The Law Office Of Gerald Oginski, LLC

You need surgery. You're worried. You have a consultation in the surgeon's office. You're by yourself. The surgeon tells you what he plans on doing. The medical terms are confusing. The procedure is difficult to understand. All you want to know is whether you'll be ok. The surgeon keeps reassuring you, and on the way home you do not even remember if he discussed any alternative treatment that you could have. You think he did, but you're just not sure.

You like the surgeon. He's confident. He's suave. He talks like he knows what he's doing. "OK, I'll have the surgery with him," you say to yourself.

AFTER THE SURGERY

You learn you had an unfortunate complication. The surgeon cut part of your anatomy that he should not have touched. You then needed corrective surgery and can expect to be in the hospital for another three weeks. The surgeon tells you this was a "recognized risk" of the surgery.

"But you didn't tell me this could happen," you protest. The surgeon insists that he told you very clearly on that first consultation exactly what the risks, benefits, options and alternatives were. "Don't you remember?" he asks. "You were sitting in my chair, you had on a black sweater and black pants. You had a long coat with you and you were visibly upset." In the back of your mind you have a vague memory of talking about risks, but you just do not remember.

THE SOLUTION

Whenever possible, bring a family member to an important doctor's visit. It's natural to be worried and thinking about how your treatment will affect your health. Many of us forget to ask questions while we're in the doctor's office. How can you be expected to remember everything the doctor said while your mind was racing elsewhere?

If you bring a trusted family member, they can help you recall the conversation about any risks, benefits and alternatives that was discussed with the doctor. This way you'll be in a better position to make an informed decision about whether the proposed treatment is right for you.

About Gerry

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice, wrongful death and injury cases since 1988. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

For more information, call Gerry personally at 516-487-8207 for answers to your legal questions.

Also, go over to http://medicalmalpracticetutorial.blogspot.com for Gerry's free instructional videos on New York Medical Malpractice, Wrongful Death & Accident law.

11/17/2008
Gerry Oginski
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NEW YORK MEDICAL MALPRACTICE-Are Injured Victims Money Hungry?

If you believe all they hype by "tort-reform" zealots, every injured victim is a 'money-hungry, selfish and health-care destroying monster."

Contrary to all the hype, practically every single injured medical malpractice victim who walks in my door is just the opposite. Here's what I mean:

The people who come to me never started off their medical treatment by looking for a lawsuit. Instead, they went to a doctor or hospital to get better; to get treatment they needed; or to get checked to make sure they did not have any dangerous medical condition. They did not go to the doctor's office hoping the doctor would do something wrong, and cause them serious permanent harm. They didn't go to the doctor's office hoping the doctor would screw up and they would 'rake in the cash'! Nobody is that foolish. In fact, almost every person who comes to me for advice is almost apologetic that they're coming in searching for answers. Many potential clients tell me "We're not looking for money...we just want justice." "We want to make sure this never happens again..."

It is days, weeks and months later do these potential clients wonder how they will survive financially as a result of their diminished earning capacity and their lost time from work. Who will pay for their health insurance premiums if they cannot work? Who will buy the groceries, pay the mortgage, the medical bills? How will they pay for their children's school tuition and camp if they cannot return to work? Those thoughts usually come after the healing process, assuming there is one.

There are many "reformists" who argue that there should be an artificial and arbitrary limit to an injured victims' pain and suffering compensation. Does that mean that even when an injured victim has unrelenting pain that never goes away and limits their daily activities, that the most compensation they can receive is an arbitrary number created by someone who has never had that type of pain? Is that fair?

Does a patient seeking a doctor's help truly seek to destroy the health-care system and how insurance companies reimburse doctors? The patient just wants to get better. They want treatment that will let them continue on with their lives unobstructed and free from limitation. Does a patient want a doctor to commit malpractice so his or her life can be destroyed and ruin his job and his family life just to bring a lawsuit? Such thinking is incomprehensible.

On the other hand, I am sure there are many good physicians who wake up each morning and say to themselves "I'm going to do the best I can today." I don't expect there are any physicians who wake up and say "Let's see how many patients I can screw up today so they can sue me for medical malpractice."

