Attorney Blog

Filing Complaints against Hospitals: How to Be an Effective Advocate

lawmed10@yahoo.com (blog Author)38513 — Tue, 07 Sep 2010 08:00:00 EST

Today's blog post is from guest blogger Alexis Bonari.

Many hospitals consistently provide quality care to their patients, but there are always instances where certain individuals don’t receive the professional attention they deserve. This is to be expected in any business, but in hospitals, the consequences can be more serious and could lead to life-threatening situations. Hospitals also present more difficulty because patients are not always in a sufficiently stable mental or physical state to be their own care quality advocates. The following are steps to be taken by patients or their family members and should serve as a guide to proceeding through the proper channels to achieve fast and effective results.

Based on which section of the hospital is administrating your care, choose the right representative when you decide to inform hospital staff that you or a loved one is receiving inferior care. If you’re in a room at the hospital, speak to the nurse manager, but if you’re in the emergency room, it’s best to inform the ER supervisor. When communicating with these individuals, try to accurately and quickly describe the severity of the care deficit or abuse so that they don’t feel that their time is being wasted. Nurse managers and ER supervisors have an increasing number of responsibilities and patients as hospital staff downsizing occurs, so being respectful of their time constraints may help you gain their attention. Once you’ve contacted the manager or supervisor, request a prompt investigation and ask to be notified as soon as anything has been found or decided.

If you are dissatisfied with the results of contacting the nurse manager or ER supervisor, address the hospital’s patient representative. This person is there to address concerns and special needs, so take advantage of that fact by communicating with him or her. Patient representatives are often responsible for collecting information about patient dissatisfaction, so the one at your hospital would be a primary contact in the potential lodging of a complaint.

If action is still not taken, talk to the nurse supervisor of your patient care unit, then the vice president of nursing. If you have any way to connect your mistreatment with potential legal action, you can contact the hospital’s risk manager as a way to get the ball rolling. Another option is to contact the chief operations officer (COO), whose duties include ensuring patient satisfaction. This person interacts a lot with the CEO, so he or she should be able to inform the right parties of your complaint. If this fails, go directly to the president or CEO before filing your complaint with an outside organization.

When all else fails, lodge a formal complaint. Try your State Agency, which is the Health Department for the state of New York. Complaint concerns are redirected to IPRO, where you are encouraged to call 1-800-331-7767 to describe your concern. You can also contact your hospital’s corporate headquarters, news media programs, or The Joint Commission. This organization is responsible for accrediting almost every hospital in the country and reviews all quality of care complaints that are submitted to it. These complaints are also recorded in the Commission’s database so that they can be referred to in the case of investigation.

Bio: Alexis Bonari is a freelance writer and blog junkie. She is currently a resident blogger at Online Degrees, researching areas of online colleges. In her spare time, she enjoys square-foot gardening, swimming, and avoiding her laptop.

Spinal Injection Causes Paralysis

lawmed10@yahoo.com (blog Author)38560 — Tue, 07 Sep 2010 08:00:00 EST

One of the few comforts that a patient can rely on when undergoing a major procedure is that they usually get to meet and talk to the doctor who will be performing their operation. When that trust is betrayed, patients have a right to be upset.

For example, a man was admitted to a hospital to receive an acrylic injection to his spinal column. The procedure was supposed to help the man with his back pain. The man decided to undergo the procedure after discussing the risks with his doctor. After the procedure, the patient was paralyzed. Apparently the injection was performed incorrectly and the inserted fluid spread to inappropriate parts of the spine. Additionally, the patient found out that the doctor who performed the operation was not the one that he consulted with.

In response, the doctors’ medical licenses were suspended for three months. The patient is also suing for more than $23 million. Whether and how much the patient will ultimately get from the hospital and the doctors is unknown at this time. The fact is that the patient will never be able to enjoy the use of his legs ever again is a disability that he will live with for the rest of his days. Perhaps more disturbing than the botched spinal injection is that the doctors pulled a switch on the patient, with a different doctor performing the operation than he expected.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Falling Off an Operating Table

lawmed10@yahoo.com (blog Author)37689 — Sat, 21 Aug 2010 08:00:00 EST

Many say the best place to sustain an injury is in a hospital because then immediate care can be provided. However, it is unlikely these people would suggest that falling off an operating room table is a good thing.

For a man in Minnesota this is what happened. While undergoing a lumbar drain and unconscious from anesthesia, the man fell off the operating room table. Making matters worse, the man fell on his surgically exposed head. The surgeons did their best to repair the damage but the man subsequently suffered a stroke and died; events directly related to his fall.

Hospital officials say that the hospital was not equipped to handle the man because he weighed about three-hundred pounds. However, a lawsuit has been filed alleging that the surgical table’s Velcro straps were insufficient to prevent such an incident from occurring. The complaint alleges that hospitals routinely handle patients within this weight range and more adequate safety measures should have been taken.

In New York, if a patient falls off an operating room table while under anesthesia, we would claim "Res Ipsa Loquitor" which is a latin term that means "The thing speaks for itself." Where the patient was under the exclusive control of the hospital and their employees, it would not even be necessary to bring in a medical expert to explain to a jury why this was a departure from good and accepted practice. It's just common sense. Despite this, it still is often helpful to bring in a medical expert to help explain to the jury what injuries the patient suffered and why, as well as what would have happened if this medical error had not occurred.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Improperly Performed Sinus Surgery: Permanent Injury

lawmed10@yahoo.com (blog Author)37688 — Fri, 20 Aug 2010 08:00:00 EST

The intricacies of the human body are complicated. One of the most perplexing areas of the human body is the human head which houses the ears, eyes, nose, and mouth. Each body part is as important as the sensory ability they enable. That is why a mistake during a medical procedure on one of these areas can be tragic.

That is what happened to a woman in New Jersey who suffered permanent and debilitating eye damage while undergoing a "routine" sinus operation. The operation was supposed to relieve the patient from sinusitis. However, the doctor operated on the wrong sinus and cut through tissue that was connected to the orbit of the eye. The puncture severed a muscle that helps the eye move. The patient now suffers from permanent damage to her eye leaving her unable to continue working.

A lawsuit was filed and the patient was awarded $3.9 million. Although the recovery seems substantial, it will not fix her condition. The fact remains that the woman’s life will permanently suffer over a mistake during a routine procedure.

Sun Goes Down, Birthing Risks Go Up

lawmed10@yahoo.com (blog Author)37250 — Sat, 14 Aug 2010 08:00:00 EST

When a woman goes into labor is hardly something that can be controlled. Often it happens at the most inopportune time. We have all heard at least one story of a pregnant woman traversing a snowstorm, hailing a cab, or rushing to the hospital in the middle of the night.

As much as the timing of going into labor can catch a mother to be with her guard down, it can also catch hospital staff when it is down. A recent study of 700,000 births indicates that complications are much more likely at night then during the day. Specifically, the study indicates that children born between 6 p.m. and 8 a.m. were 32 to 47 percent more likely to die than children born during the day.

There are many possible explanations as to why birth risks go up at night. For example, one explanation is that night shifts often have fewer senior doctors and staff leaving less experienced medical professionals to handle emergencies. Another explanation is that overnight staff is more fatigued than their daytime counterparts.

Under either explanation, the result is that mothers and their newborns are in more danger when born at night than during the day because of the hospital and its staff. Since pregnant women can not choose when they go into labor, it is unfair that their treatment, and that of their newborns, are decided by whether the borth happens during the day or night.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Some Mistakes Cannot Be Corrected

lawmed10@yahoo.com (blog Author)37242 — Fri, 13 Aug 2010 08:00:00 EST

Learning that you or someone you love has cancer can be the worst news that you ever receive. Normally, finding out that there was a lab mix-up and that there is no cancer would be tremendous news…unless it comes after receiving surgery for the cancer.

That is what happened to a man in Massachusetts. He was told he had cancer, underwent surgery, and the surgery has left him incontinent and with erectile dysfunction. The man thought these side effects were the consequence of an otherwise life-saving surgery. However, upon learning that he never really had cancer and that his prostate exam results were mixed up with another patient, the man was simply devastated.

Exam mix-ups are more frequent than one might think. Take another case in which the opposite happened. A man underwent a prostate exam and was told the exam had favorable results. However, eight months later the man underwent a second prostate exam and it was revealed that he unfortunately had cancer the whole time.

Patients routinely rely on the information provided to them by their doctors. Doctors equally rely on information provided to them by labs. That is why labs play such a crucial role in the medical industry. Doctors and patients may be making what they consider to be informed decisions but may be relying on purely incorrect information.

What makes matters only more troubling is that when there is a mix-up, two patients receive incorrect data. While one may face the consequence of receiving painful and permanently disfiguring treatment, the other may not be receiving the treatment they need to save their life.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Sepsis Misdiagnosis

lawmed10@yahoo.com (blog Author)36905 — Tue, 10 Aug 2010 08:00:00 EST

Most patients do not have any background in medicine and even one’s that do, usually blindly rely on a doctor’s diagnosis and suggested treatment when confronted with a medical problem. But what happens when the doctors get it wrong? What happens when they miss a diagnosis and fail to provide necessary treatment?

The unfortunate instance of a woman in Jacksonville, Florida illustrates what can happen. The woman went to the hospital (where she coincidentally works as a nurse) suffering from fever, aches, and a racing heart but was sent away with only pain medications. Her attorney’s allege that the doctors failed to notice a textbook case of sepsis. Sepsis is a system-wide infection that if not timely treated can result in massive infection and often death.

Six-hours later, a test result came back indicating a strep infection so the woman was called back to the hospital. Ultimately, the woman’s flesh began to die and she had to have her legs removed in order to save her life.

If there were signs of sepsis when the woman first went to the hospital, immediate treatment could have saved her legs. Not having made this initial diagnosis, the woman’s condition worsened over several hours to a point beyond full recovery. At the very least, the woman was able to keep her life.

Whether or not this woman’s condition could have been diagnosed in her initial visit will be worked out in court. However, her unfortunate situation provides a lesson to the rest of us that misdiagnosis happens more frequently then we may think and can have life altering consequences.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Child Chemotherapy Mishap

lawmed10@yahoo.com (blog Author)36904 — Mon, 09 Aug 2010 08:00:00 EST

Most of us have had a family member or loved on go through a battle with cancer. While some people are fortunate enough to be victorious, others are not. Although most cancers affect people later in their lives, some people face the disease while they are still children.

Children who suffer from cancer have some things working in their favor, namely their energy and ability to quickly recover from trauma. However, their smaller bodies make administering medicines such as chemotherapy more difficult.

For instance, a child in the Bronx, New York, was able to survive an operation that removed a malignant tumor. After the surgery, the child needed chemotherapy. However, because of the child's small size there was a complication in the administration of the chemotherapy. The drugs were supposed to be inserted into a vein in the child's chest via a catheter but instead the drugs were simply being poured into the child's chest cavity.

Since chemotherapy is so toxic, the child quickly went into cardiac arrest. The surgeon placed a needle in the child's chest and a fountain of clear fluid, the chemo, came pouring out. The child then slipped into a coma, suffered partial blindness, and took months before making a recovery.

The hospital staff knew they were having difficulty setting up the catheter. Nonetheless, the hospital began to pump the child full of the toxins. There is really no excuse as to why a decision to insert toxins into the child was made without any certainty that the catheter was set up correctly. The child in this case was lucky to escape with her life.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Diseased Heart Transplant

lawmed10@yahoo.com (blog Author)36903 — Sun, 08 Aug 2010 08:00:00 EST

Organ transplants are a medical advancement that has saved countless lives. For people on an organ transplant list, waiting to receive a heart, kidney, lung, etc. can be one of the most anxious periods in one's life. After all, successfully receiving an organ often means life itself.

But even after an organ becomes available, there are still risks involved in the procedure, and even after the procedure, in post-op care. Despite these inherent risks, patients almost always opt for the chance at a healthy life rather than the certainty of death.

However, patients would not undergo the risky transplant procedure if they knew they were receiving an organ that may be worse then their own. That is what happened to a father of three in Queens, New York. After being on a transplant list for only eight months, the man was given a new heart. The problem was that the heart was actually diseased. In under a week the man suffered great pain and agony as his new heart hemorrhaged causing his death.

The man’s family is stricken with sadness and left wondering why the hospital would implant a diseased heart. Especially when the man could have survived for years waiting for a proper heart. The family has filed a lawsuit in an attempt to get some answers. So far, the hospital has failed to demonstrate that the did any of the required tests on the heart before implanting it into the victim.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Nursing Home Neglect

lawmed10@yahoo.com (blog Author)35845 — Mon, 26 Jul 2010 08:00:00 EST

The decision to have an elderly or sick family member go into a care facility is never easy. When we put our family members in the care of a nursing home or rehabilitation center, we do it because we feel as though it is best for our family member. That is why it is so shocking to hear about cases in which patients in these centers are neglected to the point where their preexisting conditions are accelerated or suffer from wholly new accidents. This is especially true when these situations could have been prepared for and easily avoided.

For example, a woman in Florida was admitted into a rehabilitation center. Even though the center was aware that the woman was at risk of slipping and falling, the woman was allowed to suffer a severe injury from falling down. The problems after her fall were only exacerbated by bedsores, overmedication, malnourishment, and dehydration. Due to these conditions, the woman died.

How can something like this happen in a facility that is designed to care for people? How could such negligence go on in a place filled with trained professionals? These are some of the questions that the woman’s family wanted answers to when they filed a wrongful death lawsuit against the rehabilitation center. After a jury trial, the woman’s family was awarded $14 million in damages and another $100 million in punitive damages.

The woman’s family said that they hope this will help prevent it from happening to someone else. When a family member suffers from negligent care in a medical facility such as a rehabilitation center, the family is entitled to compensation and the center should be held accountable.

Residents Performing Unsupervised Operations

lawmed10@yahoo.com (blog Author)35846 — Mon, 26 Jul 2010 08:00:00 EST

Anyone who has been operated on or has someone close to them who has, knows that every surgery has its risks and the value of the words, “everything went well.” Whether patients are being placed asleep with anesthesia or remain awake during the procedure, they are left in the hands of their doctor.

As with most professional careers, medicine is an industry where nothing can take the place of hands on experience. That is why even after four years of college and two more in medical school, aspiring physicians are required to obtain hands on education. After medical school, these students perform residencies in their field under the supervision of experienced practitioners. In residency, which may last anywhere from 3-7 years, depending on the specialty, these doctors-in-training are supposed to be supervised by the senior physicians.

The system works fairly well so long as the rules are followed. However, a trend is emerging in which understaffed hospitals are having residents perform operations without the necessary supervision of an experienced doctor. The risks that such a situation can create can be deadly.

A recent lawsuit filed in Illinois illustrates these dangers. A medical center and several of its doctors are accused of having medical students or residents perform operations without supervision and sometimes in an entirely different building than their supervising doctor.

The risk is exacerbated by the increasing demands being placed on doctors to be in two places at once. Doctors are thus tempted to have one resident perform a procedure while the doctor is overseeing another. Having residents perform operations without supervision means more surgeries can be performed and the doctors practice can be more profitable.

The unfortunate reality is that the majority of medical mistakes are made by new doctors and medical students. This is especially true in the early summer months when senior residents graduate and new residents start their training. This is just simply a cost of training the next generation of doctors. However, when experienced doctors begin cutting corners and having their residents do work without supervision, the risk becomes too great.

Norwich, CT Obstetrician Sued for Baby's Death

lawmed10@yahoo.com (blog Author)35847 — Mon, 26 Jul 2010 08:00:00 EST

Nothing could be scarier for an expecting mother than experiencing complications during child birth…except experiencing child birth complications and not being able to get in touch with your doctor.

That is what happened to a woman in Connecticut when she went into labor and her obstetrician did not respond to calls placed on his home and office. The obstetrician was by her side only an hour earlier when he prescribed Pitocin, a drug that stimulates contractions. After prescribing what may have been an excessive amount of the drug, the doctor left without noticing that the unborn baby was suffering from distress related to its heart. The baby was born via an emergency Cesarean but suffered a lack of oxygen causing brain damage and five weeks later, death.

No one knows why the doctor was unable to be reached because a wrongful death lawsuit is pending against him. After the incident, the doctor was sanctioned by the Connecticut health department to the tune of $5,000. The doctor’s medical group also shut down, closing its doors on an estimated 5,000 patients.

The lawsuit seeks compensation for the injuries the baby suffered and the wrongful and untimely death suffered because of medical negligence. In New York, medical negligence is defined as a departure from good and accepted medical care by a physician in the community. If that departure is a substantial factor in causing the patient injury that could lead to the doctor or hospital having to pay compensation to that injured patient or their family.

Are you more likely right than wrong? Proving a medical malpractice case in New York

lawmed10@yahoo.com (blog Author)35772 — Sun, 25 Jul 2010 08:00:00 EST

When you bring a civil lawsuit in New York, the burden of proof is on us to prove your case at a trial. What exactly is the “burden of proof?” It is that level of proof that is known as the “preponderance of evidence.”

Well what exactly does that mean?

It means that we have to show that we are more likely right than wrong. It means that we only have to tip the scales ever so slightly in our favor in order for a jury to award a verdict in our favor. You may be familiar with the burden of proof in a criminal trial which requires that a prosecutor prove their case “beyond a reasonable doubt.” That is an extremely high burden for the prosecutor to meet, and does not apply in civil cases.

Civil cases do not require that jurors debate endlessly to make absolutely sure that what an injured victim is claiming is correct. Instead, we need only show that your claim is more likely right than wrong. Once a jury determines that what we are trying to say is more believable, then they are required to render a decision in our favor.

But what exactly does the jury have to do in order to render a verdict in our favor?

Juries are provided with specific questions that they must answer at the end of a trial. This is known as "jury interrogatories." In a medical malpractice trial here in New York, the first question a jury will generally be asked is whether there was a departure from good and excepted medical care. If the answer is “yes,” then the jury has to determine whether that departure was a substantial factor in causing injury.

If the answer is “yes,” then they proceed to the next series of questions concerning how much compensation to award to the injured victim. While there are many variations of questions that a jury can answer, generally, they are asked to consider how much to award for past pain and suffering, as well as future pain and suffering. In addition, if there is a claim for lost earnings they will be asked how much money this individual has lost in earnings and over what period of time it's going to apply for. There can also be claims for economic losses as well as medical expenses.

Gerry Oginski wins $1.5 Million Verdict in Podiatry Malpractice Case

lawmed10@yahoo.com (blog Author)35769 — Sat, 24 Jul 2010 08:00:00 EST

On Friday, July 23, 2010, a Westchester County jury in the Supreme Court of the State of New York determined that my client, Annemarie Flannery was entitled to be compensated $1.5 million as compensation for injuries caused by a podiatrist during bunion surgery. Her husband, David Flannery was entitled to be compensated $50,000 for his lost services claim.

The case involved a claim of a failure to properly perform foot surgery involving my client's bunion on her right foot. It was our claim that the podiatrist removed too much bone during the procedure, and improperly positioned the first metatarsal. As result, this changed the dynamic forces of her foot and forced her to bear most of her weight underneath the second and third metatarsals in her foot. We also claimed that the patient should have had her second and third metatarsals surgically shortened during her first bunion surgery. This would have prevented the problem from arising.

Instead, the patient developed pain, pressure and discomfort on the bottom of her foot following surgery. The podiatrist recommended corrective surgery to shorten the second and third metatarsals eight months after her first surgery. The patient became quite frustrated and no longer had confidence in the ability of the podiatrist. She then went to an orthopedic surgeon with a specialty in foot and ankle surgery in Manhattan. He performed surgery to shorten the second and third metatarsals, but because of the damage already taken place, his surgery was unable to fix the primary problem.

Since conservative treatment failed she's been offered additional surgery to correct the problem to shorten bones in her foot, or as an alternative, to undergo destructive surgery that will fuse bones in her foot. There are no guarantees that these surgeries will help improve her condition. At the present time, she has elected to deal with the pain and discomfort on a daily basis and may need to have one or both of these surgeries in the future.

After two weeks of a hard-fought trial in Westchester, and after listening to testimony from the podiatrist, the podiatrist's expert, our expert, the treating physician and the plaintiffs, the jury determined that this podiatrist departed from good and accepted podiatric and surgical care; that this departure was a substantial factor in causing my client injury, and that she was entitled to be compensated.

The jury awarded her $375,000 for past pain and suffering, for the last five years.
The jury awarded her $1,125,000 for future pain and suffering, representing future injury over the next 30 years.
The jury awarded her husband $50,000 for his loss of services claim.

This verdict represents a remarkable statement by a unanimous jury.

BREAKING NEWS-Gerry Oginski gets $1.5 million verdict in Westchester

blog@www.oginski-law.com (news Author)16451 — Fri, 23 Jul 2010 08:00:00 EST

In today's breaking news, Attorney Gerry Oginski obtained a $1.55 million dollar verdict in a case involving a failure to properly perform foot surgery. The case took two weeks to try and the jury was given the case today, Friday, July 23, 2010. A unanimous verdict of six jurors resulted in the following awards:

Past pain and suffering: $375,000
Future pain and suffering: $1,125,000
Past loss of services on behalf of the husband: $50,000

Total: $1,550,000

The jury in Westchester County Supreme Court here in New York found that the podiatrist departed from good and accepted podiatric and surgical care, and that the departure was a substantial factor in causing my client injury.

