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Blog Category:

Medical Malpractice

7/26/2010
Gerry Oginski
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Residents Performing Unsupervised Operations

What happens when doctors-in-training perform surgery unsupervised? Think it doesn't happen? Think again. As more hospitals cut back on expenses, training and personnel, who do you think suffers the most? The nurses? The technicians? The doctors? Wrong. The patient suffers. Read the article to learn why.

1/22/2010
Gerry Oginski
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"Almost" Doesn't Count

I often get calls from potential clients telling me that because of some doctor's wrongdoing they "almost" died. Luckily for them, "almost" doesn't count. Some callers say they almost suffered permanent harm from carelessness of a doctor or nurse. Again, "almost" doesn't count.

7/7/2009
Gerry Oginski
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Beware of the "Medical Expert" consultant

I was contacted today by a physician who claimed to do expert witness work for injured victims. He wanted some business. I asked him what his medical speciality was. Instead of a direct answer, he said he'd done consulting for attorneys before, and that if I want, I should go to his website to see what he has done.

I said "No. Tell me what your medical specialty is."
His reply- "Research."
"Are you board certified in any field of medicine?"
"No, but I help attorneys understand their case, and I don't have to be board certified to testify."
I asked, "How can you testify as a credible expert witness if you're not board certified?"
His response: "I do this all the time. I don't really testify. I help explain the case to you so you become more familiar with the medicine."
"What types of cases do you review?" I asked incredulously. "Surgery, pulmonary, cardiac, cancer..." was his reply.

I was amazed.

I then asked why I should hire him, and then have to hire a second expert to testify at trial? I only heard silence on the phone.
I asked again.
"Why should I hire two medical experts; one who reviews the case, and another who testifies?"
His reply was "Because I'm a better teacher."

"But wait," I said. "You still haven't answered my question."
"If I hire a medical expert to spend 5 hours to review medical records, and that expert feels the case has merit, I don't want to hire another expert two years later to review the case starting fresh, and close in time to the trial. That's double the work, and double the money. What do you have to say about that?"

He had no answer.
"But I'm a better teacher," he repeated.
"So are many of the experts I hire. They're clinical doctors with academic credentials who are board certified," I said.
I was getting frustrated talking with this guy.
"What good does it do for my client if you're a good teacher, but you can't come into court to teach a jury that our position is more likely right than wrong?"
His final answer was "I've been doing this for a long time, and you really should see my website."
My final reply was "Have a nice day."

The moral of the story: Don't let your medical malpractice attorney hire a "medical consultant" who does not testify, just to confirm you have a case, and then have to hire a new medical expert during your case. Make sure you hire a board certified expert in the specialty you need to review and to testify."


2/16/2009
Gerry Oginski
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Failure to Recognize Nerve Injury Results in $1 Million Settlement

The failure to recognize that a nerve was being compressed, despite the patient complaining about symptoms of pain, numbness and tingling were ignored during a busy emergency room shift. The failure to perform surgery in a timely manner resulted in permanent damage to the nerve, the arm and hand. This case was settled during discovery and shortly before it was placed on the trial calendar.

2/1/2009
Gerry Oginski
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NY Medical Malpractice - 2 Reasons Why Victims Won't Recover Any Money

Even though there are still calls for "Tort Reform" the vast majority of malpractice victims in New York fail to recognize that they are a victim of medical neglect.

1. Patients don't know they are victims of medical malpractice.

Studies show that roughly 2.9 to 3.7 percent of admitted hospital patients suffer some sort of preventable injury as a result of improper medical care. Even more management-related injuries occur outside of the hospital. These injuries are a result of a physician's affirmative mistake, or that person's failure to act. Types of mistakes include errors in diagnosis, use of automated materials, and inappropriate delay of treatment.

However, one of the most common errors occurs with administering medication. Up to 98,000 patients are killed each year as a result of preventable medical errors, the eighth leading cause of death in the U.S., yet only 10,000 cases of malpractice are filed each year. In the vast majority of cases, however, the fact that a poor medical outcome was caused by malpractice is hidden from the patient.

