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- 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
Comments (0)

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.

11/17/2008
Gerry Oginski
Comments (0)

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.

Negligence Cases

11/26/2008
Gerry Oginski
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Negligence in New York - How to Recognize It - NY Personal Injury Lawyer Explains

Negligence is a lack of ordinary care. Here are some examples of negligence:

1. A woman in a car drops her cell phone while driving 50 miles per hour on the highway. Inexplicably, she reaches down to search for the ringing cellphone and takes her eyes off the road. You can guess what happens next.

2. A boy walking by his local pizza place is fascinated by a construction crew working on a building next door. The big equipment; the cranes, the bulldozers, the dump trucks are just waiting for him to run in and play with these "toys." The gate to the construction site is left unlocked and the front door is open. This is known in the legal field as "An attractive nuisance." The boy's curiosity encourages him to walk into the empty construction site with all these big pieces of construction machinery. What do you think can happen to a young boy playing with heavy machinery at an empty construction site?

Who do you think might have been negligent in securing the doors to the construction site? When the boy is crushed between a forklift that moved and a wall, do you think there has been a lack of reasonable care for the owner of the site and construction crew to protect the site from trespassers?

3. A company makes a ping pong table and the bolts holding the table together were not properly heat-treated, causing the bolts to have stress fractures. While playing ping pong, the table collapses and 200 lbs. worth of ping pong table crushes the leg of a young girl with aspirations of becoming a gymnast. Do you think the manufacturer of the ping pong table owed a duty of reasonable care to the consumer who knows nothing of the manufacturing process?

4. A mechanic fixes your brakes on your 2005 Ford Taurus. He charges you four hundred dollars and tells you the brakes are good as new. What he doesn't tell you is that he only learned how to fix brakes last week, and forgot to test drive them before allowing you to drive home. You get in the car to go home and when you approach a red light, you naturally put your foot on the brake. Can you guess what happens? There is no brake. Putting your foot on the brake does nothing and the resulting crash puts you in the hospital for three weeks, and the driver of the car in front of you is in surgery as we speak.

Is it reasonable for the owner of the car repair shop to have looked into the credentials and experience of the mechanic before hiring him?

5. You are a pedestrian crossing the street with a "Walk" sign, in the crosswalk, when you are hit by a car that went through a red light. Is it reasonable to assume that a driver will recognize that a red traffic light means "STOP" and not "GO"?

6. You are an avid bicycle rider, riding in the street in the same direction of traffic. A man in a parked car decides at that moment to fling open his driver-side door to exit his car. Unfortunately for you, you were about to pass his car but were thrust into moving traffic by a 50 lb car door that destroyed your femur and caused the car behind you to drive over your legs and your bike. Do you think this person who flung open the door was careless for not looking behind him to see if there was any oncoming traffic?

These examples of negligence are seen every day by an experienced New York personal injury trial lawyer. When you've been a victim of negligence there are important steps you need to take in order to protect your legal rights. Knowing these rights will help you in deciding what your options are.

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.

11/26/2008
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 (0)

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.

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.