Scanning the Dangers of MRI's

lawmed10@yahoo.com (blog Author)34841 — Thu, 08 Jul 2010 08:00:00 EST

Gadolinium Based Contrast Agents Cause NSF

Doctors routinely make difficult decisions as to what drugs and substances to give patients and in what circumstances. Patients rely on their doctors to make safe decisions on their behalf. That is why patients become upset when doctors administer substances to patients after the Food and Drug Administration (FDA) identifies such substance as harboring potential health hazards.

Magnetic Resonance Imaging (MRI) is a common diagnostic procedure that provides images of the internal structures of the body. Doctors inject contrast agents prior to performing an MRI because they are dyes that make the internal structures of the body more clear during the scan. Many of these contrast agents contain a chemical called Gadolinium.

Gadolinium is removed from the body via the kidneys. Its use is a risk for people who are prone to kidney problems and has recently been found to cause Nephrogenic Systemic Fibrosis (NSF). NSF is a painful and incurable illness that causes fibrosis on the skin and several organs. Recent reports indicate that Ominscan, Magnevist and Optimark may be the most likely Gadolinium based contrast agents to cause NSF.

Consider a case where a woman was given a Gadolinium based contrast agent despite the fact that she was on Dialysis. The FDA has issued a “black box” warning for these sorts of contrast agents because of its correlation to cases of NSF. Nonetheless, the doctors still injected the chemical into the woman and she wants to know why.

The woman is now bedridden and cannot perform daily activities without becoming exhausted. NSF typically hardens the skin around the joints making even minimal movement painful. Further, the mortality rate of NSF patients increases to fifty-percent after two years.

There are other contrast agents that can be used in lieu of Gadolinium based agents. These alternatives may have not have put this woman’s life at risk. She and her family want to know why her doctors gave her a Gadolinium based contract agent despite her already suffering kidneys and the strictest of warnings from the FDA.

There can be little doubt that doctors are burdened with making difficult decisions over drugs and treatments. However, in the case of Gadolinium base contrast agents, such decisions are hard to understand.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

NY Medical Malpractice lawyer has solution for medical malpractice

lawmed10@yahoo.com (blog Author)34585 — Sat, 03 Jul 2010 08:00:00 EST

The answer is simple. But first, some background.

Doctors typically don't want anything to do with lawyers. Lawyers are viewed with scorn and villified by many doctors.
Lawyers, just as the general public, rely on doctors for their own health care. There are some doctors who claim that they over-order tests in order to practice 'defensive medicine'. Others cry that lawsuits are responsible for outrageous verdicts that drive up health care costs. Doctors also blame lawyers and lawsuits for their outrageous medical malpractice insurance premiums. Yet, the more I hear these same arguments, the more I wonder why nobody focuses on the real problem.

I've been following the arguments on both sides of the malpractice issue since 1985, when I first entered law school. My family was all doctors; my father too. Some say I was the black sheep of the family. It's been almost 22 years since I first started practicing medical malpractice law in New York and I continue to be amazed at how little is given to the actual problem; Medical Malpractice.

Remember I said the solution was simple? It is, at least in theory.
Get rid of the malpractice and there's no problem any more. There, I've said it. Now, let's see it happen.

Here's the logic and ripple effect behind that argument:
If you have no malpractice, then there's no injured victim.
There's no extended hospital stay; no extensive surgical repair; no untimely deaths due to medical carelessness.
That means there's less costs to the patients; less revenue to the doctors and hospitals; less money paid by medicare and medicaid for medical costs.

That means that doctor's malpractice insurance companies will wither away and go out of business since there will be no need to insure any doctors. That means lots of lost jobs and income for insurance executives. Baaad news for them. Good news to obstetricians, neurosurgeons and orthopedists who pay almost $200,000 per year, if not more, just to get insurance coverage.

If there's no malpractice, then there's no lawsuits against doctors and hospitals. That means there's no business for medical malpractice lawyers like myself. Looks like I'll have to go into the real estate business instead. If plaintiff's lawyers are not bringing any medical malpractice lawsuits then medical malpractice defense attorneys and their large Manhattan law firms will go out of business, since they rely on lawsuits to keep them in business and on retainer by the insurance companies. Baad for them, and for me.

If there's no injured victims, and doctor's insurance rates disappear, then there should no longer be any friction between doctors and lawyers. Patients will love their doctors; doctors will love the lawyers (if that's somehow possible) and the insurance and legal industry for medical malpractice will head off into the sunset, never to appear again.

It's at this point that I wake up from my daydream and shake my head. "This will never happen," I think. Too idealistic. Although it would be ideal if there were no carelessness by physicians in NY, the reality is that only a small portion of doctors are responsible for the vast majority of malpractice lawsuits today.

Why aren't the critics of health care reform focused on the injured victim? Instead, they're more worried about health care costs than the permanent disability of an innocent and helpless patient who was injured at the hands of an incompetent doctor or hospital.

Stay tuned for my next daydream, when I explain the solution for world peace.

How Does a Hospital 'Lose' a Patient?

lawmed10@yahoo.com (blog Author)33448 — Mon, 14 Jun 2010 08:00:00 EST

With all of the procedures and staff at medical facilities, it is hard to imagine a patient becoming lost. Nonetheless, this happens more often than one would expect and can often have tragic results.

For example, a Pittsburgh woman suffering from dementia was routinely placed in a well-respected medical center. The woman, left unattended, wandered onto the roof of the medical center where she remained overnight. With temperatures dropping as low as twenty degrees that night, the woman was found dead the next morning as a result of hypothermia.

With the recent turn in the economy, hospitals and medical centers are becoming routinely understaffed. This is particularly so during night shifts in which many medical facilities operate on a skeleton crew. This unfortunate reality results in patients, like the woman from Pittsburgh, receiving less than standard care.

Mistreatment due to understaffed centers is frequent although the situation in Pittsburgh is an extreme example. More frequently, injury comes from patients being left unattended in their rooms when an accident like a slip and fall occurs, treatment or medicines not being delivered due to oversight, or even worse, the wrong treatment or medicine is given to the wrong person.

Medical facilities do face a seemingly insurmountable challenge when facing such a large number of patients while dealing with budget constraints. Nonetheless, patients come to medical facilities to become healthier, not suffer additional injuries due to negligent care. The Pittsburgh woman’s family was ultimately awarded a large financial settlement but their family member is gone forever. Not because of the disease she suffered from, but because of the care she received for it – or lack thereof.

There is no shame involved when a medical facility lapses in care due to being understaffed or overworked. It has probably happened to all of us from time to time. However, when dealing in healthcare the stakes in these cases are literally life and death.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Mysterious Pain or Telltale Sign? Should Doctors be Liable for Failing to Diagnose Illnesses?

lawmed10@yahoo.com (blog Author)33134 — Wed, 09 Jun 2010 08:00:00 EST

What is the most important tool in communication? Speaking? Writing? The most important tool in communication is listening. When patients communicate with their doctors, this is what they should be focused on, listening. Doctors are taught in medical school to listen carefully to what complaints the patient has since the patient is in the best position to tell them what’s going on.

For three years, a woman in Maine told her doctor that she suffered from chronic pain in her back and hip. Unbeknownst to her and her doctor, the pain in her bones was actually cancer spreading throughout her body. Although the woman is now being treated with chemotherapy, irreparable damage was caused by the delay in diagnosing and treating her cancer.

This story is echoed by a case in South Carolina where a woman went to a hospital reporting that she had back and stomach pain. The hospital diagnosed her with kidney stones and sent her away. Merely 48 hours after being discharged she died from sepsis, which is a system-wide infection throughout her body.

In the fast paced world that we all live in today, it is no surprise to see a decrease in attentive care throughout the medical profession. Primary care physicians are people like the rest of us. Living in a fast paced society means that they can not afford as much face time with patients as they may want and their patients may need. The result is that patients, like the woman in Maine and the woman in South Carolina, may not be receiving medical care from a doctor that communicates effectively with them.

On the other side of the coin, doctors do not want to test patients for life threatening illnesses every time someone comes in with a cold. Also, patients do not want to go through time consuming, potentially embarrassing, and expensive tests that may end up being unnecessary. The real issue in these cases and in healthcare across the country, is that doctors just need to listen more and stop making decisions on whether a patient’s health care insurance will or will not pay for certain tests.

Although both sides of the issue have defensible positions, the jury in Maine awarded the woman with cancer one million dollars. Similarly, the jury in South Carolina awarded three million dollars. These cases illustrate how important it is to have doctors that actually listen when patients discuss their symptoms.

Doctors should not feel obligated to inundate patients with unnecessary tests. Instead, they should listen to what patients have to say. In situations where patients report an issue and it goes undiagnosed, the reason may not be that the issue is simply too much of a mystery to solve. Rather, it might just be that no one is listening.

To learn more about how these cases work, I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, and I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Groin-Punch "Game" Harms More Boys

lawmed10@yahoo.com (blog Author)32916 — Sun, 06 Jun 2010 08:00:00 EST

“Childish Game Can Result in a Very Grown Up Condition”

The old adage “boys will be boys” is taking on a new meaning. A recent study indicates that teen boys are engaging in a game referred to as “sack-tapping” in which they slap or punch each other in the groin. Popularized by the television show “South Park,” this game can result in traumatic and permanent injury.

Trauma to the groin in young men can result in testicular torsion. This condition involves the twisting of veins and arteries that carry blood to the testicles. Testicular torsion can be treated early after its onset. However, if left untreated, the condition can kill the testicle and require surgical removal. I recently represented a young boy who had testicular torsion where doctors in an emergency room failed to timely recognize that his testicle was twisted and dying. I even created a video to help people understand what testicular torsion is. You can see the video here.

Even though testicular trauma can result in such a serious condition, “sac-tapping” has only become increasingly prevalent. The number of pubic region injuries in boys 10-20 has increased 63% over just the last two years. Further, 30% of doctors have indicated that they have seen “sack-tapping” injuries in the last year.

Perhaps the most unfortunate aspect of the condition is that many children are getting it as a result of the increasingly popular “sack-tapping” game. As if young boys are not already reluctant to talk about their genitalia, these children are often the victims of bullying and therefore even more reluctant to come forward. Making the issue worse is how this behavior is minimized through language and popular media. Calling it a “game” can be used as a guise for bullying. Despite giving the behavior playful names or popularizing it through TV, it can lead to serious and permanent damage. Doctors have stressed that the behavior simply cannot be tolerated.

Parents have begun to look to school officials to help prevent this behavior. Some have even suggested that laws should be passed placing an onus on schools to prevent it from happening. While doctors and public surveys make communities aware of the problem, school officials have yet to do anything to prevent it. School administrators are the closest to the issue and therefore in the best position to thwart this behavior. Once school officials become aware of the issue within their schools, there is no reason that they should not be held accountable for children who become injured from these harmful acts.

“Sack-taping” is not just a game; it is a serious problem that leads to serious injuries. Something needs to be done to prevent it from happening and the indication is that schools need to start taking on responsibility.

To read actual deposition testimony of a doctor in a testicular torsion case I handled click on the link below. Actual testimony by a surgeon in a failure to timely recognize and treat testicular torsion resulting in death of the testicle

Kidney Cancer-Losing a case you should have won

lawmed10@yahoo.com (blog Author)32899 — Sat, 05 Jun 2010 08:00:00 EST

There are few things more frustrating to a trial attorney than losing a case he should have won. Obviously, there are never any guarantees when taking a case to trial. However, in the recent case involving a failure to timely diagnose kidney cancer resulting in death of a 60-year-old man in Queens County this is exactly what happened.

Mr. Liew needed a kidney transplant. The kidney he received had unknowingly had cancer. The patient's family claimed that the hospital should have taken steps to determine whether the kidney was cancer free, and once they knew about it should have made every effort to remove the kidney in order to prevent spread of the cancer. The hospital claimed that once they learned the donor had cancer, even though the chances were very slim of the kidney having some type of cancer they recommended that the kidney be removed. They stressed that they repeatedly offered the option to the patient, but the patient refused to have it removed.

Should this case have been won by the patient? If you believe the patient's attorney, they had medical experts who claimed and firmly believed that the treatment rendered by the hospital was inappropriate and that it was improper for them to have given this kidney if the donor had cancer. The experts also argued that the kidney should have been immediately removed once it became clear the owner had cancer.

What happened here? The jury determined that the hospital was not responsible, and the patient lost not only his life but his lawsuit as well.

A patient's attorney relies on the medical experts who have reviewed the patient's records to determine whether there is a valid basis to proceed forward with a medical malpractice lawsuit in New York. Should this case have been won at trial? The patient, his family, his attorney and his experts believed so. The jury didn't. That's frustrating.

Why Getting Sick at St. Vincent's Hospital In New York City May Be Hazardous To Your Wealth

lawmed10@yahoo.com (blog Author)31941 — Thu, 20 May 2010 08:00:00 EST

Did you know that getting sick and going to a hospital that has declared bankruptcy may be hazardous to your wealth? It's true.

Here's why: In cases where you are injured by a doctor or hospital, your only recourse is to bring a lawsuit to recover compensation for your injuries.

When the hospital has declared bankruptcy, it is impossible to bring a lawsuit against the hospital until the bankruptcy proceeding has been completed. Declaring bankruptcy means that the hospital does not have enough money to pay their bills; similar to a personal bankruptcy. Where a hospital is self-insured, which means that they do not buy malpractice insurance from an outside company to pay any judgments or settlements arising out of a lawsuit against them. Instead, they set up a fund (where they are self-funded) and set aside money in the event they have to pay out money for any lawsuits; both accident cases and medical malpractice cases.

In a bankrupcty proceeding, the bankruptcy court will try to work with the parties to re-structure the debt that is owed to the many creditors. In many bankruptcy cases involving a self-insured hospital, there may be no money left over to pay any judgment or settlement as a result of any injuries you suffered by that hospital.

Here's what you need to know if you've been the victim of wrongdoing by a hospital, like St. Vincent hospital in New York City that has declared bankruptcy:

1. You must file a claim within the specific time period required by the bankruptcy court.

When you file that claim, you are then listed as an unsecured creditor of the bankruptcy estate. This is legal-speak meaning that you are at the bottom of the barrel when it comes to getting paid for your injuries. In a bankruptcy proceeding, secured creditors are paid first. These are people with specific agreements with the hospital that demand they be paid first. Whatever money is left over is then used to pay "unsecured creditors" such as injured patients. Nice, isn't it?

Unsecured creditors are paid only after everyone else has been paid first. This means that whatever money is left over must now be distributed to the remaining people who are owed money by the hospital.

In reality, that means that if you are owed $1000, you'll probably receive 10 cents on the dollar, which means you'll probably wind up with $10 in your pocket after two years worth of litigation. The practical reality is that most experienced New York accident or medical malpractice attorneys will refuse to accept a case knowing that a patient has been harmed at a hospital that is currently in bankruptcy. That's not to say they won't; only that it's difficult to convince an attorney to take a case, knowing that there is a chance that you, their client, will receive very little, compared to what you should be entitled to receive if there were no bankruptcy.

The bottom line is that if you suffered injury as a result of improper medical care and treatment at a bankrupt hospital, it will be extremely difficult, if not impossible for you to get full and fair compensation for your injuries New York. Beware of going to a hospital for medical treatment that is known to be in bankruptcy.

Physical Therapy You Can Expect to Receive After a Car Accident

lawmed10@yahoo.com (blog Author)30410 — Fri, 23 Apr 2010 08:00:00 EST

Today's guest post is written by Shannon Wills, who writes on the topic of Physical Therapy.

An automobile accident is a traumatic experience, one that brings on various mixed feelings. On the one hand you’re grateful to be alive, but on the other you’re wondering how you’re going to cope with the injuries the mishap has left you with. Different accidents give rise to different kinds of mishaps, so your treatment needs tend to vary accordingly. In general, if you suffer broken bones and sprained muscles, you may need surgical care first before moving on to physiotherapy.

Once you’re out of the hospital and ready to resume normal life, a physical therapist’s work is to help you re-learn all the activities that you did with ease before you were injured. Your joints and muscles need to be coaxed into working the way they did before the accident, and the exercises designed by your therapist help you achieve this.

If you’ve suffered neurological injuries, physical therapists can help you regain a sense of normalcy in your life. They work with you and train you to re-learn simple things that allow you to live independently – like how to brush your teeth, bathe and dress yourself, and even fix a simple meal to stave off hunger. Of course, the outcome of the treatment depends on the extent of your injuries, but there is proof to show that healthy parts of the brain can learn to do what the dead or injured cells normally did as a matter of routine.

Physical therapy also helps car accident victims when there is damage to the spinal cord; in tandem with neurological therapy and massage therapy, physical therapy has been used to improve the lives of patients with injuries to the spinal cord that disable them and leave them confined to bed or a wheelchair. Therapy helps them keep their muscles strong and prevent them from atrophying because they’re not using them. Also, massages are relaxing and also help release toxins and excess fluids which are trapped in your system and which cause debilitating pain.

The most common application of physical therapy after an automobile accident however is for joint, bone and ligament injuries. Once the corrective or reconstructive surgeries are done, it is up to you to do what it takes to get back to normal. Your therapist will set up an exercise program which you have to adhere to everyday. Once you reach a certain stage and are able to do certain things, your therapist steps up the intensity of the exercises and moves you up to the next level. All the exercises are targeted towards increasing mobility, improving flexibility, and enhancing muscle strength.

The right physical therapist can work wonders after a car accident, even for people who have suffered extensive injuries and are confined to bed for a long time.

ABOUT
This guest post is contributed by Shannon Wills, on the topic of Physical Therapy Assistant. She welcomes your comments at her email: shannonwills23@gmail.com.

Death From A Ruptured Shunt-NY Medical Malpractice Lawyer Explains

lawmed10@yahoo.com (blog Author)29438 — Sun, 04 Apr 2010 08:00:00 EST

Welcome and thank you for joining me. I'm Gerry Oginski a New York Medical malpractice and personal injury trial lawyer practicing law here in the State of New York.

Today's tip is is about a man who bled to death after undergoing dialysis. This man had been receiving dialysis for about a year or two. And in the week before the fateful day he had been complaining to the nurse and the technician who set up the dialysis equipment that he was having pain in his arm where the equipment would be attached.

Dialysis patients have something called an AV shunt, which is a connection between the artery and the vein that resides in the arm. And the nurse or the technician attaches the needle into that shunt in order to filter the patient's blood.

Now, about a week before the fateful day the patient had been complaining about pain in his arm and had told the nurse each time. The nurse pooh-poohed it and didn't really give it much thought and never bothered to call a doctor over to take a look at it. Why is that important? Well, it's important because on the day that the patient left dialysis he went home. And what happened was his wife came home from lunch that day, and as she proceeded to walk toward the front door she noticed that there was blood on the front steps. As she opened her front door she continued to follow the trail of blood. That trail led her directly her first floor bathroom. When she opened the bathroom what she saw looked like a murder scene.

Her husband was collapsed on the floor in a pool of blood. There was blood on the ceiling. There was blood on the walls. There was blood everywhere. There were open packages of bandages that had been opened and were on the floor.

The New York City Medical Examiner determined that he had attempted to apply pressure to stop the bleeding and by the time he got into the bathroom and was furiously trying to rip open bandages to apply pressure to his arm that was insufficient. And the medical examiner also determined that it took this man about five minutes to bleed to death. The fact is that this man died as a result of a shunt that ruptured, that was never diagnosed correctly and never treated. Because if a doctor had correctly recognized the infection in the shunt, he could have been treated with antibiotics and he could have had surgery to remove that shunt and put it in a different location.

It's clear from the New York City Medical Examiner's investigation that there was carelessness on the part of the dialysis center for not taking a look at the patient's shunt, especially when he had complained of it.

That's it for today's tip. I want to thank you for joining me. I'm Gerry Oginski. Have a great day.

New Jersey Lawyer Liable for Not Telling Medical Malpractice Clients of Settlement Offer

lawmed10@yahoo.com (blog Author)29187 — Tue, 30 Mar 2010 08:00:00 EST

According to Law.com, a Mercer County, N.J., jury on March 22 found veteran litigator Gerald Stockman liable for legal malpractice for failing to convey a $400,000 offer to clients in a personal injury case, which ended in a verdict substantially lower.

Any attorney who handles personal injury cases has an obligation and ethical responsibility to convey to their client any offer that is made to them by the defense. It is then the attorney's obligation to discuss with them the merit and value of the offer. Ultimately, is the client's decision about whether to accept or reject an offer. However, like with many things, it's all in the presentation.

What do I mean?

I will often be questioning a doctor and ask how they presented the treatment plan. The doctor will usually say that he made various recommendations, and ultimately it was the patient's choice about which procedure to choose. This explanation usually rings hollow since most patients do not have any medical knowledge and rely entirely on the physician to make a recommendation.

There is a big difference between a doctor saying "Don't worry, we're going to do this procedure, and you'll be fine." Compare that statement to "You have the following three alternatives in this situation; you can do procedure number one, which has the following risks and benefits, or you could do procedure number two which has these limited risks or you could do procedure number three which has no risks. Which would you prefer?"

Likewise, when an attorney presents a settlement offer to their client, it's all about the presentation. An experienced attorney will tell the client about the settlement offer, then give his advice about what they think of the offer and whether it should be accepted. The client will then make a decision. Often, the client relies on the attorney to offer professional advice and experience since they have been in this position many times before.

In this case, there was a clear dispute between the experienced medical malpractice attorney in New Jersey, and the client's recollection of events immediately after trial. A jury listening to the legal malpractice case evidently believed the victims and not their attorney.

