jeanette Mason, Brooklyn, NY

“He was a true professional and extremely knowledgeable.”

Mr. Oginski kept us abreast of all issues and matters. He


was a true professional and extremely knowledgeable. The
settlement, given our circumstances, was very acceptable.

- Anthony Gonzalez, Queens, NY

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“I am able to pay my medical bills because of the great work
you put into this case.”

This letter is to express my greatest appreciation and


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

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


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

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


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

- Donna L. Williams, Brooklyn, NY

“I liked your smile when you greeted us, and I felt proud that
you were our lawyer.”

The process I went through was made easy because of you


Gerry and Frances. I think you got us a good settlement, and
I know you worked hard for us. I liked your smile when you
greeted us, and I felt proud that you were our lawyer. I also
liked your suits, you always looked so handsome in them. God
bless you and your family.

- Arlene DiFalco, Brooklyn, NY

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“You made everything flow and very easy. Your law office is
the definition of what an ideal legal professional should be.”

Going through the litigation process was difficult because I


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

- S.P., New York, NY

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


did not have merit:

“Dear Mr. Oginski,

I can’t thank you enough for sending me the most helpful


package of information concerning medical malpractice. It
has heightened my awareness to a degree of confidence that
will allow me to make more informed decisions.”

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

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“Gerry impresses me constantly,...”

“Gerry impresses me constantly, I have known him and actively


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

- Tom Foster, Washington, D.C.

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Contact Information

The Law Office of Gerald M. Oginski, LLC


25 Great Neck Road, Suite 4
Great Neck, N.Y. 11021

For answers to your legal questions, call Gerry personally.


He welcomes your call.

516-487-8207
e-mail: lawmed10@yahoo.com

Visit Gerry’s educational and popular web site to learn more


about wrongful death, medical malpractice & accident law in
the State of New York.

I guarantee there’s something there for you.

www.oginski-law.com

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