2. No autopsy was ever performed.

Remember that we must prove both carelessness on the part of the doctor or hospital and that the carelessness resulted in death or injury. In a medical malpractice case that results in death, it is extremely difficult to prove that the death occurred because of the malpractice without an autopsy. This is because there are so many reasons why a person might have died, but we must prove that at least one of the reasons for the death was the negligence or carelessness of the doctor or hospital.




2/1/2009
Gerry Oginski
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NY Medical Malpractice -Does Obnoxious Doctor or Small Injury=Compensation For Victim?

1. A physician's poor bedside manner does not constitute negligence.

In the vast majority of cases, even extremely poor bedside manner cannot be considered in determining whether a physician was legally negligent in providing treatment. We have reviewed many cases where arrogant doctors provided care and the patient was injured. It just doesn't matter legally that the doctor was a jerk. We must prove, with expert medical opinion that the treatment departed from good and accepted medical care; that such care was a substantial factor in causing injury and that the injury is significant and permanent. Bedside manners are not, in and of itself, part of the formula that a jury will use to establish responsibility. 

2. The patient suffered no significant damages.

If the victim suffered minor injuries, the legal system is not set up to handle small medical malpractice cases. We decline hundreds of cases a year where it appears that the doctor was careless but the resulting injury was not significant. A pharmacist may incorrectly fill your prescription, and you might get sick for a few days. If you have a good recovery, however, you probably don't have the basis for a case. That's because the costs of pursuing the case will be greater than the expected recovery. Our Court system may not be perfect, but it does act as a filter to keep out all but the most serious cases of medical malpractice.



2/1/2009
Gerry Oginski
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NY Medical Malpractice -3 Reasons Your Case Will Not Be Accepted

The physician or hospital's mismanagement did not necessarily cause the injury suffered.

When proving that medical malpractice was the reason why the patient suffered an injury, I must show that the treatment rendered or not rendered was a departure from good medical care. That medical neglect had to have been a cause of an injury, and the injury has to be significant and/or permanent. The attorneys for the doctors and hospital have many standard defenses such as: (1) The injury was an unforeseeable consequence of the initial condition/injury, (2) The injury was due to the patient's non-compliance with prior medical advice, (3) The risk of the patient's particular injury was a known, recognized, risk (acceptable to whom?), (4) Some other party was responsible for causing the injury, or (5) The injury was caused by a previous illness or disease.

Medical malpractice claims must show that the doctor's substandard care, more likely than not, was a substantial factor in causing injury.

The injured patient has not retained an experienced attorney.

The world of medical malpractice claims is a world unto its' own. It has its' own special rules and laws. We believe that it is imperative that an experienced medical malpractice attorney or an attorney that is 'teaming up with' an experienced malpractice attorney represent you.

The statute of limitations has expired.

This is the time a person has to start a lawsuit. The time limit is very different for a city, state or municipal hospital than it is for a private hospital or doctor. One reason that you should consult an experienced medical malpractice attorney early is to determine when the statute of limitations expires in your case! DON'T LET YOUR TIME RUN OUT without knowing your legal options!




1/16/2009
Gerry Oginski
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Neurosurgery Delay Results in Pre-trial Settlement

A woman who had spinal surgery was sent home shortly after undergoing successful spine surgery.

Two days later, she was unable to move her legs and had difficulty urinating. A call to the surgeon's office revealed that the surgeon was unavailable, and he would get back to the family shortly. A repeat phone call to the doctor's office resulted in being told to wait for an available hospital bed, and that they would be called as soon as a bed opened up.

The family decided they could not wait at home as the patient's symptoms were getting progressively worse. The doctor's office had told them to go directly to the admitting office where they would wait until a bed was available. Unfortunately, this patient waited about five hours in the admitting office for a bed. During this time, she was never examined or treated by any physician.

Once the patient was admitted to the hospital, the wrong diagnostic imaging test was performed. The imaging test turned out to be inconclusive, and it wasn't until a full day later that the "gold standard" imaging test was done. This conclusively showed there was a fluid collection in the area of her prior surgery that was compressing her spine.  