In cases that have significant settlement offers, a good attorney will often put their client on the witness stand, outside the presence of the jury, and under oath, ask their client whether they have been advised of the large settlement offer, and whether they are rejecting it of their own free will. This protects the attorney in the event a verdict comes in for less than the offer or, a verdict comes in for the defense. This way, the client can never turn around and say that he or she was never told about the settlement offer.

MEDICAL MALPRACTICE IN NEW YORK; FACTS AND TRENDS

lawmed10@yahoo.com (blog Author)29141 — Mon, 29 Mar 2010 08:00:00 EST

FACT:

Patients sue doctors and hospitals. They’re unhappy with the outcome of a procedure; they’re upset because a doctor misdiagnosed their condition and now they have a permanent injury or disability. That’s a fact. However, the facts and trends show an entirely different story.

Fact:
Most victims of medical malpractice in NY don’t even know they’ve been a victim of improper medical care because nobody tells them.

Trend:
Many victims are never compensated because they don’t realize they’ve been injured as a result of someone’s wrongdoing.

Fact:
The majority of meritorious cases that are brought are settled at or during trial.
Trend: Of those cases that are disputed and go to trial, doctors and hospitals win the majority of them, sometimes between 66%-80% of the time. Those are impressive statistics for the defense. The reasoning why doctors and hospitals win many cases has many components:

Juries like doctors;
Juries rely on doctors, nurses and hospitals for their own care and are loathe to blame a medical professional unless the treatment was glaring and obvious;
Juries have been conditioned and brain-washed by the insurance companies to believe that all lawsuits are frivolous, regardless of what happened or how or who should be taking responsibility for their own actions;
Jurors do not want to spend someone else’s money to give to an injured victim, believing that by giving away money, their own insurance rates will increase.

Trend:
Many people believe that just because they did not get an optimal result or perfect outcome that they’re entitled to bring a lawsuit for some type of compensation.

Fact:
Just because a patient believes something was done wrong, or that their outcome was not perfect does not mean that there’s a basis for a valid case. Each case must be reviewed by a medical expert who confirms (1) that there was wrongdoing; (2) that the wrongdoing caused harm; and (3) that the harm is significant and/or permanent. Without that confirmation, it is impossible to bring a lawsuit in New York.

Trend:
Injured victims wait until their families and friends have encouraged them to speak to a lawyer about a lawsuit. Sometimes, they wait too long.

Fact:
There are very strict time limits here in NY to bring a lawsuit against a private doctor or hospital. If your treatment happened in a municipal (City-owned) or a State-owned hospital, you have a very limited time to file a notice of claim, and then a very limited time to file your lawsuit. If you wait longer than the required time, you will likely not be able to bring a lawsuit for any injuries you believe were caused by a doctor or hospital. That’s why it’s so important to speak to an experienced medical malpractice attorney immediately. You don’t want to have an attorney tell you that you would have had a valid case, if only you had come in earlier.

To learn more about how medical malpractice cases work in New York I encourage you to explore my website http://www.oginski-law.com. If you have legal questions, I urge you to pick up the phone and call me at 516-487-8207 or by email at lawmed10@yahoo.com since I can answer your legal questions.

How Do You Choose a Medical Malpractice Lawyer in New York?

lawmed10@yahoo.com (blog Author)28972 — Fri, 26 Mar 2010 08:00:00 EST

You have a lot of choices. “Who’s the best?” “Who has the most experience?” “Who can get you the most money for your case?” “How do I know I can trust him?” “What does it cost to hire an experienced trial attorney?”

These are all valid questions and I’m going to answer each one here:

“Who’s the best?”

There is no specific answer for that question. There are a lot of good attorneys. However, lawyers are not permitted to say “Come to me because I’m the best…” The best at what? With what type of case? Under what circumstances? What set of facts? Which court? As of when? There are too many variables that it really becomes impossible for anyone to say “I’m the best.” Anyway, if a lawyer says that, they’d probably get in trouble with the ethics committee that governs what attorneys can say. Yes, it’s true; there is an ethics committee that controls what lawyers can say in their marketing messages.

“Who has the most experience?”

That’s easy to find out; just ask. “How long have you been handling and trying medical malpractice cases here in New York?” Warning: Just because a lawyer has been in practice longer than someone else, does not necessarily mean they are automatically “better” than a lawyer who has been in practice for less time.

“Who can get you the most money for your case?”

The answer to that question is impossible to answer. I know of lawyers in a trial law firm in New York City who privately comment on large jury awards and settlements and quietly boast that they could have gotten more money on a particular case. Could they have done so? Who knows? Is there any way to really know? No. Is there any way for a consumer to get an educated and intelligent answer to that question? No. Why not?

Each case is different. Each case has its’ own peculiar ups and downs. Each case is located in a different court before a different judge. Each defense attorney and their insurance company has their own peculiar standards. If an attorney tells you that they can get you “X” dollars for your case, or that they can get you more money than any other attorney, ask them to put that in writing. It will never happen, because no lawyer, no matter how good or experienced, can ever guarantee a result.

“Trust”

This is clearly the hardest thing to judge. You’ll make a judgment about the lawyer when you walk into their office. From their furnishings to the attorney, you are constantly thinking about how this lawyer can help solve your problem. There is no central lawyer directory where you can check to see which lawyers are trustworthy. Satisfied clients are just one way to judge the quality of a law firm and the lawyers that work there. However, you will probably not get very far to ask for a list of unhappy or disgruntled clients. You can always check with the grievance committee to see if there were any disciplinary actions against that attorney. However, that only proves a negative. If the lawyer has never had a complaint or been disciplined it only means that there’s never been a problem. It does not mean that the lawyer is worthy of your trust.

The best way to answer that question is to talk to the lawyer yourself; meet with the lawyer and judge for yourself. Obviously, you can’t always accurately tell that by talking and meeting with an attorney. However, it will give you a much better sense of who you’re dealing with compared to you never having met the attorney.

“What does it cost to hire an experienced New York trial lawyer?”

Nothing; at least not upfront.

“What does that mean?” It means that you can hire an experienced attorney without having to pay a dime out of your pocket when you begin. If you have a valid case and you start a lawsuit, the attorney and his law firm will pay all the expenses to prosecute your case till the end. Only if you are successful, and you receive money as a result of your lawsuit, will your attorney receive a percentage of what you win. This is commonly known as a contingency fee. The lawyer’s fee is contingent on you getting compensated. If you are not successful in your case, your lawyer gets no money and has spent a considerable amount of money to prosecute your case, without ever getting repaid. That is why most experienced attorneys will be very selective about which cases they accept. An attorney will usually only take a case if he reasonably believes you have a valid case (and must confirm that with an expert physician). Otherwise, he will never recoup the money he has paid to prosecute your case, or receive any attorney’s fee for the hundreds and thousands of hours of time he will put in to prosecute your case to a conclusion.

By becoming an educated consumer about who to choose as your attorney and learning about how cases like yours work, you’ll be able to make an intelligent decision about which lawyer is right for you.

For more information about how medical malpractice lawsuits work in NY, I encourage you to explore my website, http://www.oginski-law.com. If you have legal questions, I urge you to pick up the phone and call me since I can answer your legal questions at 516-487-8207 or by email at lawmed10@yahoo.com.

Retained Lap Pad-Patient Needs 2nd Surgery To Remove

lawmed10@yahoo.com (blog Author)28194 — Sun, 14 Mar 2010 08:00:00 EST

I questioned a nurse last week in a case where a sponge was left inside a patient during gynecologic surgery.

She was a "scrub nurse" who assisted the doctor with instruments during surgery. It was her obligation, together with the "circulating nurse" to keep track of how many instruments were used; how many needles were used, and how many sponges or lap pads were used.

A lap pad is a 6" x 6" white cloth used to soak up fluid during surgery. Attached to this is a blue string which is radio-opaque. Attached to the blue string is a large white plastic disc. The reason the string is attached to the cloth is so that it will show up on x-ray, if an x-ray is taken.

The scrub nurse and circulating nurse are supposed to count the number of pads used during surgery. They are supposed to confirm each other's count. This is to ensure that there is nothing left behind in the patient at the time surgery is completed. You don't want the nurses and doctors to have that 'aha' moment where someone says "Oops, I can't believe I left that inside of you!"

In this particular case the patient complained of abdominal pain immediately after her surgery and continue to have worsening abdominal pain over the next 2-3 days. An x-ray revealed that there was a lap pad left in the patient's belly.

When I asked the nurse how many pads she counted at the end of surgery, she told me that the count was correct. She also told me that the circulating nurse had the same correct number as she did. She informed me that three days later, a nursing supervisor showed her the patient's x-ray which clearly showed a lap pad still in the patient's belly.

I asked her to explain how her count was correct if there was a retained pad in the patient's belly. She stressed that her count was correct and could not explain how this happened.

Traumatic Brain Injury

lawmed10@yahoo.com (blog Author)27975 — Wed, 10 Mar 2010 08:00:00 EST

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.

According to Center for Disease Control and Prevention, a traumatic brain injury (also known as TBI) is an affliction that 1.4 million Americans sustain each year, 50,000 of which don’t survive. While TBI’s have differing levels of severity (ranging from mild to severe), they are usually acquired from a simple injury to the head and/or neck. Falls are the leading cause accounting for 28% of TBI’s, while motor vehicle accidents account for 20%. However, motor vehicle accidents have a higher frequency when it comes to TBI hospitalizations, which studies have shown effect over 280,000 people each year. The causes of the injury are wide in variety and can occur from open or closed head injuries to deceleration injuries (also known as a diffuse axonal injuries), but its complexities delve much deeper.

A traumatic brain injury can have life-altering effects on a victim’s emotional and physical well-being, but can also do severe damage to the physical nature of the brain. The injury may require years, if not decades, of special care and rehabilitation from care facilities like CareMeridian, Las Vegas Nursing Home. The impairments from a brain injury can affect speech, vision, coordination, the short term and long term memory, and may even result in mood swings and behavioral changes in personality. Considering that every brain injury is different, rehabilitation depends on the individual case and injury; yet, prevention is possible.

For an injury as debilitating as TBI, prevention is essential. Luckily, prevention is not difficult. When driving, the best way to avert a TBI is by wearing a seatbelt and not being under the influence of alcohol. In fact, according to the Brain Injury Association of America more than 50% of people with a brain injury were intoxicated at the time of their injury. It’s also smart to always wear a helmet when riding a bike, thus reducing the risk of a head injury by almost 90%. If the right precautions are taken, the severity of TBI’s can be reduced if not prevented.

There is a lot that is still unknown about the inner workings of the human brain. However, one thing known for certain is the life changing affects that a TBI can have on its victims as a result of irreversible damage to its function.

Man dies after 10 calls to 911

lawmed10@yahoo.com (blog Author)27495 — Mon, 01 Mar 2010 08:00:00 EST

There are some cases that we read about where you shake your head and wonder "What were they thinking?" You get a gut feeling that something was done wrong; an injustice that should have been addressed.

This is one of those cases.

In today's Newsday, writer Dan Neffin reported that a man having severe abdominal pain called 911 for emergency assistance. The man's girlfriend, Sharon Edge called 911 and was repeatedly told "help is on the way." Help never came. The boyfriend, Curtis Mitchell, died in his home without anyone ever coming to take him to a hospital.

Of course this story would not be complete without explaining that on February 6, 2010, the day he suffered severe pain and needed to go to a hospital, heavy snow was falling which brought Pittsburgh to a standstill. In addition, because of the snowstorm he had no electricity and was waiting for an Ambulance while huddled under a blanket.

Recently in New York we had a case involving a gentleman who passed out in a store and there were two emergency medical service workers at the store who apparently refused to render assistance to him. Their excuse was that they were telephone operators and had not rendered medical assistance in more than 15 years despite the fact that they were wearing their emergency medical services uniforms while on a lunch break.

If this had happened in New York, would there be liability against the city and emergency medical services?

To answer that question you need to look at the relationship between the person calling and the relationship of person giving information. The person calling is requesting an ambulance for an emergency medical condition. The telephone operator who answered the call, according to news reports, promised that help was on the way. The operator then contacted ambulance personnel and there were at least a dozen calls between 911 and paramedics. One could argue that there was an obligation together with reassurances to the victim that help was on the way and that assistance would be there shortly.

Interestingly, Pittsburgh public safety director Michael Huss said that the victim might have survived if he had been carried out to an ambulance.

Anytime you have a failure by a municipal agency to timely act, the question always is whether that delay in getting to the patient would have made a difference. If the answer is yes, then you have a strong argument that they had an obligation to attend to this man, and that their failure to timely get him to a hospital caused and contributed to his untimely death.

Just unbelievable.

I Can't Believe I Slipped On Ice!

lawmed10@yahoo.com (blog Author)27150 — Tue, 23 Feb 2010 08:00:00 EST

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.

It amazes me the speed at which someone goes from walking vertically to being flat on your back in a horizontal position looking straight up at the sky. I took one step on the uneven ice and in a fraction of a second wound up landing on my left elbow laying flat on the ground.

I know some people may find this amusing knowing that an attorney slipped and fell on ice in the back of his own office building, and that's OK. I also would have found it amusing and ironic except for the exquisite pain that remained in my elbow as I walked up to my office. Luckily for me, the pain dissipated and thankfully did not break anything, at least not that I know of.

This brought me back to thinking what an attorney must be able to prove in a case involving a slip and fall on ice in New York. We must show that the property owner knew or should have known of the dangerous condition. We also have to show that the dangerous condition existed for a sufficient period of time so that the property owner should have fixed it to prevent injury to someone walking on their property.

In this particular case large patches of ice existed in the parking lot for an extended period of time. One could argue that the property owner knew or should have known of this icy condition. This is especially true since this is a heavily used and trafficked area for tenants in the building. A property owner cannot simply ignore or put their head in the sand and pretend the dangerous condition does not exist.

A property owner will typically argue that the changing weather conditions made it impossible for him to know exactly what the conditions were at any given time. This is especially true when temperatures rise above freezing during the day, and then as night approaches, the temperatures drop to below freezing levels and you have refreezing. In my case, I think it would be impossible for the owner to make that argument.

However, here's where many cases run into problems. Not only do we have to show that the property owner was responsible for the accident, but we also have to prove that the injuries you suffered are significant and/or permanent. What does this mean for someone who suffered bruising and the temporary loss of their dignity? It means that most experienced personal injury attorneys will shy away from taking a case unless the injuries are severe and serious.

The moral of the story?
It's time to have a nice chat with the owner of the building about ways to improve the parking lot to prevent people from suffering injury.

Gerry's Video Made The New York Times Blog!

blog@www.oginski-law.com (news Author)12961 — Mon, 22 Feb 2010 08:00:00 EST

The other day when I opened up my e-mail, and I saw a Google alert with the title "When Black Ice Strikes, Who is to Blame?" I was confused when I noticed my name was attached to the title and the website URL was from the New York Times online blog. I knew I hadn't created an article or video with that title, so I clicked on the link to the New York Times and was pleasantly surprised.

The writer, J. David Goodman was writing about how black ice affects people in New York City. In the article he mentioned one of the videos I made involving a woman I represented who slipped and fell in a parking lot on black ice. The key question I raised in the video was who is to blame if you slip and fall and suffer injuries on ice or snow? The answer is never clear cut.

There is always the issue of who was responsible for maintaining and cleaning that part of the property. Sometimes it's a property owner, sometimes it's a municipality, and oftentimes it is a snow plow company that is hired to keep the sidewalk or property clear of snow and ice.

I have written extensively about slip and fall cases on snow and ice and those articles appear here on my website and in video tips on my New York personal injury video blog. If you have legal questions about a slip and fall on snow or ice, I encourage you to pick up the phone and call me or e-mail me since I can answer your legal questions. You can reach me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

HAVE YOU EVER HEARD OF A DOCTOR SAY "I'M NOT GOING TO ORDER A TEST OR PROCEDURE, BECAUSE IT COSTS TOO MUCH?

lawmed10@yahoo.com (blog Author)27005 — Fri, 19 Feb 2010 08:00:00 EST

DOCTORS WORRIED ABOUT COSTS?

I just read an article by James A. Greenberg, M.D., and Errol R. Norwitz, M.D., PhD, medical editors of "Reviews in Obstetrics & Gynecology." The editorial was titled "Creating the World's Most Expensive Circumcision. The article was sent to me by a friend of mine who is a physician who thought I might enjoy it.

Here's the premise behind the editorial:

Circumcisions in ancient times didn't cost anything. Now, they're expensive. Now, you have anesthetic, antiseptic, nursing care, gloves, sterile equipment and on and on. So far so good. In fact, the editorial even was interesting from a contrasting viewpoint of how they performed circumcisions in ancient times compared to now.

The authors real bias didn't hit me squarely in the head until the last paragraph. They shifted gears and started talking about rising health care in the United States. Here's the statement that really bothered me:

"Robotic surgery, fetal surgery, and umbilical cord blood collections are examples of technological advances that have crept insidiously into clinical practice without proven benefit and with disastrous consequences for healthcare costs. Cooler and more rational heads must prevail both for smaller procedures (eg, newborn circumcision) and larger national initiatives."

Wow! Talk about putting cost before health. These authors believe that fetal surgery has no proven benefit. They state that cord blood collections have no proven benefit. They fail to recognize the tremendous amount of medical literature that supports the use of cord blood to help specific medical diseases. They totally ingore the benefits to the patients and their families who have benefited from these innovative treatments and procedures. That's the point of being part of a technologically advanced society; to better ourselves and our children.

Unfortunately, these physicians and their editorial appear only concerned with cost. What a pity.

Testicluar Torsion

lawmed10@yahoo.com (blog Author)26310 — Sun, 07 Feb 2010 08:00:00 EST

Your child complains of pain in their testicle. There was no trauma or accident. You look and don't find anything wrong. Your child still complains. You give him a warm bath. He still has pain.

Testicular pain can be a warning sign that your child may have a twisted testicle, also known as testicular torsion. Failure to timely diagnose and treat a twisted testicle by a doctor or hospital can result in death of the testicle. How?

When the blood supply to the testicle gets cut off or reduced because it is entangled or twisted, you have a limited window of opportunity in which to have it fixed before the testicle dies. The key warning sign is pain. Don't ignore it. At the hospital, they have doppler color flow tests to evaluate whether there is blood flowing through the spermatic cord and into the testicle.

If you have legal questions, I urge you to pick up the phone and call since I can answer your legal questions at 516-487-8207 or by email at lawmed10@yahoo.com. I welcome your call.

Gerry
The Law Office of Gerald Oginski, LLC
25 Great Neck Rd., Ste. 4
Great Neck, NY 11021
516-487-8207
lawmed10@yahoo.com

$2.9 Million Settlement for Death of 6 Year Old While in MRI

lawmed10@yahoo.com (blog Author)26311 — Sun, 07 Feb 2010 08:00:00 EST

In a horribly tragic case in Westchester, New York, a 6 year old boy was killed while undergoing an MRI in 2001. A technician had been walking by with an oxygen cannister that should never have been in the area because of the powerful magnet being used. The cannister became a missile and struck and killed the little boy.

The hospital publicly admitted liability and initially offered the family $1 million to settle. The offer was rejected. After 9 years of tortured litigation, motions and appeals, the family finally settled this case for $2.9 million.

New York Attorney John Hochfelder does a great job evaluating and giving a full analysis of this case, together with his reasons for why this death case had such a high value. He commends New York attorney Tom Moore, senior partner at Kramer Diloff Livingston and Moore for having the tenacity to achieve what most other attorneys could not have accomplished. I wholeheartedly agree with John's assessment of Tom Moore and Matt Gaier.

To read the entire blog post, click here.

New York Personal Injury Law Firm Sanctioned $6,000 For "Spiteful" Lawsuit

lawmed10@yahoo.com (blog Author)25850 — Thu, 28 Jan 2010 08:00:00 EST

This falls under the "Stupid is as Stupid does" Forrest Gump category.

It was inevitable. A woman hired New York personal injury law firm Morelli Ratner to represent her in a medical malpractice case. Shortly thereafter her case was dismissed and the woman brought a lawsuit for legal malpractice against her lawyers. Morelli Rattner then brought a lawsuit against the woman (their former client) seeking to recover $6,000 in expenses that they had incurred to prosecute her medical malpractice matter.

In a scathing decision by Judge Goodman in New York County Supreme Court, she sanctioned the law firm of Morelli Rattner $6,000 for their ridiculous lawsuit seeking to recover legal expenses against their former client. She called their lawsuit "spiteful" and "wasteful."

Law.com, where this story initially appeared, reported the case name: Kremen v. Benedict P. Morelli & Associates, P.C., 101739/06.

Unbelievable.

Excessive Radiation Kills 2 New York Patients

lawmed10@yahoo.com (blog Author)25542 — Sun, 24 Jan 2010 08:00:00 EST

Today, January 24, 2010, the New York Times exposes two severe instances of cancer patients in New York, who died not of their cancer, but of excessive radiation doses to TREAT their cancer. This is a moving video.

In an expose video, the Times explains how excessive radiation doses are never disclosed to the public. The New York State Department of Health has identified over 130 instances of careless administration of radiation, and the two people profiled in this report were the most severe.

It is very troubling that when a patient who has been diagnosed with cancer seeks life-saving radiation treatment to try and cure their underlying disease, that the personnel, the manufacturer of the radiation equipment and the hospitals failed miserably to recognize their mistakes BEFORE causing permanent and irreversible damage.

Everyone needs to watch this video.

"Almost" Doesn't Count

lawmed10@yahoo.com (blog Author)25511 — Fri, 22 Jan 2010 08:00:00 EST

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.