However, malpractice occurs when a physician is careless and departs from good and accepted medical care in the State of New York; when there is a lack of communication; where someone drops the ball and misinterprets a radiology report or a pathology report leading to incorrect or improper treatment. A failure to diagnose is always significant, especially if the failure leads to the patient needing additional treatment that otherwise he would not have needed if the condition had been timely and properly diagnosed.

Surgery and anesthesia errors are always signficiant. Many of those mistakes lead to the patient needing additional corrective surgery, or possibly lead to an untimely and wrongful death. Having practiced personal injury law and medical malpractice law for almost twenty years now in the greater New York metropolitan area, I recognize that medical mistakes and errors happens with doctors that are board certified as well as doctors that are not board certified. There are excellent doctors who are well qualified, yet in some cases, those doctors may be careless and that carelessness may have caused significant harm to the patient.

Getting back to the original premise of this article: Are injured medical malpractice victims 'money-grubbing, selfish, health-care destroying' people? Or are they just stuck in the unfortunate position of having been the recipient of improper medical care that has now turned their life upside-down? You decide.

I hope that all of your medical care goes well and you do not need the services of an experienced medical malpractice lawyer practicing law here in the State of New York.

11/17/2008
Gerry Oginski
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New York Medical Malpractice-More Examples of Malpractice

Is it malpractice if a patient has a routine chest x-ray and is told it is normal, only to learn two years later that the x-ray was misread. Had it been correctly read, the patient could have had a minimal surgery to remove the cancer, except now the cancer has spread throughout her entire body.

Is it malpractice if a radiologist fails to tell a patient about a brain tumor that he clearly observed? What if the delay in telling the patient caused this patient to lose total vision in her eye that could have been prevented had she been operated on before the tumor cut off the blood supply to the optic nerve.

Is it medical negligence if a doctor in an emergency room ignores a patient's complaints of belly and back pain and never takes a pregnancy test and fails to recognize a pregnancy in the woman's fallopian tube causing it to rupture two days later?

Is it a medical mistake for a doctor doing laparoscopic surgery to fail to recognize that he perforated the patient's intestines during the surgery. Had the hole been recognized during the initial surgery, the patient would not have needed additional corrective surgery a week later.

What do you think about an emergency room doctor who, while sewing up a large laceration, ties off the patient's nerve instead of his artery, and fails to recognize the nerve injury until the nerve had died off.

Maybe this one will cause you to pause- a patient on dialysis complains to the nurse that he thinks his shunt (the place where they attach the dialysis tubing to his arm) is infected. The nurse poo-poo's the patient, and goes about her routine of setting the patient up for his three-hour dialysis treatment. The patient returns home and upon entering his home, his shunt, which is connected directly to his artery bursts open. Despite every effort to apply pressure to the open wound, the pumping artery is so forceful that the patient bleeds to death in minutes. Police arriving at the home thought they stumbled onto a murder scene. The unfortunate reality was that had the infection been recognized, the patient would have been admitted to the hospital, treated, and the shunt never would have ruptured leading to his death.

Is it malpractice for a doctor to fail to recognize fetal distress? Where a baby is about to be born, is it medical error for the nurses and doctors to ignore a patient to the point where the baby is not getting enough oxygen prior to delivery and no effort is made to get the baby out emergently?

How about the case of a woman who was told she would die from cancer if she did not have a hysterectomy? She was only 29 years old at the time. Unfortunately, after the surgery, the pathology showed no evidence of cancer anywhere. In other words, her hysterectomy was totally unnecessary.

Is it malpractice when an orthopedist continues to give medication to a patient for back and hip pain and never tells the patient the risks or side effects of the medication? The patient suffered a massive rupture of his gastric ulcer causing him to bleed to death. Had he known these side effects, he never would have taken this medication.

Do you think it is medical neglect when a young man goes for "simple, routine" hernia surgery and the patient dies because the anesthesiologist fails to recognize that he gave the patient too much anesthesia?

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.

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice, wrongful death and injury cases since 1988. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 250 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something for you. For more information, call him personally at 516-487-8207.

Also, go over to http://medicalmalpracticetutorial.blogspot.com for Gerry's free instructional videos on New York Medical Malpractice & accident law.