The reason she had neurological symptoms was because the buildup of fluid compressed the spine. In spite of these findings, surgery was not performed immediately to remove the fluid and relieve the pressure on the spine. It was not until many hours later when surgery was finally performed and the fluid evacuated.

The patient required hospitalization and then a transfer to a rehabilitation facility. She had difficulty walking and ambulating. After a few weeks in physical rehab, she was finally sent home to recuperate.

Shortly before we were scheduled to begin jury selection on this case, all sides were able to reach a mutually agreeable pre-trial settlement. Because the terms of the settlement require confidentiality, I am unable to disclose the amount of the settlement, the people involved or where within New York this took place. 

Erbs Palsy and Klumpke's Palsy

11/27/2009
Gerry Oginski
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Failure to Diagnose Aneurysm

What is an aneurysm? How does someone fail to diagnose an aneurysm? What are the ramifications of missing a bleeding or rupturing aneurysm? Read the blog post to find out.

Emergency Room Errors

2/7/2010
Gerry Oginski
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Testicluar Torsion

Failure to Diagnose and Timely Treat Can Result in Death of a Testicle

Wrongful Death Cases

8/4/2009
Gerry Oginski
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Driver in Wrong-Way Crash on Taconic highway That Killed 8 Was Drunk

The New York Times reported today that the horrific crash involving a woman who drove the wrong way on the Taconic highway in Westchester, New York, kill herself, her two year old daughter and three nieces, together with three men who were driving the correct way, was caused because this woman was drunk at the time of the accident.

Reading this article, you can't help but wonder how someone could do this to her kids, her brother's kids and to unsuspecting drivers going about their business. It's just shocking and absolutely stunning. The autopsy reported a blood alcohol level of 0.19 and that it was fresh, with some alcohol still remaining in her stomach. 

Investigators couldn't figure out what would have caused this woman to cause such a tragedy. Now, we know that it was her own decision to drink and drive causing the needless deaths of seven people and herself.

Negligence is carelessness. The facts, as reported in Newsday and the New York Times would clearly suggest that these deaths were caused by this woman's carelessness. What a tragedy. My heart goes out to their families.

Read the full article here. 

Bicycle Accidents

11/17/2008
Gerry Oginski
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Queens Bicycle Rider Hit By Car at a T Intersection-New York Accident Attorney Explains

My client was out riding his bicycle on a beautiful sunny Spring day this year, on a quiet stretch of road in Queens. He was approaching an intersection where cars were coming off of the Grand Central Parkway exit ramp. As a driver coming from the Grand Central heads down the exit ramp, he is left with one of two choices as he approaches the T intersection: Either turn left, or turn right. If you are going to make a left turn, you must get into the left-hand turning lane. There is a stop sign at that T intersection for cars just getting off the GCP exit. In this case, a driver coming off the Grand Central Parkway exit ramp got into the left-hand turning lane and proceeded to stop at the Stop sign. A good thing he did.

However, instead of looking to his left, which is where he was intending to turn, to check for oncoming traffic, he looked to his right and removed his foot from the brake and applied the gas. As he did so, he proceeded to hit my bike-riding client-who by the way was in the middle of the intersection, on the right side of his body, throwing him to the pavement. A trip to the emergency room revealed a fractured finger, that days later required surgery to correct. An MRI of the knee revealed damage to a tendon, which required arthroscopic surgery to fix.

In addition, my client suffered a significant shoulder injury requiring extensive physical therapy. This young man, who was wearing his helmet at the time of impact, was a computer programmer and because of the injury to his finger and surgery, had great difficulty typing and performing his job duties. Recuperation and physical therapy has helped him regain function to his finger and hand, and he performs strengthening exercises each day.

This accident was preventable. The careless and negligent driver had only to look to his left to see what he should have seen. Had he merely looked to his left, he would have seen my client riding his bike peacefully on a beautiful Saturday morning. Instead, through the negligence of this driver, my client's day was turned upside down.