When I explain to these callers that "almost" doesn't count, they get angry. They can sometimes get defensive. "What do you mean 'almost' doesn't count? Are you telling me that if I had died, I'd have a case?" The answer sometimes is "Yes."

In New York, an attorney must be able to prove that a doctor or hospital was careless. The legal terminology is that the doctor departed from good and accepted medical care.

We must then be able to prove that the doctor's carelessness was "a" cause of your injury. Legally, this is known as 'causation'. I say "a cause" because we are not required to prove that the wrongdoing was the "only cause." This is especially true when there may be multiple explanations for what occurred.

The last point we must be able to prove is that you suffered significant and/or permanent injury as a result of the wrongdoing. A temporary bruise doesn't count. Almost dying doesn't count.

Often I will ask a caller to answer the following important question:
"What do you think was done wrong that caused you permanent harm?"

This question contains each of the three elements needed to establish a valid case in New York. If any part of the answer includes "almost," remember that "almost" doesn't count.

Ambulance Chasers

lawmed10@yahoo.com (blog Author)24775 — Sun, 10 Jan 2010 08:00:00 EST

The first time I heard the term "ambulance chaser" I must have been in college. I had no idea what it meant. I had no idea it was a derogatory term. In fact, I had no idea what personal injury lawyers did or why someone would call them an ambulance chaser.

That all changed when I went to law school and decided to be a medical malpractice and personal injury trial lawyer. I learned that some people referred to personal injury lawyers as "ambulance chasers" to reflect an attorney's eagerness to get accident cases in order to make money. Many felt that lawyers encouraged the public to actively bring lawsuits just to generate fees for these over-eager and zealous attorneys.

Yet the more I learned about the world of a personal injury and the attorneys who handled significant cases, the more I realized that these were hard-working, ethical people who had a true desire to to help injured victims recover compensation. These were not the 'money-grubbing', no-holds-barred people, described in the press. These lawyers wanted to reform the way businesses made defective products; they saw ways to help the little guy when nobody else would. Would they earn money by helping? Yes. Would they lose money if they lost. Definitely.

Long gone are the days when accident attorneys trolled the emergency rooms for trauma victims, handing out cards. Long gone are the days when lawyers descended on plane crash victims as soon as the news reports went live. Long gone are the days when a lawyer would hang around a funeral home waiting to talk to a widow. This type of conduct is notoriously evident in the Paul Newman movie, "The Verdict," where Paul Newman plays a down-and-out injury attorney trolling for cases wherever he can find them.

There have always been lawyers who skate on the border of what might be considered questionable conduct. However, I am happy to say that the great majority of my colleagues are on the right side of justice and do everything possible to help when tragedy strikes.

Imagine if there were no trial lawyers to speak out for those who could not. There would be no recalls of defective toys; defective cars or defective medications. If there were no trial lawyers, businesses would have free rein to limit wages to workers and fail to pay them compensation if they were injured on the job. If there were no trial lawyers, companies would never change the way they built their products since there would be no incentive for them to change if their product caused someone harm.

If there were no trial lawyers, you would be unable to navigate your way through the legal system when you broke your hip after tripping and falling on a broken sidewalk that had not been fixed for five years. No trial lawyers means you'd have no idea what to do when an oncoming car crossed the double yellow line crashing into you head-on and you're in the hospital for the next seven months recuperating from permanent brain injuries. You'd be at the mercy of the car insurance company and would probably accept whatever they wanted to pay you.

Trial attorneys are advocates for injured victims. It's that simple. If you call that advocate an 'ambulance chaser' or any other derogatory term, that's your choice. However, that advocate would stand up for you if you were injured because of someone else's carelessness. What would you call that lawyer then? "Friend," perhaps?

Nyack doctor fined $150,000 by state

blog@www.oginski-law.com (news Author)12049 — Sun, 03 Jan 2010 08:00:00 EST

The Lower Hudson Valley news reporter Jane Lerner wrote yesterday that a Nyack radiologist was fined a whopping $150,000 for performing medical tests on patients who didn't need them. Imagine that.

The article reports that Dr. Joseph Anthony Vittorio did not contest the negligence charges against him by State officials.

"State investigators said Vittorio ordered unwarranted videoflouroscopic imaging by failing to establish any legitimate medical need for such a test, according to records. The state Board for Professional Medical Conduct also found that Vittorio "failed to adequately obtain complete histories and perform appropriate physical examination" when treating patients between 2004 and 2005."

Settlement Reached at Same Time as Jury Verdict-Result?

lawmed10@yahoo.com (blog Author)23854 — Wed, 23 Dec 2009 08:00:00 EST

This medical malpractice case, tried in Kings County Supreme Court, also known as Brooklyn, NY had a bizarre twist.

The case involved a man who underwent knee surgery and suffered permanent injury. The first trial resulted in a verdict of $1.5 million. After appeal, the case had to be re-tried. During the second trial, as the jury was deliberating, the parties agreed to settle the case for $150,000. The jury, almost simultaneously announced they had reached a verdict.

The judge refused to allow the parties to put the settlement on the record! The jury decision was announced: $1.4 million for the injured victim. Defendant appeals. Read the article by John Hochfelder to see what happened on appeal.

EMTs Accused of Ignoring Dying Woman Get Suspended, Investigated

lawmed10@yahoo.com (blog Author)23857 — Wed, 23 Dec 2009 08:00:00 EST

Two New York Emergency Medical Technician's employed by the New York Fire Department were suspended yesterday for failing to help a pregnant woman after she had collapsed. Instead, according to reports, they directed people to call 911. How's that for cold comfort?

Both mother and baby died. Results of the autopsy are pending.
Read the article here at Gothamist for a chilling account of indifference by people who are paid to help injured victims.

NY Medical Malpractice-How To Find an Attorney

lawmed10@yahoo.com (blog Author)23718 — Mon, 21 Dec 2009 08:00:00 EST

It's holiday time. You're sitting around the table listening to family members discuss the tragedy that has befallen on someone close to you.

You hear these questions:

"How did this happen?"
"Why did this happen?"
"Why didn't the doctor speak to us after it happened?"
"What if..."
"Nobody is telling us what's happening."
"What's going to happen to him?"
"Who can watch the kids, while the adults go to the hospital and keep a constant vigil?"

Someone pipes up and says "We should speak to a lawyer."
Someone else says "Who? We don't know any lawyers."

Where do you start to look for a lawyer when you have questions?
What questions do you need to ask a lawyer to determine if you might have a valid case?

The answers to these questions can be found; the key is knowing where to look.

A consumer typically would open their yellow pages to look for a plumber; but an attorney? Some would.
Maybe they'd jot down a phone number they saw on daytime TV from a lawyer saying "INJURED? Call me."
Maybe they'd remember a catchy jingle they heard on the radio about some lawyer.

If this is how you want to start your search, ask yourself this important question:
How do those ads help you distiguish one lawyer from another?
How can you tell whether those lawyers are right for you?
The answer is that you can't.

You need to look for an attorney who provides you with free books; free reports; free video tips and explains the legal process. You need this information BEFORE you ever make an appointment and walk into an attorney's office. This way, you'll know what information you need to know before ever speaking to an attorney.

Do New York Doctors Wake Up and Say "Who Can I Injure Today?"

lawmed10@yahoo.com (blog Author)23782 — Mon, 21 Dec 2009 08:00:00 EST

With all the talk about health reform today, and proposed 'tort reform' by Republicans together with sensationalized lawsuits in the newspaper today, it's no wonder that many people think that they're "Entitled" to money just because they had a bad outcome.

Our society is conditioned to think, rightfully so, that if they've been wronged, then they have a right to go to court and obtain compensation from the person or company that caused them harm.

When it comes to medical malpractice lawsuits in New York, do you really think that your doctor woke up that morning and said to himself (or herself) "Who can I injure today?" Unlikely. Instead, what we experienced lawyers regard as a departure from good medical practice, may, in the mind of a physician be simply a bad judgment for which a patient had a poor outcome.

Remember, not every bad outcome represents malpractice. I often tell potential clients when they call that "Just because you suffered a complication or a bad outcome, does not necessarily mean that you have a valid case. You may, but you need to know how an experienced lawyer evaluates a case like yours."

Many people who call an attorney automatically think that because the doctor had a bad bedside manner, or the patient is now worse off than when they had the treatment, then something must have been done wrong. That type of thinking is often not accurate.

Also, contrary to popular belief, the majority of good medical malpractice lawyers refuse to take most cases because either they lack merit, or the damages (injuries) the patient suffered is not significant. Our role has been described as a gatekeeper, keeping out most cases that do not belong in the legal system.

Do some cases get through that should not? Yes.
Do some over-zealous attorneys take on a case that should not be brought? Yes. But this extremely small percentage is statistically insignificant and the jury system works in those cases by discarding those that lack merit, and rewarding compensation to those that rightfully deserve it.

Gerry Oginski gives Lecture on Medical Malpractice for Continuing Legal Education Course

blog@www.oginski-law.com (news Author)11687 — Mon, 14 Dec 2009 08:00:00 EST

Items discussed:

Statute of limitations for medical malpractice in New York and the six major exceptions.
How to recognize a possible medical malpractice case.
What an experienced attorney needs to look at when evaluating a potential medical malpractice matter in New York
Examples of cases.
Referrals and retainers.

Failure to Diagnose Aneurysm

lawmed10@yahoo.com (blog Author)22545 — Fri, 27 Nov 2009 08:00:00 EST

What is an aneurysm? It’s a balloon-like bubble that appears on the side of a blood vessel. The wall of the blood vessel becomes weakened. If it gets too weak, the blood vessel will rupture and you can bleed to death rapidly.

There are different types of aneurysms: Abdominal aortic aneurysm; cerebral aneurysm and many others. An aneurysm is often diagnosed by angiogram, where a dye is injected and is visible on x-ray, CAT scan or MRI. Many aneurysms do not require intervention. Only where it may be life-threatening or is already leaking does immediate treatment become necessary.

A leaking abdominal aortic aneurysm is often mistaken for cardiac symptoms. Such a mistake has deadly consequences. Likewise, a blood vessel in the brain that leaks often has devastating results.

The failure to recognize a dissecting or rupturing aneurysm can prove fatal. The key is understanding what the standard of care was at the time. In New York, a physician must confirm that there was a deviation from the standard of care, and that departure from good care caused injury, in order to start a medical malpractice lawsuit here in New York.

"Please Take Over My Medical Malpractice Trial...NOW" pleads woman in middle of a trial

lawmed10@yahoo.com (blog Author)21986 — Tue, 17 Nov 2009 08:00:00 EST

I received a call late tonight from a woman who was in the middle of a medical malpractice trial here in New York. She asked whether I would like to take over her case since she was unhappy with how her attorney was representing her.

I told her that it would be impossible since the trial judge would not suspend her trial just to get a new attorney. Nor would the judge give her a 'do-over' because she didn't like the way the testimony was going in to the jury. The middle of a trial is not the time to realize that you don't like your attorney.

I told her there was nothing I could do to help her, and that any questions or concerns she has, should be directed to her current trial attorney. She didn't seem very happy with my response. In addition, I told her that even if she would be able to discharge her lawyer and another one came in to take his place, the first lawyer would have a significant lien against the attorney's fee for all of the work he did up to that point.

That means that the second lawyer would have very little incentive to take on a case with such baggage.

The bottom line?

Get to know your attorney before ever getting to trial.

How to Ask Your Treating Doctor to Be Your Expert in Your Medical Malpractice Case

lawmed10@yahoo.com (blog Author)21754 — Sat, 14 Nov 2009 08:00:00 EST

In every medical malpractice case here in New York, we are required to prove your case using a medical expert. The expert must have confirmed that there is wrongdoing; that the wrongdoing caused injury; and that your injury is significant and permanent.

Many times, you, as the injured victim, may be unaware that there has been any wrongdoing. The first inkling of a problem is where one physician criticizes the treatment you had by another doctor.

Let's say you experienced a bad outcome with Doctor #1 and now continue your treatment with Doctor #2. This doctor will have much more information than a doctor who merely reviews your medical records as an expert. It is always preferable to have a treating physician come into court and testify not only about his review of your medical records, but also about his physical examination of you; his findings; and his treatment plan.

I often have clients ask me "How do I ask my treating doctor if they will come into court and be an expert in my medical malpractice lawsuit?" Here's my response:

I always recommend that you be up front and honest with your treating doctor. Let him know that you have significant concerns about the treatment you received in the past. You might suggest letting your current doctor know that in order to prove a valid claim against the original doctor who caused you harm, it is necessary for you to bring in a medical expert who can talk about what the standard of care is in your community. I always advocate that doctors should stand up and be able to say, without fear of retribution, whether a colleague treated a patient appropriately and in accordance with good and accepted medical practice.

In many medical specialties, there is great reluctance for physicians to stand up and speak out against their colleagues, regardless of what town, county or state they practice in. In those cases where the patient's own treating doctor refuses to cooperate and come in as a medical expert, we have no choice but to go to our own stable of medical experts to review the records and comment upon them.

Years ago, I had two different malpractice cases which were coming up for trial. I specifically tried to contact expert witness doctors who were known for frequently testifying for doctors and hospitals. I wanted them to review a case on behalf of an injured victim. To my surprise, neither one of these physicians would agree to review the records on behalf of my clients. The purpose of bringing in an expert medical witness is to explain to the jury what the records mean and have an experienced physician interpret those medical records.

If an expert witness has testified for both sides, is much harder to show that this expert witness is entirely biased. It is much easier to show a consistent bias if the expert doctor testifies only for doctors and hospitals.

The bottom line? Tell your treating doctor that without having his knowledge and expertise to help prove your case, you will need to hire someone who has not had the benefit of his expertise and his examination and treatment of you.

How to Choose a New York Lawyer From a TV Commercial

lawmed10@yahoo.com (blog Author)21755 — Sat, 14 Nov 2009 08:00:00 EST

Fact: You've been involved in an accident and are now sitting at home recuperating. You turn on the TV to watch mind-numbing daytime television (apologies to all those who do this on a regular basis) and notice that there is a lawyer commercial after every single TV break. You finally realize that you need an attorney to help solve your legal problems that were caused by your accident. But each lawyer ad that you see says pretty much the same thing. How do you decide which law firm is right for you just by watching these 30 second lawyer commercials?

The bottom line is that you can't and here's why:

Most lawyer commercials are 30 seconds long. In those 30 seconds, they don't have the ability to explain to you how they can help solve your legal problem. An attorney's goal in creating a 30 second message is basically to catch your attention so that you might pick up the phone and call them immediately after watching the commercial. Practically every personal-injury commercial gives you the same information. Ask yourself whether these overly-used common phrases help you distinguish one lawyer from another when watching these television commercials:

'Injured?'
'Been in an accident?'
'We can help'
"Over 60 years combined experience'
'You may be entitled to a cash award'
'We fight for you'
'The insurance companies are afraid of us'
'We know the judges'
'Call me now'

If you watch any daytime TV, these phrases should be so ingrained in your head that they are all mind-numbingly useless. None of this information helps distinguish one lawyer from another. If every lawyer is shouting out the same message, how do you, as a consumer, use that information to make an educated decision about which lawyer is really the right one for you?

Unfortunately, in those 30 seconds lawyers do not have the ability to explain to you how they can help solve your legal problem. Those truncated commercials don't give you free reports that explain what they can do for you and what they have done in the past. Those commercials do nothing more than shout at you and tell you to call them. Importantly, they never explain why you should pick up the phone to call them.

The next time you see a lawyer commercial, and ask yourself why you should call that attorney. Does that lawyer answer the question of why they are the right lawyer for you? 99.9% of the commercials don't answer that key question. They may be the right lawyer for you. Then again, they might not.

Your goal as an injured victim searching for an attorney is to become as educated as possible to determine which lawyer is the right one for you. Only by becoming educated will you be able to make proper decisions about which lawyer to hire. I will tell you that I have been a practicing lawyer for over 21 years handling accidents and medical malpractice cases here in the state of New York. I study lawyer commercials and lawyer advertisements, and I find it difficult, if not impossible, to answer the question of why one particular law firm should be called simply based upon their 30 second television commercial. If you can find a compelling reason to call one law firm over another based solely on their television commercial, then I congratulate you.

How to Choose a New York Lawyer From the Yellow Pages

lawmed10@yahoo.com (blog Author)21756 — Sat, 14 Nov 2009 08:00:00 EST

Fact: You've been injured and need to hire a New York attorney to represent you in your accident or medical malpractice case.
Fact: You don't know an attorney, and don't know a family member who knows an attorney.
Fact: You decide to look in the Yellow Pages for an attorney.
Fact: If you live in the New York metropolitan area, your Yellow Pages book is likely to have 30-40 pages worth of lawyer ads. The first 10-15 pages will likely be full-page color ads. After that, you are likely to find full-page ads in yellow or in white. After that, you are likely to see half-page ads or quarter-page ads.
Fact: Many law firms now take out two full-page ads, which are known as "double truck" ads, or even four full-page consecutive ads.

Question: How can you, as a consumer, tell the difference between a law firm that has a half page ad compared to a law firm that has two full-page ads? The answer is: You can't. Why not?

In order to answer that question let me ask you if the following phrases help you decide which lawyer is right for you:

"Injured?"
"Free consultation"
"Hurt in an accident? Get the money you are entitled to."
"We fight for maximum cash awards for the seriously injured"
"Aggressive and skilled trial lawyers"
"No fee unless we recover"
"Experience counts"
"Millions recovered in settlements and verdicts"
"No settlement, no fee"
"Over 20 years experience"
"Tell the insurance companies you mean business"
"Same day appointments"
"Immediate hospital and home visits"
"Convenient locations"

Do these phrases sound familiar? If you have opened your phone book, they should. These types of ads are found in practically every state in the country. Why? Because attorneys like to follow the crowd and think that if all of their competitors are doing the same thing, it must be working.

Getting back to the question I asked above, how do these phrases help you distinguish which lawyer is right for you? The bottom-line answer is: They don't. None of these ads educate you about whether a particular law firm can help solve your legal problem. None of those phrases above help distinguish one law firm from another. Rather, they rely on who can shout out the largest message that will catch your eye as you turn the pages from one law firm to another.

Do you really want to select an attorney the way that you hire a plumber? By picking out the biggest ad there is, thinking that bigger automatically means that the company you are hiring is better than someone who has a smaller ad? There is simply no way for a consumer to tell the difference. I will tell you that I have been in practice for over 21 years representing injured victims in accident and medical malpractice cases here in New York, and I cannot tell the difference between one firm and another from a yellow pages ad. If an experienced lawyer can't distinguish one law firm from another, how then can you expect a consumer to make an intelligent decision about which law firm is right for you?

The problem with Yellow Pages ads is that they do not convey information that you need to know before deciding whether to hire a particular firm. A law firm with a smaller ad may be the right one for you. On the other hand a law firm with a big four-page ad may have the money and resources to properly prosecute your case. Did you know that a full-page ad in the Yellow Pages here in New York costs $25,000-$30,000 for one year? Most people don't know that.

When looking to hire an attorney, you need to ask whether the firm has experience handling cases just like yours; who will be handling your case on a day-to-day basis; what information does the law firm provide before you ever walk into their office; whether they provide free reports, free books or even free video tips.

Only by becoming an educated consumer can you make an informed decision about which law firm is right for you.

How to Hire a New York Medical Malpractice Lawyer Without Paying a Dime (upfront)

lawmed10@yahoo.com (blog Author)21757 — Sat, 14 Nov 2009 08:00:00 EST

Fact: You have been injured as a result of improper medical care. You are now looking for an attorney to help solve your legal problems. How do you hire a medical malpractice lawyer in New York without having to pay a penny (upfront)?

The answer is simpler than you think.

Before I get to the answer, it's important to understand how lawyers were paid 100 years ago. When someone had a legal problem and they went to an attorney, the attorney expected to be paid for the time he spent working on their legal matter. In some consumer-oriented types of law, many consumers did not have money to pay for legal services. In some cases lawyers began to barter with clients; they'd exchange goods and services, in lieu of cash. For complicated cases, unless the attorney was willing to take on the case "Pro Bono," which means free of charge, the client would be unable to hire a lawyer if he did not have sufficient funds to pay.

In the mid-20th century, lawyers realized, especially in accident and medical malpractice matters, that many injured victims simply did not have the finances to hire an experienced trial attorney. In order to get around this problem, lawyers developed a formula that would allow injured victims to hire the best lawyers they could find without having to pay a single dime upfront. What was this plan?

This was the birth of the "contingency fee." This meant that people who could not afford to hire a great trial lawyer could now walk into their office, and if they had a valid case that the attorney was willing to accept, they would not have to pay the attorney a single penny to prosecute their case. The lawyer would pay all of the expenses to prosecute a case involving negligence or medical malpractice. At the end of two or three years, when the case finally concluded, either by settlement or by jury trial, the lawyer would accept a percentage of whatever money he could recover for the injured victim.

This created a "win-win" situation for both the attorney and the injured client. Why?

Simple. The attorney would be the one taking on the biggest risk if he accepted a medical malpractice case on contingency. This meant that he would have to make an educated business decision at the beginning of the case to determine whether it was worth his time and money. If the attorney made a bad investment choice, then the lawyer would be the only one to suffer the repercussions which involved a waste of his time and his own money. If on the other hand, the lawyer was successful in obtaining compensation for his injured client, the client would now receive a substantial portion of the proceeds and the lawyer would be rewarded for his efforts with a percentage of what he was able to recover.