11/17/2008
Gerry Oginski
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BROOKLYN MEDICAL MALPRACTICE LAWYER PROVIDES MONTHLY UPDATES TO CLIENTS

Before you hire an attorney practicing in Brooklyn for your medical malpractice matter, ask them this important question: "How often do you update your clients?" Why is this important? Because many lawyers are so busy they do not have time to provide regular written updates to their clients. Many lawyers believe that if a client wants to know what is going on, they can call to find out. However, contrary to this thinking, I believe it is extremely important to keep clients informed about everything that is going on with their case, and to provide written updates on a regular basis.

Many clients think that if they do not hear from their attorney, then nothing is happening with their case, and their case is just lying around with nothing getting done. This is not always true. But if the client is not informed about what is happening, how are they to really know what is going on with their case? Most good, experienced medical malpractice lawyers who practice law in Kings County, also known as Brooklyn, make great efforts to keep their clients apprised of new developments in their case. There are many different ways to communicate with a client including, sending letters, calling, sending email, and in-office consultations. In my practice I make it a point of sending monthly updates to each and every client to let them know what is happening on their case.

Often, a lot of work is going on in their case that involves paperwork and motions to the court and exchanges of documents and authorizations for medical records. These are tedious but necessary things that go on in every case. I believe that clients are entitled and actually want to know what happens on a day-to-day basis on their case. They really are starved for information. In addition to monthly written updates, I will call clients when possible, and also email them to discuss the different stages of their case. I know lawyers who just do not have the time, energy, manpower or desire to send regular updates to their clients. As long as the client knows that, and is OK with it, then it is fine. However, I find that an informed client is a happier client and knows that I am actually working and thinking about their case.

11/17/2008
Gerry Oginski
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New York Medical Malpractice- Failure To Supervise Leads To Re-Breaking Bone

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 and evaluation of the 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.

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.

About Gerry:

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. He started his legal career working for a defense firm on Wall Street representing doctors, hospitals and businesses who were sued. Four years later he felt the gravitational pull to represent injured victims of medical negligence and accidents. After doing defense work, he joined a personal injury law firm in Brooklyn, NY representing injured victims, and then four years later, joined forces with a large law firm in Queens, NY. While there, he was in charge of the medical malpractice department, and in 2002 opened his own office for the practice of law. His main office is located in Great Neck, Long Island, and he has affiliate offices in Brooklyn and Staten Island.

Gerry prides himself on knowing all the details of each case he handles. Cases are not handed off to associates. When a client calls, he doesn't need to check a file to determine what happened last on the client's case. He knows what happened, since he was the one who handled the matter.

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

Gerry welcomes all calls about any accident or injury from a doctor or hospital in the State of New York. He promises to give you a straightforward and honest answer about every question you ask. Take a look at his website, where he has over 200 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://nymedicalmalpractice.blogspot.com, jump over to his video blog where he has most of his videos posted at http://medicalmalpracticetutorial.blogspot.com - you'll be glad you did.

11/17/2008
Gerry Oginski
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NY MEDICAL MALPRACTICE-20 Reasons Not to Bring a Malpractice Lawsuit in New York

1. Nothing was done wrong to you.

It goes without saying that if the doctor or hospital did nothing wrong, then you absolutely have no business bringing a lawsuit against them.

2. You did not get hurt.

Likewise, if a doctor did not treat you properly, but you did not suffer any injury as a result of that wrongdoing, then you have no business bringing a lawsuit seeking compensation. Remember, in any medical malpractice lawsuit in New York, your attorney must prove (1) wrongdoing, (2) that the wrongdoing caused harm, and (3) that the harm is significant and permanent. All three of those elements must be confirmed by a doctor who has either treated you, or evaluated your medical records. If any one of those elements is missing, then it will be difficult, if not impossible to bring a successful case on your behalf.

3. You do not have a long-term permanent injury or permanent disability.

This relates to element #3 discussed in the paragraph above. You might have suffered a minor injury from a doctor's or hospital's wrongdoing, but if the injury is not significant or disabling, most experienced NY medical malpractice lawyers will likely decline to handle your matter.

4. You think that if you sue your local hospital, you will not be allowed to return there for any additional treatment you may need.

