The Law Office Of Gerald Oginski, LLC

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.

Car Accidents

11/26/2008
Gerry Oginski
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NY NEGLIGENCE LAWYER-The Large Law Firm Trap

You suffered a terrible accident. You have been in the hospital for weeks now. Your family is angry that you are now physically disabled. You wonder when, if ever, you'll be able to return to work. Physical therapy is not helping much. Your treating doctors are not that encouraging. You fall into a state of despair. You know you want to sue the driver of the car that hit you and caused all these ailments, but you do not know a New York accident attorney. Nor do you have any friends who know a good attorney they could recommend.

11/17/2008
Gerry Oginski
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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.