The contingency fee arrangement has remained in place for more than the 21 years I have been in practice here in New York. Many people do not realize that in a medical malpractice case, an attorney's fee is calculated based on a sliding scale. This means that the more money we recover for our client, the less fee we recover. The thinking is that the injured victim should retain more money. This is entirely different than if we represent somebody in a car crash case, where the lawyer's fee is one third (after attorney's expenses).

As an example, if I am able to obtain a $5 million settlement in a medical malpractice case, the total attorney's fee may be around 15%. This is significantly less than in an accident case. Nevertheless, there is still a great incentive for an experienced attorney to take on a significant case. What is the incentive? The incentive is that without an experienced attorney's guidance, the injured victim may be unable to recover any money at all. And without having a contingency fee, where the lawyer's fee is contingent upon success, there is no way that an ordinary person would be able to pay a lawyer an hourly fee for all the work that is necessary to prosecute a medical malpractice case.

The bottom line?

Contingency fees work. They allow people without financial means to hire the best attorney they can find to prosecute their case without ever having to lay out a single penny upfront.

How to Start a Medical Malpractice Lawsuit in New York

lawmed10@yahoo.com (blog Author)21758 — Sat, 14 Nov 2009 08:00:00 EST

If you suspect that you have been the victim of wrongdoing by a doctor or hospital here is what you need to know:

The first thing you must determine is whether you were potential case is timely. If your time to bring a lawsuit has expired, there is nothing you will be able to do to obtain compensation through a civil lawsuit in New York.in order to determine whether your potential case is timely, you really need to speak to an experienced medical malpractice attorney to give you specific legal advice about your set of facts. There are different time limits for adults compared to children; private hospitals compared to municipal hospitals; state-owned hospitals compared to private hospitals; among other time traps that you may not be aware of.

Once you have determined that your potential action is timely, here are the three required elements that must be proven in order to start a medical malpractice lawsuit in New York:

1. You must be able to prove that a doctor or hospital departed from the standard of care.
2. You must be able to prove that the wrongdoing was a cause of your injury.
3. You must be able to show that your injuries are significant and/or permanent.

Each of those elements must be confirmed by a physician who has either treated you or reviewed all of your records. If any one of those elements is missing, then there is no way to bring a viable case.

In order to determine whether each of those necessary elements are present in your case, you must do a thorough investigation. This involves obtaining all of your medical records up to the present time. once all of your records are obtained, a qualified medical expert, or multiple experts, must review your records to either confirm or rule-out a basis for your case.

Once you have confirmed that you have a valid case, then it is actually time to start your lawsuit.

You must prepare a document known as a summons together with a complaint. There are specific legal requirements regarding what must be contained within the summons as well as what you must put in your complaint. If you fail to have all the necessary elements listed there, you will have many legal problems later on down the road. That is why it is so crucial for you to seek experienced medical malpractice counsel in New York to help you with your particular case. Once you have prepared the summons and complaint, you must now file it in the county clerk's office and pay the appropriate fees.

To make matters even more complicated, those documents, known as the "summons and complaint" must now be delivered to the people that you are suing in a very particular manner. If you fail to deliver those papers appropriately, you'll never get your lawsuit off the ground.

Can you do all of this on your own? Sure you could. You could also do all the rewiring in your house even though you are not an electrician. At the same time you might want to handle all of your plumbing needs by reading a few "how-to" books. While you are at it, you might want to repair and replace your entire roof, even though you may know nothing about roofing. and when your car breaks down, make sure you do all the repairs yourself because you read a few articles online about how to replace your transmission.

Do I recommend handling in medical malpractice case yourself? The answer is "No." Not only do you need to know the detailed steps of how to evaluate a potential case, but you need to avoid all of the legal minefields that occur with inexperience. You should know that the doctors and hospitals in New York hire the best defense trial lawyers to represent them in these cases. Unless you have over 20 years of legal experience trying medical malpractice cases, I strongly urge you not to handle your own medical malpractice case, and rather hire an experienced attorney to help guide you through the legal traps you are sure to fall into.

WHY DO LAWYERS USE PRESS RELEASES TO MARKET THEMSELVES?

lawmed10@yahoo.com (blog Author)21590 — Wed, 11 Nov 2009 08:00:00 EST

Every day when I go online, I see press releases that attorneys put online telling the world about what they do for a living. Most of these press releases are typical of the 30 second TV commercial we have grown to hate over the years. Most ads for lawyers and TV commercials lack any real information that help explain why you as a consumer of legal services should choose that particular attorney over any other attorney.

There are certain instances where lawyers have achieved remarkable results, and in those instances, I can clearly understand why an attorney would put out a press release announcing a fantastic result he was able to achieve.

However, I monitor various attorney keywords on a daily basis, and unfortunately most attorneys use press releases simply as another tool to market their bland and ineffective message.

You should also ask "Why is an attorney using a press release to explain that he practices law?"
Many attorneys simply pay a service a monthly fee to create press releases and send them out on a regular basis.

When you see a press release with an attorney's name or law firm, obviously you will Google them to see what else they have online. Take it one step further. Type in the specialty that they practice together with the geographic area where they are located, and see where they come up on the Google search engine ranking area.

Press releases are just another way to shout out to the world "Ooh Ooh pick me, pick me" without giving the viewer any real reason or explanation why you should choose him over any other lawyer.

A Defense Attorney's Agenda

lawmed10@yahoo.com (blog Author)21475 — Mon, 09 Nov 2009 08:00:00 EST

You have brought a lawsuit seeking compensation for the injuries you suffered at the hands of a doctor or hospital. Your goal, is to win your case and to obtain "Justice" for the injury you suffered. Your attorney is known as a "plaintiff's attorney." His entire goal is to obtain compensation for your injuries. His success is directly linked to yours. Should he win your case or settle your case favorably, he stands to receive a portion of whatever is recovered, after his expenses.

Not many people outside of New York recognize that the lawyer's fee in medical malpractice cases in New York only starts at 30% and decreases by 5% as we go up in the amount we recover for you. To put it simply: 30% is the maximum fee allowed in New York. As we go up incrementally, the attorney's fee goes down by 5%. This is known as a "sliding scale."

What does this have to do with a defense attorney's agenda? Everything.

A defense attorney's job is to defend the doctor or hospital as best he can. A defense lawyer gets paid by the doctor's insurance company. He gets paid an hourly fee for the work he performs. It is an unspoken fact that defense attorneys prefer to handle a case as long as possible before having to resolve it or go to trial. Why? The longer they handle a particular case, the more they are able to bill for the work they perform. There is no incentive for a defense attorney to resolve a case sooner rather than later.

Having said that, there are some excellent medical malpractice defense lawyers in New York who recognize troublesome cases at the beginning of a lawsuit. Those experienced trial lawyers will sometimes attempt to resolve a case in the early stages to save the insurance company money by having to pay extensive legal fees, a protracted trial and appeal.

Good defense attorneys who recognize they cannot defend a case will recommend to their insurance carrier that they should make an effort to resolve a case sooner rather than later. An early settlement can often save an insurance company a great deal of money by discounting the ultimate amount of compensation a victim receives years before the case goes to trial.

An experienced plaintiff's attorney recognizes the benefits of early settlement because it means that his client will receive a guaranteed amount of money years earlier, without the need to spend many thousands of dollars. Of course, along with that early settlement proposal, both sides recognize that they expect some type of discount for the benefit of settling early.

The defense attorney's only incentive to settle a case early and save the insurance company money is the knowledge that doing so may put him in good standing with the insurance company. An attorney who saves an insurance company money is likely to benefit from additional cases that the insurance company sends to them as a "reward" for saving money.

Conclusion:

When you wonder why your case is not settling early, keep in mind a defense attorney's hidden agenda and recognize that you may have to go to trial in order to prove your case. Your attorney should recognize this and be prepared to go the distance in every case.

Frivolous Lawsuits in New York City: Where Are They?

lawmed10@yahoo.com (blog Author)20451 — Fri, 23 Oct 2009 08:00:00 EST

"Hey Sam, did you read about the lawsuit where the neurosurgeon operated on the wrong side of the patient's brain?"
"Yeah. I wonder how a brain surgeon could have made such a simple mistake?"

When was the last time that you actually read about a "FRIVOLOUS" lawsuit in the newspaper or one that was reported on TV? Sure there are some stupid lawsuits that should never have been brought; look at the Judge who sued his dry cleaner for thousands of dollars because the dry cleaner destroyed his pants.

But really. Think about the last time you heard about a frivolous medical malpractice case in New York. I haven't heard of one in a long time, and I've been in this business for over 21 years.

I know that when a doctor is sued for providing negligent care and being careless, 99 times out of a 100 they feel they did nothing wrong. Yet the injured victim has a totally different opinion. When you have two competing opinions, where each side has their own medical experts to support their position, if a jury ultimately sides with the doctor, does that mean that the patient's lawsuit was "Frivolous?"

If the patient wins, does that mean that the doctor should have never defended the lawsuit, since his defense was "Frivolous?"

Personally, I think this is semantics; a play on words. Each side can manipulate their viewpoint to show how the other side's position was "frivolous" at the end of the case. What does that mean for the argument for or against the way medical malpractice lawsuits are handled here in New York and throughout the country?

It means that you need to look at the fundamentals of why we, as citizens of this State and Country, are permitted to bring lawsuits. The reasoning even goes back to Talmudic (ancient biblical) times. If someone causes harm to another, they must pay. It's as simple as that. The payback includes actual costs; the cost to replace a destroyed item as well as the intangible cost- the suffering caused when the incident occurred.

Our common law adapted those basic fundamental rights, and gave citizens the absolute right to seek compensation in a Court of law. That rule of law applies to anyone in any State in the United States. If you are a company and a competitor stole your secrets; you have an absolute right to go to court and try to prove that you were wronged and seek compensation from the wrongdoer.

If you are in a business that makes T-shirts and you hired a vendor to supply you with special t-shirts and the vendor breached his contract and you lost hundreds of thousands of dollars; you have an absolute right to go into court claiming breach of contract and try to prove that you're entitled to be compensated for your business losses.

If those businesses lost their cases, for whatever reason, does that mean that they had "Frivolous" cases? If they won their cases, does that mean the people or companies that they sued had "Frivolous" defenses? You see the semantics and how this word "frivolous" has little meaning depending on who won or who lost?

The next time you read about "Frivolous" lawsuits here in New York or anywhere in our great United States of America ask yourself who is claiming the case was frivolous? The winner or loser? Then you'll have a better understanding of their agenda and why they want people to think cases are frivolous.

Thanks for taking the time to read my blog.

New York Judge Rules Health Insurance Company Has No Right to a Lien

lawmed10@yahoo.com (blog Author)20024 — Wed, 14 Oct 2009 08:00:00 EST

Typically, in a medical malpractice or personal injury case in New York, an injured victim has their medical care and treatment paid by their health insurance company. (This assumes of course that they have health insurance and does not discuss the different issues that arise when Medicare or Medicaid are involved.)

When an injured victim brings a lawsuit against the person or company that caused the injury, the health insurance company that paid for your medical bills usually turns around and asks to be reimbursed for that money. That is known as a "Right of Subrogation." If you were injured and need to see a doctor but don't have money to pay, the doctor, knowing that you'll be bringing a lawsuit for your injuries may agree to treat you and he will have a "lien" against the proceeds of your lawsuit. This means at the end of your case, if you are successful, you are required to repay the doctor for his treatment of you.

So what does this have to do with the case of Thomas v. Waller 113940/07, that was just decided by Justice Alice Schlesinger, a sitting judge in the Supreme Court of the State of New York and reported in the New York Law Journal on Tuesday, October 13, 2009? A lot, and here's why:

When your health insurance company gets wind that you have a lawsuit, they hire a company, in this case The Rawlings Company, to go after you and your lawyer to get reimbursed for the medical bills that they paid on your behalf. In some cases, a company like this one has been permitted to participate in the actual medical malpractice or personal injury lawsuit that you have brought against the wrongdoer. They do this to protect their right to get repaid. But here's the problem for them.

If a case is settled for only pain and suffering, the health insurance company is not entitled to get repaid. If the case is settled and money is set aside for medical expenses, then they can get reimbursed. The reasoning is that you should not be allowed to get double the benefit; once by your health insurance company paying for your medical bills, and second, you getting paid for bills that you didn't actually pay out of your own pocket.

In the Thomas case, there was no claim for medical expenses. Nor did The Rawlings Company, on behalf of Oxford health insurance company ask to insert themselves into the lawsuit. Instead, the case was settled prior to trial, with no money set aside for any medical expenses. Now comes Rawlings who says to the injured victim and his attorney, "Pay us the $28,718.05 that Oxford paid for your medical bills. The injured victim says "No way. You're not entitled to it. You don't have a lien, and you cannot assert a right of subrogation since there's no allocation of money for medical bills."

Justice Schlessinger rebuked the health insurance company for claiming that the injured victim was taking advantage of their health insurance company. In fact, she said that the injured victim had a contractual right to receive medical benefits when needed. The bottom line: Oxford Health Insurance and their agent, The Rawlings Company, were not entitled to recover anything.

THE INSURANCE HOAX: HOW DOCTORS AND PATIENTS PAY FOR THE HUGE EARNINGS OF MEDICAL MALPRACTICE INSURERS

lawmed10@yahoo.com (blog Author)19703 — Thu, 08 Oct 2009 08:00:00 EST

You think "Tort reform" is good for you and the economy? Think again.
You think altering the way injured victims are compensated helps lower health care costs? Think again.
You think that doctors' medical malpractice insurance companies don't make huge profits? Think again.

You've got to read this article from the American Association for Justice which describes in detail how insurance companies earn their money and what they do with it. Learn why crying "wolf" just doesn't cut it anymore. This is a must read.

Click here to read THE INSURANCE HOAX: HOW DOCTORS AND PATIENTS PAY FOR THE HUGE EARNINGS OF MEDICAL MALPRACTICE INSURERS.

Woman Hit By Mack Truck Wins $350,000

lawmed10@yahoo.com (blog Author)19460 — Sat, 03 Oct 2009 08:00:00 EST

At 6:30 in the morning a young woman was crossing 23rd Street in Manhattan at the intersection of First Avenue. Despite her crossing with the walk signal, and walking in the crosswalk, a Mack truck carrying demolition debris was making a left turn at the same time. Despite three separate signs that direct drivers to yield to pedestrians, the truck continued to make its left-hand turn knocking down this young woman causing her to hit her head and suffer severe fractures of her wrist.

Police arrived at the scene along with an ambulance, and she was taken to Bellevue Hospital trauma center in New York City for evaluation. In the emergency room she had all of her clothes cut off, she had x-rays, CT scans and a thorough physical exam which revealed the following:

She suffered a bleed in her head, lacerations to her forehead and the back of her head, a contusion, a concussion, loss of consciousness, and a fracture of her wrist in multiple places. She received stitches to the lacerations on her head, and was given a cast to mobilize her wrist and told to follow up with an orthopedic surgeon for further treatment.

A few days later she consulted with an orthopedic surgeon who advised her that she needed to have surgery, known as open reduction with internal fixation and external fixation. What this means is that in order to stabilize the broken bones, she would need to have surgery to put the bones back into place and hold them together with hardware that would be attached to her bones. That is known as internal fixation. In addition, she would also require a device to hold the bones in the place from the outside of her arm, known as an external fixator.

After many weeks of being in a cast with metallic titanium rods sticking out of her arm, the external hardware was removed along with the cast. She remained out of work for a number of weeks, and with physical therapy was able to get most of her motion back.

Despite the fact the trucking company had no defense, they refused to try and settle this case until the day before jury selection.

I'm pleased to say that my client was satisfied the settlement offer of $350,000 which will compensate her for the injury she suffered through no fault of her own.

Apartment Building Fire Results In Significant Property Damage-Tenant Settles for $150,000

lawmed10@yahoo.com (blog Author)19461 — Sat, 03 Oct 2009 08:00:00 EST

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.

Moving The Malpractice Debate Beyond 'Caps'

lawmed10@yahoo.com (blog Author)19025 — Sun, 27 Sep 2009 08:00:00 EST

"Insurance expert says patient safety measures could reduce costs

Former University of Connecticut law professor Tom Baker recently moved to the University of Pennsylvania Law School and its prestigious Wharton School of Business to teach insurance.

While in Hartford, he rose to become a national expert on the impact of medical malpractice litigation on physicians’ insurance costs — and on the costs of health care generally. In recent interviews, he has maintained that the U.S. has long experienced an epidemic of medical malpractice, but is not in the grip of an epidemic of malpractice litigation."

Read the full article here.

Don't Believe The Hype: Medical Malpractice Tort Reform is Not What Americans Want

lawmed10@yahoo.com (blog Author)18719 — Mon, 21 Sep 2009 08:00:00 EST

Philadelphia trial lawyer Maxwell Kennerly hits the nail on the head by scouring through the actual survey that was conducted that leads a reader to conclude that 83% of people surveyed want tort reform.

It's important that you read the actual question that people were asked in order to truly understand the fallacy behind the study and the conclusions the writers wants you to reach.

Good job Maxwell.

To read the full article, click here.

Lawsuit Lottery Jackpot! -Part 1

lawmed10@yahoo.com (blog Author)18632 — Sat, 19 Sep 2009 08:00:00 EST

“Step right up. Just sign your name we’ll enter you into the lawsuit lottery jackpot. Injured in a car accident? Step right up. Injured during surgery? Step right up? Killed by a stray bullet? Step right in. Did you fall and break your leg? No problem, just step right in to our lawsuit lottery jackpot where you’ll have a chance to win millions and live on easy street for the rest of your life. That’s right folks. You too can be a winner in the lawsuit lottery jackpot.” (Carnival music is playing in the background).

“What do I have to do to enter?” asked a curious onlooker.

“Simple,” said the man in front of the tent. “First you have to stand in the street and get hit by that Mack truck over there. Then, you have to make sure the tires run over your legs. Oh yes, make sure the truck is loaded with equipment so the total weight of the truck is about 40,000 pounds. Then, when the truck has finished running over you, make sure you’re still conscious so you feel the excruciating pain of having your legs crushed to a pulp. Then, when you’re bleeding to death, make sure you go into cardiac arrest and are revived by the paramedics.”

“I forgot to tell you...when you get to the hospital, make sure that the trauma surgeons amputate your legs from below your waist because there is no usable skin, bones, veins or arteries to use to reconstruct your legs.

Remember, they were in a pulp, and are now useless to you.”

The onlooker stood there gawking with his mouth wide open but no sound coming out.

“But wait!” said the man, continuing his talk.

CONTINUED IN PART 2...

Lawsuit Lottery Jackpot! -Part 2

lawmed10@yahoo.com (blog Author)18633 — Sat, 19 Sep 2009 08:00:00 EST

CONTINUED FROM PART 1...

“After the surgeons cut off both of your legs, you must remain in the hospital for two months recuperating, then learning how to get around on a wheelchair, which we’ll give you, absolutely free, for the rest of your life.”

“But what about all the activities I could do before, like play baseball, swimming, skiing and riding my bicycle?” asked the onlooker.

“Ah that,” said the man with some hesitation. “You see, all those activities, you have to give them all up. You’re now officially a ‘permanently disabled cripple’. You can’t go around doing those great activities that you used to do once we’ve labeled you a cripple. I mean, what would your neighbors think if we said you’re a handicapped man and they saw you playing basketball or changing a tire on your car? Sorry, that just wouldn’t work."

The onlooker was white as a ghost. He didn’t know what to say.

“Hey kid, not to worry, if you win this jackpot, you’ll be on easy street forever!” said the knowledgeable man with the handlebar mustache and the straw hat and the organ music playing in the background.

“But, how do I get that jackpot?” asked the young man with some trepidation.

“Simple. Just find a lawyer who handles these types of cases. Then file a lawsuit in New York...but you’ll have to hurry because you don’t want to have your case thrown out if it’s not timely. Did you know that you don’t even have to pay a single penny to start your lawsuit? How great is that? Your lawyer does that for you. Isn’t our justice system great?

Well, anyway, as I was saying, all you have to do is talk to your lawyer and after about six months, you’ll go into his office and talk to some other stuffy lawyers who will ask you lots of questions about what happened to you and what you can’t do now. That’s it. You don’t have to show up again until trial.”

“Trial?” asked the young man. “Why trial?”

“Well, without going to trial you can’t get an outrageous verdict that will blow the lid off all other verdicts in the past. Otherwise, your lawyer might just settle your case early to get you chump change,” said the hawker with a straight face.

“How will going to trial get me into the lawsuit lottery jackpot?” the onlooker asked with some interest.

The reply was amazing.

“That’s how you actually enter the drawing contest. See...going to trial is a crapshoot. Even if you have a good case a jury may send you home with little or no money. Why? Who knows- it’s a total crapshoot. But if you have a really good attorney who inflames the jury and shows them gory, bloody pictures of you at the accident scene, they’ll get really angry with the truck driver and his company and want to sock it to them hard.

That’s the part of the crapshoot that gets you your millions. Well, almost,” the man said.

“Tell me more,” said the onlooker.

“If the jury really hates the trucker who caused your accident, they award you millions and millions of dollars.”

“And that’s it? You mean I leave the court house with buckets full of money?” asked the eager onlooker, getting that hungry look in his eye.

“Ah, no, not exactly,” came the reply.

“You see, the defense will argue to the trial judge that the award was outrageous and must be reduced. Even if the trial judge agrees and reduces your award, the defense will still not be happy. Then, they’ll argue to a higher court that the award is so outrageous that it shocks the conscious of the court.”