In all likelihood, this is not true. A hospital cannot discriminate against you, even though you have sued the hospital for medical malpractice. They are obligated to treat every patient who walks into the emergency room. An issue might arise if you are going for elective treatment or surgery and the hospital is a private hospital that you have sued. In all probability, you will be able to continue receiving treatment at that hospital. In fact, defense attorneys like to make the argument "Can you believe this? Mr. Jones has sued our hospital, telling the world that our hospital did wrong by him. Yet he still returns to our terrible hospital for ongoing treatment of his current medical condition. What does that tell you about his trust in our cherished medical facility? He has no trust in our doctors and nurses, yet he continues to rely on them for his care and treatment."

5. You like your doctor.

Sure, who doesn't? Yet on a particular day, at a particular time, your physician may have departed from good and accepted medical care causing you permanent harm. Should your feelings toward the doctor affect your ability to decide whether you are legally entitled to be compensated for your permanent injuries? You must decide whether you are able to do this.

6. You are not interested in money.

Virtually every single person who comes into my office tells me this. Most come in because they want the doctor's license revoked, or they want to make sure this problem never arises again. It is only when the victim realizes the true extent of the injury do they realize that their suffering is worthy of compensation.

7. You think a lawsuit will make you rich.

Nobody ever got rich bringing a medical malpractice lawsuit seeking compensation. Newspapers love to publicize large verdicts because it generates polarizing feelings which in turn sell newspapers. What many papers do not often publicize is that most large verdicts are reduced on appeal. "Tort reformers" use those headlines of large verdicts to support their arguments that juries award "runaway verdicts" and the medical malpractice laws need to be changed. I will tell you that every single person who comes into my office has clearly said that they would rather have their health than any amount of compensation from a medical malpractice, wrongful death or accident lawsuit.

8. You think your lawyer will be able to settle your case quickly by pressuring the insurance company with their skills.

If a lawyer tells you they can get you a quick settlement in your medical malpractice case, I suggest you walk- no, run, in the other direction. Ask that lawyer how long they have been representing injured victims in medical malpractice cases in the State of New York. Ask that same lawyer how many insurance companies there are in NY that represent doctors and hospitals. Then ask how many years it takes to bring a medical malpractice lawsuit to a conclusion. I will tell you that I have been in practice almost 20 years in New York, handling accident and medical malpractice cases. Malpractice cases are NEVER resolved quickly. They are the most hard-fought cases. The defense lawyers are among the best in the business. The only time a malpractice case gets settled quickly is if there is no dispute about who caused the harm, and no dispute about the extent of the injuries and damages. I will also tell you that damages (the amount of money you might receive as compensation) are always hotly contested. Your lawyer's skills might be impressive. However, don't be too impressed by any promises to settle your medical malpractice case quickly. It simply will not happen.

9. You think your case is unique and the doctor's insurance company has never seen such injuries as yours.

This is wishful thinking. The insurance company has databases of every case that has ever been brought against the doctors and hospitals they represent. They know who the lawyers are. They know what similar cases have settled for. They know what juries award for similar injuries. An insurance company never has any incentive to settle a case unless the prospect of going to trial is much riskier than trying to settle prior to, or during trial.

10. Your friends will think you are a moral sinkhole for suing your doctor or hospital.

Are you really that worried about what your friends think? Do they sit home every day wondering when they'll be able to return to work and support their family? Do they have to have three corrective surgeries to get them up and walking again? Have they been to the rehabilitation facility like you have. Do they have to do all those painful exercises that teach you how to walk again? Will you be able to play sports again? I ask you again, are you really worried about what your friends think of you? Do they see what you have to endure every day and night? You decide.

11. You have enough money to make up for your lost wages while you were out of work recuperating.

Why should you have to use up your savings to pay your living expenses, when you believe the doctor or hospital caused your injuries? The wrongdoer is supposed to be held accountable for their actions. If they did the wrong thing, and now you are suffering for it, they are supposed to pay to compensate you. You should not be using your money.

12. You have enough money saved up to pay for all of your medical and hospital bills for the rest of your life.

Your medical bills may be very significant. What if your health insurance company will not pay for some or most of your bills? Do you think it is fair that you, the injured victim should have to pay these bills out of your own pocket? The person or hospital should pay for these expenses.