Negligence Cases

2/23/2010
Gerry Oginski
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I Can't Believe I Slipped On Ice!

Over the years I have written many articles about slip and falls on snow and ice here in New York. I've had my share of slipping on ice. Today in New York it's a rainy 35° and the ground is covered in certain parts with melting ice. Parking my car in the back of my office building left me on a large patch of ice. Feeling brave and fearless, I eagerly got out of my car and began the short walk to the front door of my building. My black leather shoes had zero traction despite my heel being made of rubber. Unfortunately, the day that I decided to park on a large patch of ice it figures that I was not wearing my snow boots.

1/10/2010
Gerry Oginski
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Ambulance Chasers

Do you still think that personal injury attorneys are "Ambulance Chasers?" Personal injury and medical malpractice lawyers earn a living by helping injured victims recover compensation. Read the blog post to see what might happen if there were no trial lawyers around to help someone injured by another person's carelessness.

10/3/2009
Gerry Oginski
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Apartment Building Fire Results In Significant Property Damage-Tenant Settles for $150,000

My clients owned a condominium in Queens. Their condo was in a large development which was undergoing repairs to the roof. The roofers were using hot tar to put down the new commercial-grade roof. Because of high winds, the tar overflowed causing a massive fire. My clients' condo suffered extensive water damage, and during the course of repair it was learned that their apartment, along with everybody else on the floor had its best those articles throughout the apartment. This required asbestos abatement, and force them to discard all of their remaining possessions that survived the massive water damage from the original fire.

 The management company and the condo association refused to compensate my clients for the damage to their condo. They were willing to make only minor and modest repairs to get their unit functioning again. They would not consider replacing any of the items or contents in their unit. that prompted them to seek my legal services.

Approximately 9 different people and companies filed lawsuits against the management company, the condo association and the roofers who caused the fire. These lawsuits were brought in different counties here in the state of New York. Because all of these cases arose out of the same incident, all nine cases were consolidated into one case that was being handled by one judge in Queens County.

After 4 1/2 years of litigating this case I'm pleased to say that we were able to successfully resolve this case to my client's satisfaction for the sum of $150,000.

2/21/2009
Gerry Oginski
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Attention PI & Med Mal Attorneys! Your Clients May Be Looking for a New Attorney

Not a day goes by without getting a call from a disgruntled client asking if I would be willing to take over their case from another attorney.

One of the first questions I ask this person is "Why do you want to switch attorneys?"

The response is usually one of two possible reasons:
1. The original lawyer has withdrawn from their case or
2. The client is unhappy with what the lawyer is doing, or in some cases, not doing.

When a lawyer withdraws from a case in New York, he must get permission from the Court to withdraw as the attorney. The Court will then give the client ample time in which to try and find another attorney to continue the case.

Clients may not realize it, but when an attorney withdraws from a medical malpractice or a negligence case, the defense knows that there must be some problem either with the merits of the case, or a conflict between the attorney and client that cannot be resolved. In either situation, it sheds a cloud over the case. A new attorney taking over the case has many intangible obstacles to overcome.

Just this week a potential client asked me to take over her case telling me that she had an "excellent case." Her attorney had withdrawn and now she had all the records to give to the next attorney.

When I asked why he withdrew, the response was "Well...he and I didn't get along."
"He didn't want to do what I asked him to do..."
"He wasn't really doing anything on my case..."

I informed this woman that it is my policy that I do not take over a case when another attorney has withdrawn. I do not need to inherit a whole host of someone else's problems. Her response was "There are no problems with my case. Only with my attorney."

What type of client do you think this person would be?

When the client is unhappy with what the lawyer is doing, it's usually because there is a lack of communication. I will always suggest that the client sit down with their attorney and have a straight-forward conversation about their concerns. An open line of communication with the attorney is vital. Stay in the loop, keep informed, and ask your attorney for regular updates.

1/21/2009
Gerry Oginski
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NY Accidents & Injuries- "Why Isn't The Store Responsible For My Injuries?"