“Then do I get the buckets of money you told me about?” asked the oblivious onlooker.

“Ah, no, not exactly,” came the reply.

“The higher court can do one of four things:

They can throw out your verdict,

They can reduce it,

They can increase it, or

They can send you back for a new trial.

You see, that’s also part of the crapshoot. You just never know what you’re going to wind up with.”

“I’ll still take my chances,” said the dazed onlooker.

“In that case,” the straw man replied, “you should know that there’s a chance you’ll get nothing.”

“How can I live on easy street with my injuries if I get nothing?” he asked incredulously.

“Well, you can’t. You’d have to go on welfare and on disability, and you’d probably be homeless, but hey, you gave it your best shot. That’s what a lottery is all about, most will lose and only a few will win. You’ll still have your free wheelchair!”

“Thanks for stopping by,” said the man with the handlebar mustache. “If you want more information, just step right in...”

CNN Reports Today: White House offers medical malpractice initiative

lawmed10@yahoo.com (blog Author)18544 — Fri, 18 Sep 2009 08:00:00 EST

"WASHINGTON (CNN) -- The Obama administration announced a $25 million medical malpractice initiative Thursday as part of its plan to rein in skyrocketing health care costs.

HHS Secretary Kathleen Sebelius says 1 percent of health care costs are attributable to malpractive premiums.

The program, administered by the Department of Health and Human Services, will fund grants of up to $3 million awarded on a competitive basis to states and health care systems for implementing and evaluating "patient safety and medical liability demonstrations," according to a release from the White House.

A review of current malpractice reform initiatives will be completed by December, the White House said, and used to evaluate future grant applications."

Oh, I get it, let's spend $25 million to save on health care. How about if they gave that $25 million to uninsured people to actually pay for the medical care they need? Don't you think that would have been smarter?

Don't Let Them Close the Courthouse Doors!

lawmed10@yahoo.com (blog Author)18408 — Wed, 16 Sep 2009 08:00:00 EST

New York's first Constitution of democratic government was passed by the first New York legislature on October 30, 1683. It gave New York citizens a constitutional right to trial by jury in civil cases.

In 1691, that right was reasserted in the revived Charter of Liberties of 1691.

The right to trial by jury in civil cases has been preserved in all New York State Constitutions - 1777, 1846, 1894, 1938. The 1938 Constitution actually states: "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever." (emphasis added)

This is in addition to the 7th amendment guarantee to the right to a jury trial in the U.S. Bill of Rights.

But now, all that is being thrown out the window in order to save money for insurance companies and people and companies that don't do their job appropriately.

Please continually let your state and national representatives know that this is unacceptable.
DON'T LET BIG GOVERNMENT AND BIG BUSINESS CLOSE THE COURTHOUSE DOORS!

This message was written by James Wilkens
President, New York State Academy of Trial Lawyers

The Truth About Malpractice Lawsuits: Business Week Report

lawmed10@yahoo.com (blog Author)18471 — Wed, 16 Sep 2009 08:00:00 EST

Business Week debunks all the talk about health care reform and tort reform.

"Doctors say the suits send health-care costs soaring, but studies show reforms would have little effect

By Catherine Arnst

September 21, 2009

President Barack Obama tapped into a large vein of public support when he suggested recently that he is open to reforming medical malpractice laws. It's common currency in the U.S. that litigation drives medical inflation by forcing doctors and hospitals to resort to "defensive medicine," overtreating patients to avoid lawsuits.

The evidence suggests a much smaller effect. Study after study shows that costs associated with malpractice lawsuits make up 1% to 2% of the nation's $2.5 trillion annual health-care bill and that tort reform would barely make a dent in the total."

To read the full article, click here.

Health Care Reform: Is Medical Malpractice in New York Next?

lawmed10@yahoo.com (blog Author)18366 — Tue, 15 Sep 2009 08:00:00 EST

I read an article today in Newsday by an ‘activist’ that suggested the reason health care costs are so high are because of medical malpractice lawsuits. I will tell you that such a statement is totally false. Why do I say this?

Because there have been studies that show specifically that the two primary reasons health care and medical malpractice costs are so high are: (1) The insurance companies inability to properly plan for and realize significant profit during a down-turn economy, and (2) Private health insurance companies and their profits.

This activist was so radical in her beliefs that she actually suggested that limiting an injured victims’ rights will reduce the cost of health care. She made no mention of compensating an injured victim by the wrongdoer. I am amazed every time I hear such radical comments and here’s why:

Let’s say you own a Picasso painting that is valued at $10 Million dollars. Let’s say that through some carelessness of a painter doing work in your home that painting is destroyed; he accidentally spilled a bucket of paint all over that nice painting. The value of the painting is $10 million dollars and must be repaid. Luckily for you, you have an insurance policy that insured the painting. Do you think it would be fair if a group of ‘activists’ said, “We don’t care what the value of your valuable paintings were, you should only be able to recover a maximum of $500,000 for your damaged painting.”

Let’s see if that’s fair. Maybe you paid a few million dollars for your precious painting. Let’s say that painting’s value increased over the years and now a buyer wanted to pay you $10 Million dollars for it. Before you had a chance to agree to the transaction, your painting is destroyed and now the maximum you can recover for your damages is $500,000. That doesn’t sound right to me. Does it sound right to you?

These ‘activists’ believe that by limiting the amount of money a medical malpractice insurance company pays to an injured victim will reduce the amount of money we all pay in health insurance premiums. To be blunt- that’s nonsense.

Insurance companies are in business to generate profit and make money for their shareholders. When CEO’s of health insurance companies are raking in millions of dollars a year in salary while thousands of people are uninsured, there’s a significant disparity that should not be ignored.

The next time you talk to someone with ‘activist’ views, ask them about their Picasso painting and how they would feel if it was destroyed and could only recover a minimal arbitrary amount. I guarantee you that they won’t have the same viewpoint after that.

Developmental Delays-Why Is Your Child Developmentally Delayed?

lawmed10@yahoo.com (blog Author)17862 — Wed, 02 Sep 2009 08:00:00 EST

You will likely learn about a developmental delay from your child's pediatrician. As your child grows they are expected to meet certain milestones; when a baby turns over, when a baby turns over, when they start to crawl, start to talk, start to walk, etc.

When your child is delayed in meeting their developmental milestones you start to question the pediatrician about why there's a delay. Often, your pediatrician will not be eager to point a finger at your obstetrician or any other doctor. So, how then do you get an honest answer about why your child is delayed?

You need to have your medical records evaluated by experts in the field of obstetrics, neonatology and pediatric neurology. Only then can we determine what the likely cause of your child's problems are from.

Keep in mind that there may be many different explanations for your child's delays:
It could be genetic, or hereditary.

It could be from a lack of oxygen during the course of your labor and delivery.

It could be from distress during labor that went unrecognized causing diminished blood flow and oxygen to the baby.

Regardless of the cause, it needs to be investigated to rule in, or rule out the possible causes. How do you do that? Simple.

You ned to contact an experienced attorney who handles medical malpractice cases on a daily basis. Only then can you answer the question, "Why is my child developmentally delayed?"

If you have legal questions about developmental delays in children I encourage you to pick up the phone and call me. I can answer your questions at 516-487-8207 or by email at lawmed10@yahoo.com.

Botched Gallbladder Surgery

lawmed10@yahoo.com (blog Author)17660 — Sun, 30 Aug 2009 08:00:00 EST

An out-of-work chef was told he needed his gallbladder taken out. It was going to be done laparoscopically. It was "routine." The healing time was minimal and there was no need for an extended hospital stay. The doctors call this procedure a 'laparoscopic cholescystectomy'.

Shortly after the surgery my client started having significant abdominal pain. Calls to the surgeon's office brushed off the his complaints as 'normal post-operative pain'. After two weeks of unremitting belly pain, the patient was told to go to the closest emergency room. An MRI and CT scan revealed the patient needed emergency surgery right away to explore what was going on in his belly.

After surgery at a different hospital, the surgeon told the patient that his common bile duct had been clipped off during the original surgery. As a result, bile continued to back up causing significant pain. During the emergency surgery, the patient required a 12 inch massive abdominal incision so the doctors could explore his entire belly. He also required drains for more than six months sticking out of his abdomen.

The common bile duct should never have been clippped off during the gallbladder removal. The fact that the surgeon failed to recognize it, is a departure from good medical practice. If he had recognized the misplacement during surgery, the clip could have been removed and properly placed.

This surgeon's carelessness resulted in significant pain and the need for emergency surgery for this patient and almost a year of recuperation.

Pardon me, but I'm Not Walmart

lawmed10@yahoo.com (blog Author)17076 — Tue, 18 Aug 2009 08:00:00 EST

I received a call at 7 AM this morning asking whether I was Walmart. I politely told the caller, after rubbing the sleep out of my eyes that she was calling an attorney's office and not Walmart. When I finally awoke, I questioned why this woman would think that I was Walmart.

I don't have a big-box store-front office. I don't discount my fees. I don't offer sales on goods and services. I don't advertise on TV, and I don't have thousands of customers pouring in and out of my parking lot on a daily basis.

As a solo practitioner, I have the benefit of knowing every detail of every case but I handle.
As a solo practitioner, I don't have to ask three associates what was the last thing that happened on your case, when you call asking for information.
As a solo practitioner, I have the privilege of meeting you at your very first office visit.
I have the privilege of being with you when you are questioned at your question and answer session, known as a deposition. I also have the privilege of representing you at trial.

There are many large law firms in New York that are set up differently. The attorney you first meet with may not be the attorney who handles your deposition. The attorney you call to get an update may not be the same lawyer that you met on your first visit. The attorney who handles your deposition may not be the trial attorney who tries your case. There are some law firms that have attorneys dedicated to the pretrial phase of your case, and those lawyers do not try cases. Likewise, those law firms may have teams of dedicated trial lawyers, where all they do is try cases.

I personally found, in almost 21 years in practice, that clients love continuity.

Clients like to know that if they have a question, they can go directly to their point person at the lawyer's office to ask them a question or address any concerns they have. No one likes to be shuffled around from one person to the next. However, the question I always ask is "Do you want to deal with the senior trial attorney from day one?" or "Do you want to go to a large firm with many attorneys to handle your case where you may not speak to the actual trial lawyer until shortly before trial?" The choice, as always is yours to make. Choose wisely.

Conclusion:

Am I Walmart? Clearly not. Obviously, she got the wrong number.

MEDICAL MALPRACTICE IN NEW YORK: 3 WAYS TO IMPROVE YOUR CHANCES OF BEING INVITED INTO AN ATTORNEY'S OFFICE

lawmed10@yahoo.com (blog Author)16950 — Sat, 15 Aug 2009 08:00:00 EST

1. Be clear and concise when telling your lawyer what your legal problem is.

There is nothing worse than having a potential client call and literally ramble endlessly without a defined purpose. I understand that when you make that big leap and call an attorney, you want to explain every detail that caused you to call an attorney.

However, the purpose of talking to you on the phone is only to get a brief summary. I personally use the call as a screening tool to determine if your case is one that I’d be interested in looking into. I also use our call to find out what you think was done wrong that caused you permanent harm.

2. Be able to tell your lawyer what permanent injuries or disability you or your family member suffered as a result of wrongdoing.

Any attorney who handles medical malpractice cases in New York needs to know what injury or permanent disability you suffered. If you have no injury, or your injury is minor then most experienced attorneys in New York (myself included) would not accept such a case.

3. Have specific documents in one central place.

It helps greatly if you can locate and put into a folder documents such as health insurance explanation of benefits; marriage certificate; income tax records (if you are claiming lost earnings or lost future earnings); medicare or medicaid card, health insurance card; any medical records you may have; as well as a list of all doctors you have seen over the last 3 years.

CONCLUSION:

By having this information when you call an attorney’s office you stand a much better chance of not only impressing the attorney with your knowledge, but being invited to meet with the attorney in person to evaluate your case.

5 THINGS A NY MEDICAL MALPRACTICE ATTORNEY LOOKS FOR WHEN YOU COME INTO THEIR OFFICE

lawmed10@yahoo.com (blog Author)16921 — Fri, 14 Aug 2009 08:00:00 EST

Have you ever wondered how some cases are eagerly accepted by an attorney and others are not? What are the top five things an experienced attorney looks for when deciding whether to take a case?

DOES YOUR STORY SOUND BELIEVABLE?

If your story is not believable, an attorney will likely reject your case without ever doing an investigation. Why not? The moment you walk in the door, an attorney looks at you as if you are walking into court and taking the witness stand. He will look at your story from the viewpoint of a jury sitting and listening to your case to see if they will find it believable and is credible. If your story lacks credibility, no attorney will want to spend thousands and thousands of dollars and hundreds of hours prosecuting your case, knowing at the outset that the chance of you winning your case is minimal.

DOES WHAT YOU SAY MAKE SENSE?

This is commonly referred to as the ‘smell test’. What’s that? If it doesn’t smell right, then a jury will find it hard to believe your story. Again, if the attorney thinks a jury will not accept your story, then he likely will not take your case.

WHAT DO YOU THINK WAS DONE WRONG?

Every attorney who evaluates a medical malpractice case in New York wants to know what you think was done wrong. The injured victim or their family is usually a very good source of information when trying to find out what went wrong.

WHAT HARM DID THE WRONGDOING CAUSE?

The reason we need to know what injuries you suffered is because we are required to link the injuries with the wrongdoing in order to proceed forward with a valid case. This is known legally as ‘causation’. If there is a missing link, then it becomes impossible to prove a valid case. Keep in mind that in any evaluation of a medical malpractice case, the attorney MUST get a medical expert to review your records and confirm each element of your case.

What are those elements? Exactly what I talked about in paragraph 3 and 4. I must prove (1) wrongdoing; (2) that the wrongdoing caused harm; and (3) that the harm is significant and permanent.

DO I GET ALONG WITH YOU?

Believe it or not, your case will take approximately 2-3 years from start to finish. The attorney will need to determine whether you are a good fit and whether you will have a good relationship that you can both live with for the duration.

If you do not get along with each other, it’s probably not a good idea to stay together at the outset. The attorney-client relationship is an important one. If the fit is a good one, great. If it’s not, just as in a marriage, don’t get started.

CONCLUSION:

These five tips will help you understand what an attorney looks for when you walk in the door and they start asking you questions.

Driver in Wrong-Way Crash on Taconic highway That Killed 8 Was Drunk

lawmed10@yahoo.com (blog Author)16390 — Tue, 04 Aug 2009 08:00:00 EST

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.

Looking for an attorney? 5 tips to help you decide which attorney is right for you.

lawmed10@yahoo.com (blog Author)16265 — Mon, 03 Aug 2009 08:00:00 EST

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.

Cover-up at New York's municipal hospitals-NY Daily News Exposes Hospital Errors and Fraud

lawmed10@yahoo.com (blog Author)15878 — Mon, 27 Jul 2009 08:00:00 EST

New York Daily News blows the lid on cover-ups at New York City municipal hospitals including Bellevue hospital, Coney Island hospital, Elmhurst hospital, Harlem hospital, Jacobi hospital, Kings County hospital, Lincoln hospital, Metropolitan hospital, North Central Bronx hospital, Queens General hospital and Woodhull hospital.

"City-run hospitals faked records and covered up dozens of botched operations, deadly accidents, malpractice and other medical screwups, a Daily News investigation has found.

The coverups hid a trail of human suffering among patients who were maimed and relatives who were never told the truth about how their loved ones died or were injured unnecessarily."

Read the full article here.

How Much Does It Cost To Hire a NY Medical Malpractice or Accident Attorney?

lawmed10@yahoo.com (blog Author)15853 — Sun, 26 Jul 2009 08:00:00 EST

All attorneys who handle cases involving accident or medical malpractice in New York handle them on "Contingency." What does this mean?

It means that the lawyer receives a fee only if he is successful in getting you compensation for your injuries. His fee is 'contingent' upon you getting money. If the lawyer is unsuccessful and you receive nothing, the lawyer also receives no fee.

FOR AN ACCIDENT CASE IN NEW YORK:

The attorney's fee is 1/3 of the amount you recover, after the attorney's expenses have been paid back to his law firm. What this means is that the lawyer pays all litigation expenses and really provides you with an interest-free loan during the time your case is in litigation. At the end of the case, if you are successful, the lawyer's gets repaid for his expenses.

FOR A MEDICAL MALPRACTICE CASE IN NEW YORK:

The attorney's fee is LESS THAN an accident case. This has been true since 1985. The fee is based on a sliding scale, which means that the more you recover, the more you get to keep.

$1-$250,000, the attorney's fee is only 30%.
$250,001-$500,000, the attorney's fee is only 25% for that segment.
As the amount increases, the attorney's fee decreases, until you reach $1.25 million. Anything above $1.25 million, the attorney's fee is only 10% for that segment.

Remember, at the end of the case, if you are successful, the lawyer's gets repaid for his expenses. From the remaining amount, his fee is calculated, and then you receive the remaining amount.

CONCLUSION:
The purpose of having a contingency fee is so that people who could not afford an attorney's hourly rate would be able to hire an experienced lawyer without having to worry whether they could pay.

You win your case; the attorney gets paid. You lose your case; your lawyer gets nothing. That's a significant incentive for your lawyer to work hard to get you the most compensation you are legally entitled to.

DREAMS-An Inspiration

lawmed10@yahoo.com (blog Author)15671 — Wed, 22 Jul 2009 08:00:00 EST

Your dreams are gifts that set you in motion.

On the tides of time where life is an ocean.

Your sails are filled with the winds of desire, to surge through the wake of muck and mire.

And when you awaken with your goal at hand, you see your true destination was the voyage, not the land!

(Comment: I read this many years ago, and found it to be very inspiring. I would love to credit the author, but do not know who it is.)

Charleston attorney helps win record medical malpractice case in Tennessee

blog@www.oginski-law.com (news Author)9480 — Sat, 18 Jul 2009 08:00:00 EST

By Andrew Clevenger

Staff writer

CHARLESTON, W.Va. -- Earlier this month, thanks in large part to the efforts ofCharleston attorney Jim Lees, a Tennessee jury awarded a young couple almost $24 million in a medical malpractice case.

The verdict, which found a Memphis OB-GYN negligent for failing to order follow-up tests after a patient found a lump in her breast, is believed to be the highest medical malpractice award in that state's history.

But Lees thinks the jurors were thinking about more than money when they settled on $11.85 million for Courtney Hill and $11.75 million for her husband, Robert.

CLICK HERE TO READ THE FULL ARTICLE.

Beware of the "Medical Expert" consultant

lawmed10@yahoo.com (blog Author)14959 — Tue, 07 Jul 2009 08:00:00 EST

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."

Great Neck Firefighter Saves Cardiac Arrest Victim in Fort Myers, Florida

lawmed10@yahoo.com (blog Author)14871 — Mon, 06 Jul 2009 08:00:00 EST

July 4, 2009

At 7 PM on July 4, in Fort Myers airport, Florida my family and I were walking toward the boarding gate of our JetBlue flight 138 heading back home to New York. As we approached the boarding gate, we saw a gate attendant kneeling on the floor next to an elderly man who was clearly unresponsive. The gate attendant had his finger on the man’s carotid artery, checking for a pulse. My son immediately dropped his laptop ran over to the man on the floor, announced that he was a first responder and a firefighter and also checked for a pulse. Having found no pulse and that he was not breathing, my son directed that they immediately begin CPR and advised the gate attendant to begin chest compressions.

A few moments later, a Port Authority policeman arrived and my son requested a mask to ventilate his lungs.

Together, the gate attendant and my son worked as a team to perform CPR on this cardiac arrest victim. If you’ve ever performed CPR it is physically taxing. Your adrenaline is pumping and you’re focused on reviving the patient.

Chest compressions and ventilation continued for minutes until the pilot of our plane and another Port Authority police officer arrived with an automatic external defibrillator. Two large electrodes strips were placed on this man’s body and the defibrilator was activated.

If you’ve never seen an automatic defibrillator in action, it’s fascinating to watch and to hear. It announces that it is evaluating the patient’s heart rate and once it has finished assessing heart rate, it immediately recommends action and whether or not to shock the patient in an attempt to restore the normal heart rhythm.

After the first assessment was made by the automatic defibrilator, it recommended that the patient be shocked immediately. Once you press the button to administer the shock, the automatic defibrilator advises that everyone should stand back away from the patient. If you’ve ever seen someone shocked using defibrillator paddles on TV, it is the same as watching it in real life. A tremendous jolt of electricity is sent throughout the patient’s body to try and restore the heart rhythm or to get the heart rhythm reverted back to normal.

In this case, after the shock had been administered, my son and the gate attendant continued CPR until the automatic defibrilator advised to momentarily stop so it could check for a heart rate. At this point, there was still no heart rate or respirations. The defibrillator again recommended shocking the patient, and after the patient was shocked for the second time, the patient regained a pulse and respirations. My son together with an EMS attendant and the gate attendant turned the patient onto his side in order to prevent him from inhaling any fluids into his lungs (known as aspiration), now that he was breathing again.

By this time, two other emergency medical crews arrived and took over where my son had left off.

My son is 17 years old and is a volunteer firefighter with the Vigilant Fire Department here in Great Neck. Watching my son take control of this medical emergency and selflessly run to help this man in distress gave me the greatest feeling I could ever have as a parent. All of his training with the fire department effortlessly kicked into gear and I’m proud to say that my son helped save a life on July 4, 2009, Independence Day.