13. You know that you will always have a job, and therefore always have health insurance to help pay for your ongoing medical needs for the rest of your life.

If you believe this, then I have a bridge to sell to you.

14. You do not want your neighbors accusing you of bringing a "frivolous lawsuit."

This brings me back to what I said earlier- Do you really care what your neighbors think?

15. You know the doctor did something wrong, but you're just not the kind of person to sue, even though you are now blind because of the wrongdoing.

Many immigrants feel this way. They come to this Country with thanks and much gratitude for the opportunity to make a better life here in the United States, and especially here in New York. Despite these feelings, every person in the State of New York, regardless of whether you are an immigrant or a lifelong resident of this great state has legal rights. An injured victim's right to sue and seek monetary compensation is the fundamental backbone of our civil justice system.

16. The money you might receive will never make you "whole" again.

In our civil justice system in NY, money is the only way that we as a society can compensate an injured victim. We cannot put you back together again as if your injury never happened. It may not be a perfect system, but it is the best system we have.

17. A lawsuit will not bring back your wife.

That is true. However, it will compensate you and your family for her suffering and the pain she endured while alive. It will compensate you and your family for the financial loss that your family suffered after your wife died. It will compensate your family for the loss of a wife, mother and friend. Can you ever put a price on the value of a mother?

18. "What good will the money do for me?"

See paragraph 17 above.

19. "In my family, we don't do such things."

See paragraph 15 above.

20. "I don't want this to happen to anyone else, but I'd feel bad suing my doctor."

Compensation is designed to have a two-fold effect: (1) Compensate you for your actual damages and (2) Compel the doctor to change his or her ways. If your sole goal is to make sure that the doctor or hospital does not commit the same errors that caused you harm, then a lawsuit might not be the way for you to go. Rather, you might want to file a complaint with the department of health and have them investigate to determine if there was wrongdoing. Thank you for taking the time to become informed.

About Gerry:

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. He started his legal career working for a defense firm on Wall Street representing doctors, hospitals and businesses who were sued. Four years later he felt the gravitational pull to represent injured victims of medical negligence and accidents. After doing defense work, he joined a personal injury law firm in Brooklyn, NY representing injured victims, and then four years later, joined forces with a large law firm in Queens, NY. While there, he was in charge of the medical malpractice department, and in 2002 opened his own office for the practice of law. His main office is located in Great Neck, Long Island, and he has affiliate offices in Brooklyn and Staten Island.

Gerry prides himself on knowing all the details of each case he handles. Cases are not handed off to associates. When a client calls, he doesn't need to check a file to determine what happened last on the client's case. He knows what happened, since he was the one who handled the matter.

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

Gerry welcomes all calls about any accident or injury from a doctor or hospital in the State of New York. He promises to give you a straightforward and honest answer about every question you ask. Take a look at his website, where he has over 200 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://nymedicalmalpractice.blogspot.com, jump over to his video blog where he has most of his videos posted at http://medicalmalpracticetutorial.blogspot.com - you'll be glad you did.

Negligence Cases

11/26/2008
Gerry Oginski
Comments (0)

Injured Accident Victim Says "I Want You to Call the Insurance Company NOW!"

The prospective client walked into your office and tells you that she has all the records from her case. She spoon-feeds you which records she has: The police report, the ambulance report, part of the emergency room record and one physical therapy note. "Where are the rest of the records?" you ask. "Oh those, they're not important...anyway, my prior lawyer said this was enough to start a lawsuit in New York," says the eager-to-sign prospective client.

By now, two red warning flags should have gone up.

1. That this potential client had a prior attorney, and
2. That this potential client has only some of the records, and she feels, based on someone else's advice, that this is sufficient to proceed with a personal injury lawsuit in New York.

Now, having a prior attorney is fine. The question any attorney will want to know is: Why did you leave your prior attorney? The answer to that question will tell volumes. The second issue is why is the potential client feeding you certain records and not providing you with all of the records?

The nice woman sitting in your office chair tells you that under no circumstance are you to request records from her treating primary care doctor because "I left on bad terms, and I want nothing to do with him." She also tells you that she refuses to go for a physical examination by a doctor of the defense lawyer's choosing because "my medical condition is private and nobody is going to poke and prod me in my body when I'm complaining about an injury to my head and arm."