I was asked this question today by a very educated man. He knew someone who had walked into a store, gotten hurt while taking something off a shelf, and assumed that the store was totally responsible for the other man's injuries.

I asked "Did the store know about the dangerous condition before this man pulled the object off a shelf?" "Why is that important?" asked this intelligent young man.

It's important because in the legal world, in New York, I must be able to prove that the store had "Notice" about a dangerous condition and that the store failed to time act to correct the problem before someone got hurt. This man felt strongly that the store should be held accountable for any injury or accident that takes place within its' premises. An encouraging thought for an injured victim, however, that is not what the law says.

In order to hold a store responsible for an accident that causes injury in New York, the employees of the store had to know about the dangerous condition and fail to timely fix the problem. If the people who worked in the store did not know about a dangerous problem, how then can they be held accountable for any injuries that happen while in the store?

There is another instance where a store will be found responsible for injuries arising out of an accident. Let's say that a dangerous condition existed for a lengthy period of time, so that "everybody" who went by that area of the store knew there was a problem, yet nobody fixed it.

Where the defect is present for such a long period of time, the law says that the store, or its' employees are deemed to have "Constructive Notice" of the defect, and they should have fixed it long ago.

Here's a good example: You're in the produce section of your supermarket. A shopper immediately in front of you accidentally drops a few grapes, and seconds later you step on it. You fall and fracture your leg. Is the store responsible? In New York, the answer likely is no. Why not? Because the people who worked in the store didn't know, and didn't have enough time to know of the dangerous condition. Therefore, there was no way they could have cleaned up the grapes before the accident happened.

Ok, here's another example: What if a shopper accidentally knocks a jar of tomato sauce to the ground, causing the jar to shatter and tomato sauce to splatter all over the aisle. Suppose that ten shoppers reported the damaged jar with sauce on the floor, and after ten minutes nobody has cleaned up the mess. Along comes some oblivious shopper, mindful of only herself and her grocery list.

You know what's going to happen, right? She slips, falls, and fractures her hip. Is the store responsible? As long as we could prove that the store had a policy of cleaning up their messes within minutes of being notified, then a gap of ten minutes without a clean-up might be construed as showing they had sufficient time to clean up the problem and failed to do so.

The bottom line is that when an accident happens in a store, you must notify the management immediately; have them complete a written report, and you should immediately go to the hospital for treatment if needed.

Car Accidents

3/10/2010
Gerry Oginski
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Traumatic Brain Injury

The brain is a complex and vital organ that shapes who we are. It allows us to understand questions and solve intricate problems, it produces our emotions while crafting our personality, and it helps us to live on both a biological and spiritual level. If it should experience damage than the essence of who we are could be lost forever. This is why traumatic brain injuries can cause grave damage to the life of its victim.

4/3/2009
Gerry Oginski
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Is It Ethical For a Lawyer To Send a Letter to a Car Accident Victim?

Q: My mother was in a car accident last week, and already she's gotten letters from lawyers

asking if she's ok, and if she wants a lawyer? Is it ethical for a lawyer to send such a letter?

A: First, I hope she is feeling better. Second, in limited circumstances in New York, it may be

'acceptable' for an attorney to send such a letter to a victim of an accident. However, new ethical rules

say that a lawyer may not send an unsolicited letter to a victim's family within the first 30 days of the

incident.

In any event, the majority of lawyers feel such a letter to a victims' home is demeaning and degrading.

Some lawyers feel this is nothing but a solicitation, which is clearly not permitted in New York. Other

attorneys (the ones who send these letters) feel that it may be their only chance to entice the injured

victim to come to them as a client.

The letter is supposed to only offer them legal assistance and guidance- should they want it. Again, how

do you choose which attorney to use when you're inundated with a flood of letters from different

lawyers promising to help you with your accident claim?

The answer is simpler than you think. Ask yourself why an attorney would even bother to send such a

letter. Are they really that desperate to need to send such a letter? How did they get your name anyway?