On the plane ride home to New York, my son told me this was his 15th time performing CPR. Looking at him, I could see the sparkle in his eye knowing that he did something good for someone else. Even though we were unaware of this man’s fate, I couldn’t help but think what a great person my son turned out to be.

An Open Letter to President Obama on Medical Malpractice in New York

blog@www.oginski-law.com (news Author)9019 — Tue, 16 Jun 2009 08:00:00 EST

An Open Letter to President Obama From Gerry Oginski, Esq.
A New York Medical Malpractice Trial Lawyer
June 15, 2009

Dear Mr. President,

The New York Times reported today (Obama Open to Reining in Medical Suits, June 15, 2009) that you were considering reining in medical malpractice lawsuits. Although you have expressed your opinion that you would not consider placing a cap on jury awards, I’d like you to read this letter before you give further thought to this potentially disastrous policy change.

A few years ago I had the privilege of representing a young man, aged 34, who worked as a mortgage broker. One day here in New York he suffered chest pain and went to a local hospital for evaluation. The physicians admitted him to the hospital for a few days to do a cardiac workup. Blood was drawn, a stress test was performed, and a physical examination was done. The patient was given a clean bill of health and told to follow up with a cardiologist after being discharged. Over the next three months this young and energetic young man continued to experience significant chest pain. On each visit to the cardiologist, the doctor performed a physical examination and shrugged off the patient’s complaints of pain as being “stress related.” Shortly after the third visit to the cardiologist, this young man experienced severe crushing pain which radiated down his arm.

Jurors in NY Should Be Allowed to Twitter

lawmed10@yahoo.com (blog Author)13644 — Sat, 13 Jun 2009 08:00:00 EST

Find out why Gerry Oginski, an experienced New York medical malpractice and personal injury trial attorney believes that jurors in NY should be allowed to twitter during a trial. Currently, jurors are not allowed to talk to each other about the case until after they have received legal instructions from the judge.

Likewise, attorneys and the litigants are also prohibited from talking to the jurors. Twitter allows us to see what a juror is thinking about the testimony. Watch the video to learn more.

For answers to your legal questions, call Gerry personally at 516-487-8207 or by email at lawmed10@yahoo.com. He welcomes your call.

New York Medical Malpractice Insurer Has One Foot in Bankruptcy The Other on a Banana Peel

lawmed10@yahoo.com (blog Author)13503 — Wed, 10 Jun 2009 08:00:00 EST

This comment is brought to you straight from White Coat's Callroom, a blog from Inside the Emergency Department.

"Physician’s Reciprocal Insurers, a med mal carrier that insures 25% of New York’s physicians has one foot in bankruptcy court and the other foot on a banana peel. State mandated insurance premium rate freezes appear to be partly to blame. How could this happen if insurers are raking in the money and are really responsible for the medical malpractice crisis."

He raises an excellent question. Why aren't more physicians asking the same question?

New York Injury Times- May 09' Newsletter #2 Now Available

lawmed10@yahoo.com (blog Author)12438 — Sun, 24 May 2009 08:00:00 EST

Learn about the 5 key questions I need to know in a failure to diagnose cancer case. Read a list of defense attorneys whom I consider to be worthy adversaries in the State of New York. Learn 6 common definitions of legal terms that you may not know.

How Does a New York Medical Malpractice Lawyer Prove Your Case?

lawmed10@yahoo.com (blog Author)11920 — Wed, 13 May 2009 08:00:00 EST

A New York medical malpractice attorney must be able to prove three things: (1) Liability, (2) Causation and (3) Damages OK, but what does that really mean? (1) Liability means that we must be able to prove "with a reasonable degree of medical probability" that the doctor or hospital who treated you "departed from good and accepted medical care." "What does that mean?" It means that we must prove that we are more likely right than wrong that the doctors who cared for you did not treat you properly and in accordance with the standard of care that other physicians with the same specialty would use to treat your problem. In New York, we are required to have a medical expert confirm that the treatment was inappropriate and explain how and why. (2) Causation means that our medical expert must be able to say, again, that what he is saying is more likely right than wrong, and that the medical wrongdoing or carelessness was a cause of your injuries. "In human language please..." Our expert must be able to connect the dots to this puzzle. He must be able to show that the medical wrongdoing was a cause of your injury. If he is unable to show that the wrongdoing caused your injury, you will be unable to prove your case. "What if there are multiple causes of my injury? Does he have to show that the wrongdoing caused all of them in order for me to prove my case?" No. We are not required to show that the doctor's carelessness was THE cause of your injury, only that is was A cause of your injury. The distinction is very important. (3) Damages mean injuries. "Well, why didn't you say that to begin with?" In law, specific words have certain meanings. Our expert must prove not only that there was medical wrongdoing and that the wrongdoing caused injury, but we must also show that your injury is significant and/or permanent. We use your treating doctors to explain to a jury what injuries you suffered. If your treating doctors are unavailable, we use medical experts to describe to the jury the extent of your disability and permanent problems. CONCLUSION: Once we have proven these three requirements, we will be able to have a jury decide whether we have successfully proven our case, and if so, how much money to award to you as appropriate compensation.

How To Find a Medical Malpractice Lawyer in New York

lawmed10@yahoo.com (blog Author)11877 — Tue, 12 May 2009 08:00:00 EST

You think you're the victim of wrongdoing by a doctor or hospital.

You don't know any lawyers personally.

You don't have any friends who know a good medical malpractice lawyer.

What can you do to find a good medical malpractice lawyer?

Here are your options:
1. Look in the yellow pages
2. Watch daytime TV and wait for the loudest TV commercial screaming "HAVE YOU BEEN INJURED? IF SO, CALL ME."
3. Remember a catchy phone number from a billboard you pass each day on the way to work
4. Look in the classified ads
5. Go online and do a Google search

Let's examine each to see what information you can learn about whether a particular lawyer is right for you.

1. Yellow pages.

Look carefully at each ad to see if you can distinguish one lawyer from another. I've been in practice over 20 years and can't tell one lawyer from another. Yes, one has a full page ad; one has color; one has the total number of years all the lawyers have been in practice; another says they're open 24/7; another says they offer free parking; another says they handle 10 different types of law.

The problem with the yellow pages is that none of the ads give you any information to explain how these lawyers can help solve your legal problem.

2. TV commercials are usually 30 seconds long. They show pictures of crashed cars; sirens in the background; people in an ambulance. So what? How does that explain how they can help you? How do you know if that lawyer is right for you? I can't distinguish one lawyer from another after watching a 30 second TV commercial. How do you know if they've handled cases just like yours? What type of law firm is it- a large firm, a small firm? Who handles your case on a day-to-day basis?

The problem with TV ads is that they don't explain anything. They just shout at you.

3. Billboards: These are even worse than the yellow pages or TV ads. Why? They give no useful information. "Call Me, at 1-800-I SUE FOR YOU" or some other cheesy catch phrase. How can you tell anything about a law firm from a billboard ad? Who are these people? How many cases do they handle? How many lawyers are in their firm? Who handles my case on a day to day basis? Do they give free information in a book or pamphlet?

The problem with billboards is that unless you pass it each day, you're unlikely to remember the number. Even if you do, ask yourself what information that billboard tells you. If you simply switch someone else's name and phone number, can you tell the difference between the two attorneys? If you can't, how can you tell if that lawyer is right for you?

4. Classifieds: Again, like the billboards, these offer zero information. Who searches in the classifieds? Everyone looking for a bargain, or a used car. What information does the classified ad tell you? Nothing, except that "I'm a lawyer and here's my number."

The problem with classified ads is they don't give an injured victim any useful information that will allow them to make an intelligent decision about who to call, and who to hire as their lawyer.

5. Go online: This is the best way to search for an attorney if you don't know one. Do a google search for a medical malpractice lawyer in your State. Go onto YouTube to search for attorney videos. Look at the lawyer's website. Look critically to see what information they offer. Does the lawyer offer free reports on their website? Do they explain how lawsuits work? Do they have free informational books about medical malpractice? Do they have free video tips that help explain the legal process. Do they have more than 10 FAQ's that every lawyer seems to have? If the lawyer has video on their website, look carefully to see what information the attorney provides. Are they simply telling you how great they are, or are they explaining different types of cases they handle? Does the lawyer help you understand what an experienced lawyer looks for when evaluating a case?

CONCLUSION: Only by looking critically at the information an attorney provides online can you begin to make an intelligent decision about which attorney is right for you.

Enclosed Is Your Check For $1 Million Dollars

lawmed10@yahoo.com (blog Author)11754 — Fri, 08 May 2009 08:00:00 EST

Here's a letter I received:

"Dear Mr. Oginski,

Enclosed is your check for $1,000,000. This represents the full and final settlement of this action."

Looking at this remarkable check, I couldn't help but think how useful this will be for my client who suffered permanent and irreversible injury due to medical wrongdoing. So often we read about injured victims who abuse the legal process for their own financial gain, as well as lawyers looking to make a quick buck at the expense of their clients. However, little is written about the seriously injured victim who goes quietly into the night after settling their case with a "no publicity" clause.

In New York, many insurance companies demand that the attorney and injured victim agree not to publicize the terms of the settlement. The injured victim is often left without much choice should they wish to settle their case for the number being offered by the insurance company. Obviously, if the settlement offer is unacceptable and the case goes to a verdict, the winner is free to publicize that verdict in any way they choose.

There are some people who think that a $1 million settlement is a windfall. There are others who look at it as a winning lottery ticket. Yet there are similarly injured victims who look at it as insufficient compensation for the horrible and irreversible injuries this person suffered through no fault of their own.

So, when I saw the check addressed to my client and my law firm telling me "Here's your $1 million dollar settlement, I couldn't help but think about the injuries, the suffering, and the turmoil my client endured to justify obtaining a $1 million settlement on his case.

Emergency Room Doctor explains what she did to treat a shoulder dislocation

lawmed10@yahoo.com (blog Author)11763 — Fri, 08 May 2009 08:00:00 EST

Read actual pre-trial testimony given by an emergency room physician about how a young man who came into an emergency room with a complaint of shoulder pain, left the hospital crippled.

Learn how this doctor "reduced" the patient's shoulder dislocation and what happened after that. Miscommunication between attending phsyican, radiologist and resident led to a delay in diagnosis of a significant and permanent nerve injury.

New York Injury Times- May 09' Newsletter Just Released

lawmed10@yahoo.com (blog Author)11415 — Wed, 29 Apr 2009 08:00:00 EST

In this 12 page newsletter you'll learn about Gerry's new book, "Doctors Gone Wild." Learn how medicare and medicaid can ruin your accident lawsuit. Find out how Twitter and Facebook led to mistrials in recent lawsuits. Read about a juror in New York who was Twittering during the jury selection process. Learn why a permanent nerve injury resulted in a $1 Million Dollar settlement. Test your knowledge of medical malpractice and negligence cases in NY; Try our trivia game, and see what sits on top of the St. Maarten Courthouse.

Fellow New York Personal Injury Attorney John Hochfelder Includes My Blog in his Review

lawmed10@yahoo.com (blog Author)11370 — Tue, 28 Apr 2009 08:00:00 EST

I am thrilled to post an excellent legal blog review (known as a blawg) by fellow New York personal injury lawyer John Hochfelder. Here is an excerpt of his review where he graciously included my blog among three for New York medical malpractice attorneys he would have turned to had he needed our advice.

"It was in the 1970's that Mom got cancer. She was a free spirit, and after traditional medicine failed she sought alternative treatment (including a clinic in Germany with reggae star Bob Marley) but ultimately the scourge that is cancer took her life in 1982. Was she treated properly by all of her physicians? Did they delay the diagnosis of cancer when they could have saved her? I don't think so and I hope not. Had I thought otherwise, I could have turned for advice either to the aforementioned Eric Turkewitz or other bloggers and top medical malpractice lawyers such as Andrew Barovick at New York Medical Malpractice Law Blog or Gerry Oginski at NY Medical Malpractice Blog."

Read the rest of the blog post here.

Attention all Medical Malpractice Trial Lawyers

lawmed10@yahoo.com (blog Author)11314 — Sat, 25 Apr 2009 08:00:00 EST

For medical malpractice trial attorneys like myself who wonder what jurors are thinking and what they're doing before entering the jury room, here are exact twitter messages from one twitterer waiting to be picked as a juror in New York:

"Heading to jury duty - limited blogging." 8:00 AM Apr 23rd from web

"Can you be exempt from jury duty by twittering court proceedings? Stark editor Matt, explores this option today." 11:21 AM Apr 23rd from web

"In the midst of a grueling selection process for jury duty. Live twittering capabilities limited. Medical malpractice case. Juicy. Hopin ..." 12:12 PM Apr 23rd from web

"One lawyer put me directly asleep. The other lawyer - seasoned, charismatic - I'm voting for his client. Thanks for the support folks." 12:15 PM Apr 23rd from web

"Here come the big boys with the judge. Signing off." 12:20 PM Apr 23rd from web

"Back from lunch, escaped being picked for the medical malpractice. Feeling I won't be so lucky again. Hearing rumors of Lykke Li on idol? wtf" 3:34 PM Apr 23rd from web

"@nisianista yeah so illegal. Now I have medical malpractice lawyers following my twitter. Not kidding." 5:33 PM Apr 23rd from web in reply to nisianista

"Still jurying... nothing funny happening today." about 10 hours ago from web

These tweets come from @StarkNY.

These tweets are both eye-opening and somewhat disturbing. Why? I finally get to look into the thought process of someone waiting to be picked as a juror in a medical malpractice case.

Typically, lawyers have no way to look into the minds of jurors, other than to ask them specific questions about their feelings, biases, and prejudices.

These tweets are somewhat disturbing though because in the last few months there have been a number of jury trials, both criminal and civil whose verdicts may be in jeopardy because of jurors who were twittering about the trial or doing their own research online. Those jurors totally disregarded the court's instructions not to do their own research and not to discuss the case with anyone outside of court.

When someone is chosen as a juror, they are admonished by the court not to discuss the case with their friends or family. They are repeatedly told not to do their own independent research. Despite these warnings, there are still some renegade jurors who disregard the instructions of the court and put the civil justice system and the case they are deciding, at risk.

Now this twitterer @StarkNY does not appear to be doing anything wrong, as long as he does not twitter about a case in which he is a selected juror.

Jurors who choose to do their own online research, or twitter their thoughts during a trial risk exposing biases, prejudices, and leanings before hearing all the evidence and importantly, before hearing the judge's legal instructions that applies specifically to their case.

If I were the plaintiffs attorney on a case, and learned that @StarkNY were twittering, I could theoretically follow him on Twitter solely to learn his thoughts about the testimony and evidence during the trial. This would clearly give me an unfair advantage over my adversary as I would have an inside view into at least one juror's thinking as the trial progressed.

Interestingly, I recently posted two videos addressing this exact issue: "Does an attorney who learns that a juror is twittering during trial have an ethical obligation to inform his adversary and the court of this fact?" To watch the videos click on the titles, <a href="http://nymedicalmalpracticevideoblog.com/?p=305">Twitter & Facebook Jury Instructions in NY</a>, <a href="http://nymedicalmalpracticevideoblog.com/?p=307">Twitter Communication with jurors in New York</a>."

In my opinion, an attorney has an ethical obligation to disclose this information immediately to both the judge and to the defense attorney.

Think about the possibilities:
Who needs a news reporter in the courtroom when jurors can simply twitter their thoughts as the trial progresses? Both sides and the judge could see in real time what the jury is thinking as each piece of evidence unfolds and each witness is presented. This way the playing field is leveled, and all attorneys could tailor their case based upon what the jurors are saying in their twitter messages. If this were to occur, this would be truly revolutionary in the civil justice system here in the state of New York.

In Case of Death-NY Trial Lawyer Gerry Oginski Publishes New Book

lawmed10@yahoo.com (blog Author)11163 — Tue, 21 Apr 2009 08:00:00 EST

In this new book you’ll learn learn how a wrongful death lawsuit in New York works. You'll learn how much time you have to file a lawsuit for wrongful death, how much time you have to file a claim against the New York City Health and Hospitals Corporation and the City of New York. Learn how to choose a wrongful death lawyer in NY. Find out whether you need an autopsy to determine the cause of death. Learn 9 Facts Your New York Wrongful Death Attorney May Not Tell You, and much much more. I guarantee that after reading this book, you will learn things you did not know before. I promise that this book will educate and inform you. That’s my guarantee.

Enjoy the book and if you have questions, please pick up the phone and call me at 516-487-8207. I welcome your call. Or you can send me your questions by email to lawmed10@yahoo.com. I can answer your legal questions, and I promise to give you a straightforward and personal response.

Doctors Gone Wild

lawmed10@yahoo.com (blog Author)11118 — Mon, 20 Apr 2009 08:00:00 EST

Gerry's new book, DOCTORS GONE WILD, is an insider's view of medical malpractice cases here in New York. Reading this book you’ll learn 10 Reasons Why You Shouldn't Sue Your Doctor. You'll learn about a Urology Disaster, a Dental Implant Nightmare, a botched breast reduction surgery. Find out whether a doctor who perforates your colon during colonoscopy is responsible for your injuries. Learn about a failure to diagnose ectopic pregnancy, failure to diagnose lung cancer, emergency room mistakes and much much more. If you live in New York, and want to learn about medical malpractice cases in New York, you can download the book immediately, for FREE! Just click here and enter your information.

Bicycle Accidents In New York City-An experienced NY Negligence Attorney Explains

blog@www.oginski-law.com (news Author)8193 — Sat, 18 Apr 2009 08:00:00 EST

Ever been doored? I have.

EVER BEEN CUT OFF BY A CARELESS MOTORIST? I have.

Have you ever been thrown off your bike after a car side-swiped you? Did you wind up in the emergency room? Broken bones? Need surgery? Did you have head trauma? Was your bike totally destroyed? Do you know someone who went over their handlebars and walked away without breaking a bone in their body?

Evaluating liability- Who’s responsible?

Where were you riding (on the street, on the sidewalk, with traffic, against traffic)?

What was the weather like?

What time of day did your accident happen?

What safety devices did you have on (helmet, reflective clothing, blinking butt lights, headlights)?

Describe the road or intersection where the accident happened (one way, two-way, how many lanes of travel in each direction, was there parking on both sides, was it residential or a commercial area)?

Was there anything blocking your view?

Were there any double-parked cars/buses/ trucks?

How fast were you going at the time of the impact?

How fast was the other driver going at the time of impact?

How did the accident happen?

“What happens if I was riding against traffic? Does that affect my liability?” Yes it does. As a bicycle rider you are still obligated to follow the ‘rules of the road’ and to ride responsibly. You cannot disregard red lights with impunity. You cannot blow through a stop sign knowing there’s no oncoming cars or pedestrians. You are required to follow the same traffic signs as cars. If you are hit while riding against traffic, you will be partially responsible for causing your accident.

Remember, since New York is a “No-Fault” state, that means that the drivers’ insurance company will still be obligated to pay for your medical bills. If you own a car and have car insurance, the two insurance companies will hook up and determine, behind the scenes, who is actually responsible for your accident. Depending on the analysis, one insurance company will reimburse the other for the medical expenses they had to pay out on your behalf.

Evaluating damages- What Injuries Did You Suffer as a Result of This Accident?

Read the article to learn more...

A Lawsuit For Every Calamity-NY Trial Lawyer Explains

lawmed10@yahoo.com (blog Author)11026 — Thu, 16 Apr 2009 08:00:00 EST

You can't avoid reading about different lawsuits every day. Open any newspaper across the country and you'll see many stories about people suing cities, hospitals, negligent drivers, incompetent police, employers for sexual harassment, the church, manufacturers and the list goes on and on.

Break a finger opening a jelly jar; sue the manufacturer for a defective product.
A lawn mower blade slips and slices off your leg. Sue the manufacturer.
A doctor perforates your colon and you need emergency surgery; sue the doctor and hospital.
A radiologist misreads your chest x-ray and fails to diagnose your lung cancer; start the lawsuit.
You have a fender bender in a parking lot and bring a lawsuit for soft tissue injuries; start a case and watch it get thrown out of court.

Is every injury worthy of money compensation?
The answer is no.

Our system of justice requires that a wrongdoer who causes injury pay money compensation to the injured victim. The wrongdoer is supposed to make their victim "whole" again. This is impossible when the injured victim suffered significant physical injury.

When a wrongdoer causes physical harm, he incurs a debt that must be repaid. The only way our justice system in New York allows that debt to be repaid is with money. Money to pay the victims' medical bills in the past; the future, money to pay for lost earnings and for future lost earnings, and money to pay for the victims' pain and the suffering he caused.

Gerry's Videos Watched over 76,000 times

blog@www.oginski-law.com (news Author)8151 — Tue, 14 Apr 2009 08:00:00 EST

Gerry's videos on YouTube have been watched over 76,000 times! Amazingly, this doesn't include all the other video sharing sites where my videos are posted- only YouTube.

Practically every caller who comes to me from my website thanks me for creating educational and informative videos to help explain how lawsuits in New York work. I'm glad I can provide useful information that allows a prospective client to obtain useful information before they ever pick up the phone to call.

Attorney Blooper #4 just posted

lawmed10@yahoo.com (blog Author)10891 — Sun, 12 Apr 2009 08:00:00 EST

Watch my blooper, as I try to get the words out of my mouth, but just can't. Then, to make matters worse, I can't get the position of the camera straight. It's a quick 30 second blooper.