Can you guess how this conversation is going to go?

She next tells you that "I want you to get on the phone with the insurance company immediately, because the insurance company must surely know your excellent reputation and tell them they have to come up with a lot of money to settle my case, otherwise we'll take them to trial."

If you haven't guessed by now, this potential client is very demanding. The warning flags went up the moment she started telling the lawyer what SHE wanted done.

The bottom line is that when the client starts telling the lawyer how to handle her New York personal injury matter, there will be many problems. It is the lawyer's obligation to provide advice based upon his or her experience and knowledge. When the potential client simply will not listen or does not want to listen to the attorney's advice and directs how the case is to proceed, then you can easily envision significant problems down the road.

About Gerry:

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. He started his legal career working for a defense firm on Wall Street representing doctors, hospitals and businesses who were sued. Four years later he felt the gravitational pull to represent injured victims of medical negligence and accidents. After doing defense work, he joined a personal injury law firm in Brooklyn, NY representing injured victims, and then four years later, joined forces with a large law firm in Queens, NY. While there, he was in charge of the medical malpractice department, and in 2002 opened his own office for the practice of law. His main office is located in Great Neck, Long Island, and he has affiliate offices in Brooklyn and Staten Island.

Gerry prides himself on knowing all the details of each case he handles. Cases are not handed off to associates. When a client calls, he doesn't need to check a file to determine what happened last on the client's case. He knows what happened, since he was the one who handled the matter.

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

Gerry welcomes all calls about any accident or injury from a doctor or hospital in the State of New York. He promises to give you a straightforward and honest answer about every question you ask. Take a look at his website, where he has over 200 FAQ's, free reports about medical malpractice, wrongful death and accident cases, actual testimony of doctors in cases he's handled, and an entire video library you really should see.

If that's not enough, take a look at his blog where he offers free information about medical malpractice and accident law and when you've finished reading his blog at http://www.nymedicalmalpracticeblog.com, jump over to his video blog where he has most of his videos posted at http://medicalmalpracticetutorial.blogspot.com - you'll be glad you did.

Car Accidents

11/17/2008
Gerry Oginski
Comments (1)

New York Car Accident Victim Loses Settlement Money After Government Steps In

Here's a perfect example of a case where the driver of a car who hit a young man crossing the street, did not have enough insurance coverage, leading to insufficient compensation for his injuries:

This particular man was in a shopping center crossing the street when he was hit by a car entering the shopping center. The driver was going about 25-30 miles per hour. He hit the man squarely on the left side of his body, causing him to go flying through the air and land about ten feet from where he started. The injured man was rushed by ambulance to the closest trauma center where he was diagnosed as having a broken femur (the largest bone in your body), trauma to his face, and a bleed under his skull. The victim required a tracheostomy; a hole made in his windpipe to allow a tube from a ventilator to help him breathe. This injured victim spent more than three weeks in the hospital.

When he was discharged, he was sent to a rehabilitation facility and ultimately made his way home.

The driver of the car had insurance. However, when I investigated the insurance policy he had, it turns out it was a "limited" policy. This means it was a relatively low policy amount. Shortly after I was able to document all of my client's injuries to the insurance company, they promptly paid the full insurance policy since they recognized that the injuries my client suffered far exceeded the available insurance in this case.

Q: What other options were available to this young man after the insurance company "tendered" (paid) the insurance policy?
A: One option would have been to sue the driver personally and try to get a judgment against him. If successful, then I would be able to enforce the judgment by seizing his property in order to fulfill the judgment. However, after investigating this possibility, we learned that the driver had no assets- at least none that were in his name. Bringing a lawsuit against him, just to get a "paper" judgment would serve the client no purpose.

THE GOVERNMENT STEPS IN...

In this case, my client had been receiving medicare benefits because of a pre-existing disability. When Medicare learned (as they always do) that my client had received some compensation for his injuries, they asserted a "lien" against the proceeds of his case. This meant that they were asserting their right to recoup money that Medicare paid for his hospital and medical bills arising out of this car accident. The medical bills alone were astronomical. They were over $300,000! Medicare wanted everything that my client would receive as his share of the settlement. In effect, this young man potentially would get nothing as a result of his injuries.