I'll tell you how- maybe it came from the tow truck operator who took your car away. Maybe it was

from an ambulance technician. Maybe it was from a police blotter at the police station. (That's public

information that many investigators working for lawyers troll for in various police stations).

Ask yourself another question. Do you let a stranger into your house simply because he says he saw you

need a paint job, and amazingly, he's a painter who is willing to paint your house for a great price? Did

you call him? No. Did you seek out other customers of his to determine if he's reliable and professional?

No. He just showed up while trolling through the neighborhood. Is this the type of painter you want

working on and in your house? I don't think so.

The same rationale holds true for a lawyer that sends you an unsolicited letter following an accident.

What do you know about that lawyer? Probably nothing. Does that mean that he (or she) isn't a good

lawyer? No. But, again, think who you want for your attorney. Does it help knowing that your lawyer

gets many cases this way, by sending out unsolicited lawyer letters hoping that a few unknowing people

will answer the letter? The choice, as always is yours. Make an informed choice.



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 ACCIDENTS-6 REASONS TO SUE THE DRIVER WHO HIT YOUR CAR

You were on your way to work that morning, and never saw him blow past the stop sign without ever slowing down. 1. You can’t believe he destroyed your car. 2. You can’t believe you had to be removed from your car with the “Jaws of Life” that the fire department uses to open crushed cars. After being taken out on a backboard and having your head, neck and body strapped to the board and placed onto a stretcher in the ambulance, you still can’t believe you had to go to the emergency room.

General

8/3/2009
Gerry Oginski
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Looking for an attorney? 5 tips to help you decide which attorney is right for you.

When looking for an attorney online it is often difficult to determine which lawyer is right for you. Before making any decision, look critically at the information the lawyer is providing to you, either in an advertisement, an article or even a video. If the lawyer simply provides a brief message that says nothing more than "Call me because I'm here," ask yourself "Why?"

Selecting the right attorney to help solve your legal problem is an important decision. Read the article to learn the difference between pay per click ads and organic search results. Find out what experience this particular attorney has and how it can help you in your quest for justice. At the end of the article, read the conclusion for a neat little trick that will tell you a lot about any attorney that you call. 

To read the full article, click here. 

1/25/2009
Gerry Oginski
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ANNOUNCEMENT! Gerry Oginski is now a Faculty Member of Solo Practice University

As of Monday, January 26, 2009, Gerry has been named as a faculty member of Solo Practice University!
Solo Practice University is an online school for lawyers to learn about areas of law they never learned in law school. SOLO PRACTICE UNIVERSITY™ is a revolutionary new web-based educational community that picks up where legal education left off.


"Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

  • Plan, build and grow your private practice
  • Differentiate yourself from the competition
  • Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school."


Gerry will be teaching two classes at Solo Practice University:

The first will be about Creating Online Video for lawyers.
The second will be about Medical Malpractice Law here in the State of New York. 

New York Medical Malpractice Video Blog

    Did you know that a deposition is nothing more than a question and answer session in your lawyer's office? It's true. The only difference is that it's sworn testimony, as if you are testifying at trial. Watch the video to learn more. This is the 5th video, in a series of videos that explain how medical malpractice cases work in New York.
    Learn what an "Answer" is. Find out what "Affirmative Defenses" are and how defense attorneys use them. Watch the video to learn more. This is the 4th video, in a series of videos that explain how medical malpractice cases work in New York.
    You believe you have a valid medical malpractice case. Find out what documents actually start your lawsuit and learn who actually delivers the papers to begin your New York medical malpractice case. Watch the video to learn more. This is the 3rd video, in a series of videos, that helps you understand how medical malpractice cases work in New York.
    Did you know that in order to start a medical malpractice lawsuit in New York, we must have confirmation from a medical expert? It's true. Watch the video to learn more. This is the 2nd video in a series of videos about how medical malpractice cases work in New York.
    How does an attorney get copies of your medical records in order to evaluate your possible case. Watch the video to learn how. This is the first video, in a series of videos, that help you learn how medical malpractice cases work in the state of New York.

NY Medical Malpractice and Accidents

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