I appealed to Medicare advising them that it would be tragic if this young man who was severely injured were required to pay back Medicare everything he was awarded in the settlement. Yet Medicare made a reasonable argument: Who else paid for his medical bills when he was in the hospital? Nobody. He did not have any other health insurance. Medicare did not expect to get reimbursed for paying his medical bills. But, when an injured victim brings a lawsuit seeking compensation from the driver of a car, bus, truck or someone else- and is successful, then Medicare steps in and says "You are now required to reimburse us." Many times Medicare will try to negotiate with you, depending upon the amount you recover. Yet the bottom line is that they must be repaid.

If your attorney ignores a Medicare lien, they do so at their peril. If your lawyer pays you your net share of the settlement without allocating money for Medicare, this is what will happen. Medicare will file a lawsuit against your attorney in federal court. They will ask not only for the money that they were supposed to recover, but also ask for three times the amount (called treble damages). Needless to say, if your lawyer has reached this stage, he has significant problems. The government is not required to go after the client (you, the injured victim). Your lawyer may try to get the money back from you, but what if you already spent it? Now the lawyer has even bigger problems.

The bottom line? Medicare must be repaid.
The bottom line for this client? He got the short end of the stick since the driver of the car that hit him did not have sufficient car insurance to cover the severe injuries he received. Then, the government stepped in and asked for the total amount of money to cover at least some of their expenses. After an appeal to Medicare, they were "generous" enough to allow my client to take home a token amount of the original compensation he was entitled to receive.

What is the moral of this story? Carry enough car insurance on your insurance policy to cover a serious injury. Then buy an "umbrella" policy (also known as an excess policy) to protect you and your assets in the event your main insurance policy is insufficient to pay compensation to someone seriously injured.

Thanks for taking the time to become informed.

About Gerry:

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. He started his legal career working for a defense firm on Wall Street representing doctors, hospitals and businesses who were sued. Four years later he felt the gravitational pull to represent injured victims of medical negligence and accidents. After doing defense work, he joined a personal injury law firm in Brooklyn, NY representing injured victims, and then four years later, joined forces with a large law firm in Queens, NY. While there, he was in charge of the medical malpractice department, and in 2002 opened his own office for the practice of law. His main office is located in Great Neck, Long Island, and he has affiliate offices in Brooklyn and Staten Island.

Gerry prides himself on knowing all the details of each case he handles. Cases are not handed off to associates. When a client calls, he doesn't need to check a file to determine what happened last on the client's case. He knows what happened, since he was the one who handled the matter.

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

Gerry welcomes all calls about any accident or injury from a doctor or hospital in the State of New York. He promises to give you a straightforward and honest answer about every question you ask. Take a look at his website, where he has over 200 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://nymedicalmalpractice.blogspot.com, jump over to his video blog where he has most of his videos posted at http://medicalmalpracticetutorial.blogspot.com - you'll be glad you did.

11/17/2008
Gerry Oginski
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NEW YORK CAR ACCIDENTS- 12 Key Deposition Techniques in a Car Accident Case

Here are 12 key tips to help you question a defendant in a car accident case:

1. Were you taking any medication or non-prescription drugs on the day of the accident?
You want to know whether the driver was high on drugs while driving. The natural follow-up is whether he drank any alcohol within 24 hours prior to getting into the car that day.

2. Weather: You want to know whether the weather had any effect on contributing to the accident.
Was it raining? Had it rained? Was the ground wet? Do you have snow tires? Was your window open? (To determine if he could hear anything immediately prior the accident like screeching tires or kids playing.)

3. Their senses: You want to know whether their sight, sound and balance were all in good working order. If not, you need to question them extensively about their limitations. Do you wear eyeglasses? Any difficulty hearing? Any neurological problems? Previous medical problems such as a stroke?

4. Speed: You must establish their speed at impact, as well as at various points immediately before impact. If the witness does not know an exact speed, ask for an estimate. In New York, an attorney can, without objection, ask for estimates of speed. Once you have established the approximate speed, you can now move on to timing.

5. Timing: You need to establish how long it took to go from point A to point B. It is those reference points that will tell you conclusively whether this witness' testimony about their speed, time and distance are accurate. For example, "How long did it take you to travel 1/4 mile?" "How much time did it take you to travel the one block before impact? "How long did it take from the time you left the intersection at Main Street until the impact?" The follow-up questions lead directly to the next question: Distance.

6. Distance: You need to establish how far the driver was at various reference points. "How far were you from the impact point when you saw the red light?" "How far did you travel from Main Street until the impact?" Why is this important? There are simple mathematical formulas that will allow you to plug in the numbers that the witness testifies to that will either support their testimony, or allow you to prove that they are wrong. "Speed, time and distance" is the mantra of any personal injury trial lawyer who tries car accident cases. If you know any two out of the three elements, you can calculate the third. It's a very valuable tool for a trial lawyer, and allows you to create a devastating point when making closing arguments.

7. Geographic area: What is surrounding you? Is this a residential area or a commercial area? Was there parking on the street? Were there any trucks, busses or cars that blocked your view?

8. The car they were driving. Besides the usual make, model and color, ask for their license plate number and when their car was last inspected before the accident. Ask whether they have an ipod dock or a GPS system. Is the GPS portable, or fixed on the dashboard? Are there fuzzy dice hanging from the rearview mirror? Do you smoke? Were you smoking at the time?

9. Were you distracted?

10. WHEN DID YOU SEE THE OTHER CAR FOR THE FIRST TIME? This is important to establish that the defendant may not have seen the driver until it was too late to do anything. The failure to see that which should have been seen may establish liability for you in your case.

11. Mechanics of your car: Was it in good working order? If not, when had it last been serviced?

12. Passengers in your car: Who were they? Ages? Addresses? Conversation level? Distracted by passengers?

This list gives you an outline of key elements you need to establish liability in a car accident case in New York. As always, preparation is the key to knowing what questions to ask.

General

11/17/2008
Gerry Oginski
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“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.
She explained to her friends that on my website I gave free reports about how medical malpractice cases work. This was new to her and the information was very helpful to understand how a case works. She was also grateful to learn how a lawyer actually evaluates a potential medical malpractice case in New York. Before looking at my website, she had preconceived ideas about what types of cases are accepted by injury and accident lawyers in New York. My reports helped her understand the procedure a lawyer must go through to determine whether someone has a valid case.

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

When my soon-to-be client called this law firm later that day to ask the paralegal more questions, her conversation started out like this: "Thank you for calling _____ law firm. How may I direct your call?"
"I'd like to speak to the paralegal I was speaking to earlier about a potential case."
"Do you know her name?" "No."
"Well, we have over 20 paralegals here. How do you spell your last name?"
"Never mind," she replied, frustrated with being unable to speak to the person she spoke to earlier.

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

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

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

"We send you a quarterly letter advising you what's going on with your case."
"Oh, we don't send written updates. If you want to know what's happening, you have to call us. If we sent updates to all of our clients on a regular basis, we'd spend most of our day writing letters."

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

About Gerry:

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. He started his legal career working for a defense firm on Wall Street representing doctors, hospitals and businesses who were sued. Four years later he felt the gravitational pull to represent injured victims of medical negligence and accidents. After doing defense work, he joined a personal injury law firm in Brooklyn, NY representing injured victims, and then four years later, joined forces with a large law firm in Queens, NY. While there, he was in charge of the medical malpractice department, and in 2002 opened his own office for the practice of law. His main office is located in Great Neck, Long Island, and he has affiliate offices in Brooklyn and Staten Island.

Gerry prides himself on knowing all the details of each case he handles. Cases are not handed off to associates. When a client calls, he doesn't need to check a file to determine what happened last on the client's case. He knows what happened, since he was the one who handled the matter.

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

Gerry welcomes all calls about any accident or injury from a doctor or hospital in the State of New York. He promises to give you a straightforward and honest answer about every question you ask. Take a look at his website, where he has over 200 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://nymedicalmalpractice.blogspot.com, jump over to his video blog where he has most of his videos posted at http://medicalmalpracticetutorial.blogspot.com - you'll be glad you did.