Medicare Can Ruin Your Lawsuit- Find Out How

lawmed10@yahoo.com (blog Author)10687 — Mon, 06 Apr 2009 08:00:00 EST

Did you know that if Medicare pays for medical care that you received because of someone else's wrongdoing, and you then bring a lawsuit seeking compensation for your injuries, Medicare has a legal obligation to make you repay them?

Let me repeat that and explain. Let's say you're in an accident caused when a driver crossed over the double yellow line and hit you. You're in the hospital for weeks and Medicare pays your bills. If you now sue the driver of the car that caused your accident, Medicare will come to you and your lawyer and say "Pay Up."

The government wants their money back if you get money from the person who caused your injuries. Depending on how much money you get and how much money Medicare paid, we can, in some cases negotiate with Medicare to reduce the amount that they must be repaid.

To learn more, click here to watch Gerry's informative video.

Is It Ethical For a Lawyer To Send a Letter to a Car Accident Victim?

lawmed10@yahoo.com (blog Author)10606 — Fri, 03 Apr 2009 08:00:00 EST

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.

Ambulance Chasing

lawmed10@yahoo.com (blog Author)10163 — Sat, 21 Mar 2009 08:00:00 EST

How many times have we heard the term ambulance chasing and thought of lawyers who were unscrupulous and had no ethics?

Just yesterday I critiqued an attorney video where a lawyer was seeking accident victims while shooting her video in an operating room. What made the video even more unusual is that there appeared to be a real patient on the operating room table, a physician operating, and a nurse attending to the patient. Unlike a video that depicts a hospital in the background, this medical malpractice attorney was clearly and visibly located within the operating room itself. Whether the people in the operating room were actors or not I could not tell.

However, this brief video did nothing to educate an injured victim who was searching for an attorney online. It is this type of advertising that gave rise to the term of ambulance chaser for negligence and medical malpractice attorneys years ago. Typically, lawyers had a very limited means in which to educate consumers about which lawyer was the right one for them. Traditional forms of advertising consisted of television advertisements lasting no more than 30 seconds, and a Yellow Pages ad that contained very little useful information.

Comedians routinely spoofed lawyer advertisements and movies portrayed negligence lawyers hanging out in funeral homes, (The Verdict with Paul Newman), as being the only way they could find cases. Other lawyers were shown hanging out in emergency rooms seeking to sign up every available accident victim.

Although every spoof has a hint of truth to it, it is highly unusual for attorneys nowadays to be found lurking in hospital emergency rooms or chasing ambulances to track down injured victims.

The other day while in court I ran into a defense attorney I worked with on a number of cases. He was on my mailing list to receive my monthly newsletter. I hadn't seen him in a few years, but the first thing he said to me when we saw each other was "I still get your newsletter." The comment he made after that prompted me to write this blog post. He said, "Your newsletter appears to be a bit of ambulance chasing, doesn't it?" I asked him what he meant by that.

He said, "I recognize that attorneys have to have their shtick as a way of getting potential clients." I replied that my newsletter was not only informative, but helped educate potential clients, friends, colleagues and injured victims about how the legal process works. Importantly, I told him that there are people who have not received my newsletter on time who call me up wanting to know why their newsletters are late because they enjoy it so much.

Contained within my informative newsletter I have a trivia game, interesting news items, one or two stories about law, and in many cases an ongoing story called "Gerry's Never Ending (fictional) Story." When I returned back to my office later that day, I removed this defense attorney from my mailing list recognizing that he truly didn't understand the purpose of the newsletter. Clearly, I never want to send my newsletter to someone who doesn't want it. I will tell you that in all the years I've publish my newsletter, this is only the second person I've removed my mailing list.

Twitter, Facebook & Internet Lead to Mistrials

blog@www.oginski-law.com (news Author)7784 — Wed, 18 Mar 2009 08:00:00 EST

Well it finally happened. A lengthy federal criminal trial in Florida resulted in a mistrial after a juror admitted to doing Internet research, despite the judge's instructions not to.

Eight weeks worth of trial were wasted because of one juror's failure to follow the court's instructions. There's a shocker.

John Schwartz, a writer for the New York Times, also noted that an Arkansas court is being asked to overturn a $12.6 million judgment claiming that a juror used twitter to send updates during the civil trial.

Also, in Pennsylvania, defense lawyers in a federal corruption trial requested a mistrial because a juror posted updates in the case both on Twitter and Facebook.

In today's day and age of social networking sites and the ability of people to communicate via iPhone, Blackberry, and text messages, it has never been easier for jurors to do their own independent research about the issues involved in a trial. Not only that, but today's communication devices allow anyone to immediately do a Google search on anyone involved in the trial including the lawyers and the judge.

Pretrial instructions by the trial judge in New York routinely advise potential jurors that they are not do any independent research outside of the court. The reason is simple: we don't want jurors basing their decisions on any outside influences that have not been subject to the scrutiny of the court and the attorneys.

When jurors obtain information outside of the courtroom, the attorneys and the judge no longer have an ability to know what information the juror has obtained and how it could possibly influence them when reaching a decision.

In civil cases in New York, where jurors are never sequestered, no one really ever knows whether jurors talk to friends or family members or do their own research. It's only when someone has observed them investigating on their own can this breach of a juror's duty come to light.

Just last week I posted an informative and educational video about this exact topic. The title? "Twitter and Facebook jury instructions in New York." in the video I posed the question: "Should judges be required to give jurors warnings that they are not to use twitter, Facebook, my space and other social networking sites to blog about the case?" Watch the video to find out the answer.

Interestingly, in the cases discussed in the New York Times article, jurors were warned not to do online research. Despite these explicit warnings jurors disregarded them to investigate on their own.

Ah, what's a Twitterer supposed to do while serving jury duty?

Are You The Perfect Client?

lawmed10@yahoo.com (blog Author)9944 — Sat, 14 Mar 2009 08:00:00 EST

Every person who calls my office thinks that they are the perfect client.
Every person truly believes they have a valid case.
Every caller believes their injuries are worth more than the national treasury.

From an attorney's perspective, just who is the perfect client?

A perfect client is one who is willing to listen.
A perfect client is one who is willing to learn.
A perfect client is one who is willing to go on a stressful journey with someone they trust as their legal guide.
A perfect client it one who communicates with me.
A perfect client is one who does not demand, yell, scream or give ultimatums.
A perfect client is one who, after listening to my lawyerly advice, makes an intelligent decision about how to proceed, regardless of whether they agree with my advice or not.
A perfect client is one who responds to my letters, emails and phone calls.
A perfect client is one who is helpful and assists me when I prosecute their case.

A perfect client respects me, my time and my secretary.

Does every client have to be the perfect client? No. But having a perfect client makes the attorney-client relationship that much more enjoyable.

Should Your Lawyer Pay $500 to Impress You?

lawmed10@yahoo.com (blog Author)9921 — Fri, 13 Mar 2009 08:00:00 EST

Just today I received mail from a company called Elite Lawyers of America asking me to join their organization to promote my success stories. How did they propose to do that? By joining an organization that supposedly restricts its membership to attorneys who have had awards, settlements or verdicts of at least two million dollars. Now I have no problem with an attorney who wants to tell their prospective clients about their accomplishments. Keep reading to find out the catch.

"Acceptance in this organization represents an incredible accomplishment by the civil trial attorney." You may ask, "What do I get for joining this Elite group?"

Well my friends, I get a lucite object to put on my desk which is etched with the name of the (previously never heard of) organization and a statement that says "Membership limited to civil trial lawyers who have obtained a verdict or settlement of at least 2 Million dollars." Then there is a place for your name, and the accompanying photo says "Your name here." How nice.

And the cost to have this company pay a few dollars to put my name on a generic lucite obelisk and for a fancy certificate I can impress you with? Only $500. Payment of this fee guarantees lifetime membership. Ooh, I feel so lucky.

Guess what? I personally don't need to spend $500 to show my clients that I have obtained settlements in excess of $2 million dollars. All they need to do is read my website and realize some of my accomplishments include settling a failure to diagnose heart attack case for $6 million dollars. Why do I tell you about this? The next time you walk into an attorney's office and are impressed with their certificates and fancy objects on their desk, look closely at it and ask them how they got it. The answers may surprise you.

You've Got to Read This- Jury Duty Causes Disbarment of Calif. Lawyer

lawmed10@yahoo.com (blog Author)9851 — Wed, 11 Mar 2009 08:00:00 EST

The Recorder

Mike McKee

March 11, 2009

Changing his vote during jury duty so he could get back to his busy law practice has come at a high price for San Francisco solo Francis Fahy and possibly placed him into a category unique unto itself.

A California State Bar Court review panel on Friday upheld disbarment (.pdf) for the 19-year lawyer after finding he violated his oath as a juror and then compounded the problem by lying to the trial court judge when confronted.

Read the entire article here.

Doctors Want Patients To Waive Their Right to Comment Online!

lawmed10@yahoo.com (blog Author)9592 — Wed, 04 Mar 2009 08:00:00 EST

I thought I'd heard everything by now. I was wrong.

A North Carolina neurosurgeon has created a company that provides doctors with a written waiver (for a fee) that basically says, I agree not to post negative reviews about my doctor online.

Wow. The premise is that patients have the ability to comment anonymously online about a doctor. This neurosurgeon, Dr. Jeffrey Segal hopes this will nip the negative criticism's in the bud.

Here's how it works. When you walk into a doctor's office, you are required to fill out lots of forms. One form that this doctor advocates having patients sign is a "Waiver." This means that the patient gives up their right to post opinions about the doctor online. The article does not mention what has happened if a patient refuses to sign such a waiver, or whether the patient will still be seen and treated.

This waiver appears to be nothing more than an attempt by doctors to limit the negative opinions that patients may truly have. Sounds like a restriction of freedom of speech to me.

The Dental Appliance that Sues the Dentist

lawmed10@yahoo.com (blog Author)9603 — Wed, 04 Mar 2009 08:00:00 EST

Have you ever seen a medical appliance that will sue the doctor that puts it on?
Well, here it is...
Take a look at the 'self-litigating' set of braces in this article. Through a goof in the ad, the text would appear as if the patient can automatically bring a lawsuit for putting these on.

I got a good laugh from this typo.

Twtitter & Facebook Comments-Can They Be Used Against You in a New York Negligence Trial?

lawmed10@yahoo.com (blog Author)9547 — Mon, 02 Mar 2009 08:00:00 EST

You've brought a lawsuit in New York for injuries you received in a car accident. You've just given a deposition (a question and answer session) under oath where you explained in detail how your injuries prevent you from playing sports and doing many of your life's daily activities.

A few weeks later you are on Facebook telling your friends how you just went skiing and had no problem speeding down the double diamond slopes on an amazing mountain. While on Twitter, you posted a few quick comments about how you spend your day working part-time for a carpenter as a helper carrying heavy items in and out of the job site.

A bright defense attorney decides to check out your Facebook profile while he prepares his report to the insurance company. He also does a Google search of you to see where your name pops up. He finds your Facebook comment about your skiing adventure as well as your Twitter posts saying that you're working part-time.

What does this mean for your lawsuit in New York?

The short version is that you're in trouble. The longer version is that you have created contradictions between the injuries that you claim to have suffered versus information that you have put out for public consumption on at least two social network sites.

Many people using Facebook and Twitter fail to recognize that by using and posting on these sites they generally have no expectation of privacy. It's not like having a private face-to-face conversation with one person. When you post to Facebook and Twitter, you are talking to the world.

Will a trial judge allow a defense attorney to cross-examine you with the statements that you made on Facebook? Will your contradictions show that you were less than truthful under oath? In my opinion, a trial judge in New York will allow this information in.

What do you think will happen to your credibility once you are portrayed to have lied? A jury will no longer believe what you have to say. I'm not even going into the possibility of fraud or an intention to lie.

So what's the take home message? Remember, that when you post comments on Facebook, Twitter and other social networking sites, the entire world can see them. Contradict yourself at your own peril.

New York Negligence Cases-Facebook & Twitter Jury Instructions?

lawmed10@yahoo.com (blog Author)9548 — Mon, 02 Mar 2009 08:00:00 EST

In negligence lawsuits in New York, attorneys must pick impartial jurors to sit in judgment and determine whether the injured victims' version of what happened is more likely right than wrong. As the trial gets underway, the trial judge typically gives the jury preliminary instructions about what they can and cannot do as jurors.

One of the most common instructions in New York is that jurors should not discuss the case with either their fellow jurors, or with anyone outside the court room. They are often told not to go to the library to research the issues in the case. With today's prevalence of social networking sites like Facebook and Twitter and Google as the king of search engines it becomes hard for a juror not to have the curiosity to find out more information about the lawyers in their case, the litigants, and even the judge.

Can you imagine jurors going home after hearing testimony and then going online to Google, Facebook and Twitter to see what the lawyers and parties to the lawsuit have posted? Do you think comments posted online by litigants in their "private" lives might have any impact on a juror? Put aside for the moment the juror's disregard for the Courts' stern warning to do no research online about the case or the people involved.

Should pre-trial instructions to jurors in New York now include specific warnings that they should not do a search on Facebook or Twitter for the parties to the lawsuit? Should they be told not to Google the lawyers? Is the judge immune from having his decisions exposed by inquisitive and internet savvy jurors?

In my opinion, most of today's jurors who come into Court in Brooklyn, the Bronx, Queens, Manhattan, Staten Island, Nassau & Suffolk are smart enough to know about Google, Facebook, MySpace and Twitter. The question that always arises is: Even though jurors are told not to do any outside independent research on the issues in the case, and told not to investigate the parties, how do you really know whether they listen?

The difficulty with our system is that you don't. As an attorney, I must rely on a juror's statements and assurances that they will uphold the law that the trial judge gives them. Having said that, I still believe that jurors should be reminded not to go online and research the issues, the litigants, the parties or even the judge.

California Attorney Achieves $18.4 Million Negligent Supervision Settlement

blog@www.oginski-law.com (news Author)7474 — Tue, 24 Feb 2009 08:00:00 EST

Attorney for the plaintiff, Stanley Jacobs of Jacobs, Jacobs & Eisfelder discusses the case of Roque Renteria, 14, a ninth-grade student who became an instant quadriplegic after being dropped to the ground - head first - during horseplay with a senior at the high school track team's afternoon practice. Jacobs claims cursory supervision on the part of a substitute coach who all but ignored what was happening on the field and also speaks to what role a cellphone's video and the boys themselves may have contributed to the case.

Attention PI & Med Mal Attorneys! Your Clients May Be Looking for a New Attorney

lawmed10@yahoo.com (blog Author)9319 — Sat, 21 Feb 2009 08:00:00 EST

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.

Gerry settles Medical Malpractice case for $1 Million Dollars

blog@www.oginski-law.com (news Author)7388 — Mon, 16 Feb 2009 08:00:00 EST

Failure to Recognize Nerve Injury Results in $1 Million Settlement

lawmed10@yahoo.com (blog Author)9176 — Mon, 16 Feb 2009 08:00:00 EST

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.

New York Medical Malpractice-Unnecessary Gyn Surgery

lawmed10@yahoo.com (blog Author)9119 — Sat, 14 Feb 2009 08:00:00 EST

Just uploaded a new informative video about a young woman who had a hysterectomy and didn't need one. Find out what the doctor told this young woman would happen if she didn't have her uterus surgically removed. Learn what the pathologist found after the surgery was over. Click here to watch the video.

New York Medical Malpractice-Your Doctor Was Sued. Is He Still a Good Doctor?

lawmed10@yahoo.com (blog Author)8847 — Fri, 06 Feb 2009 08:00:00 EST

You just found out that your treating doctor was sued for medical malpractice. You do not know the details, nor do you know what injuries the patient claimed as a result of the alleged malpractice. Does the fact that your doctor was sued mean that he or she is not a good doctor? The short answer is "No," and here's why.

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

In New York, an injured victim must show to a jury that what he is alleging is more likely right than wrong. In other words, he is not required to prove to a panel of 6 jurors that what he is saying is 100% absolutely true. Instead, he is only required to show that his version of his claim is "more likely true than not true." "But what if a juror just isn't sure about the injured victim's claim? What happens then?"

The answer is that a juror does not have to be absolutely sure. Instead, the juror just needs to determine whether what the plaintiff (the injured person bringing the lawsuit) is saying is more likely true than not true. If it is, then the jury is required to render a decision in favor of the plaintiff. During jury selection, a good trial lawyer may tell prospective jurors that "Dr. Jones is a good doctor and we are not here to dispute that. However, at a particular time, and at a particular place, this doctor was careless and that carelessness caused my client injury. When a doctor was careless, we expect that person to take responsibility for their actions."

To answer the question posed in the title of this article- just because a doctor is sued for malpractice does not mean that he is a bad doctor. This is especially true if the case has not finished and is still in litigation.

Most patients will not know what the facts of the case are. They will not know what the doctor's defenses are. Nor will they likely know the patient's injuries and whether that patient is permanently disabled. For all you know, the case may not have merit. On the other hand, it may.

The bottom line: Don't judge a person by accusations you may have overhead somewhere else. Wait for the outcome. Learn the details. If you are truly concerned, be straightforward with your doctor. Ask him directly. Ask for reassurance. The answer will help you make an informed decision about whether to continue your medical care with this doctor.

2 Questions Every New York Medical Malpractice Lawyer Needs To Ask?

lawmed10@yahoo.com (blog Author)8772 — Thu, 05 Feb 2009 08:00:00 EST

Many calls I receive are from potential clients who want to know if they have a valid medical malpractice case. These callers want to tell me their story, but sometimes the story rambles on and on. I can't follow the timeline, and I can't determine why this person is calling, and cannot tell what injury they're calling about. As politely as possible I tell them to stop and list to this two-part question:

"What do you think was done wrong that caused you permanent harm?"

That question usually stops most callers cold. They pause to think about the permanent injury they may have suffered.

Most callers have no problem explaining how they feel a doctor or hospital did something wrong. However, when asked to link the wrongdoing to the permanent injury, many callers simply get stumped, finally recognizing that they may not have a potential case here in the State of New York.

The two-part question listed above has, contained within it, three elements needed to prove a successful case. In every medical malpractice case in New York I must be able to prove that
1. There was wrongdoing,
2. The wrongdoing caused injury, and
3. The injury is significant and permanent.

Lots of callers can talk at length about elements number one and two, but when they think about the permanent injuries, many realize that they simply don't have any long-term permanent injury. It is also important for any lawyer to speak to, to inform you that in New York, all three of the elements needed to prove a malpractice case must be confirmed by a medical expert who has either treated you, or reviewed all of your medical records. If any one of those elements is missing, then there's no way to prove your case.

NY Medical Malpractice - 2 Reasons Why Victims Won't Recover Any Money

lawmed10@yahoo.com (blog Author)8624 — Sun, 01 Feb 2009 08:00:00 EST

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.

NY Medical Malpractice -Does Obnoxious Doctor or Small Injury=Compensation For Victim?

lawmed10@yahoo.com (blog Author)8625 — Sun, 01 Feb 2009 08:00:00 EST

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.

NY Medical Malpractice -3 Reasons Your Case Will Not Be Accepted

lawmed10@yahoo.com (blog Author)8627 — Sun, 01 Feb 2009 08:00:00 EST

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!

ANNOUNCEMENT! Gerry Oginski is now a Faculty Member of Solo Practice University

lawmed10@yahoo.com (blog Author)8420 — Sun, 25 Jan 2009 08:00:00 EST

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.

NY Accidents & Injuries- "Why Isn't The Store Responsible For My Injuries?"

lawmed10@yahoo.com (blog Author)8318 — Wed, 21 Jan 2009 08:00:00 EST

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.

Neurosurgery Delay Results in Pre-trial Settlement

lawmed10@yahoo.com (blog Author)8158 — Fri, 16 Jan 2009 08:00:00 EST

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.

Surgical Errors in New York

lawmed10@yahoo.com (blog Author)7928 — Wed, 07 Jan 2009 08:00:00 EST

A surgical error can range from an improper procedure to an unrecognized perforation in an intestine leading to injury and death. How do you know whether a surgical error rises to the level of a departure from good and accepted practice? By having either a treating physician tell you that the treatment was improper, or having a medical expert confirm that there was improper medical care.

In New York, before an attorney is permitted to bring a medical malpractice lawsuit on behalf of an injured victim, he must have the case reviewed by a medical expert who is qualified in that field of medicine. The expert must be able to confirm that there was improper medical care; that the improper treatment caused harm, and that the harm is significant and permanent.

If any one of those elements is missing, then it will be difficult, if not impossible to bring a successful case. If the expert confirms there is a valid case, then your attorney must submit a "Certificate of Merit" which lets the Court know that you have had an expert review and confirm there is a basis for a case.

If you have questions about the care and treatment you received, and believe there was wrongdoing that cause you permanent harm, then call Gerry today to answer your legal questions at 516-487-8207. He welcomes your call.

Newsday-Great Neck Lawyer turns to Web video marketing

blog@www.oginski-law.com (news Author)6753 — Mon, 22 Dec 2008 08:00:00 EST

Newsday profiled Gerry Oginski today, 12/22/08 and described how he uses video to help website viewers understand how the lawsuit process works.

Read the full article- it's a quick read.

Wal-Mart Stampede in New York-Who's At Fault?

lawmed10@yahoo.com (blog Author)6842 — Sat, 29 Nov 2008 08:00:00 EST

Early morning shoppers on Black Firday, at a Walmart in Valley Stream, NY turned their desire for discounted price shopping into a deadly stampede.

The crowd rushed through the Walmart doors without regard for human life or safety. A 34 year old man, Jdimytai Damour was crushed to death in the massive stampede.

Importantly, Newsday reported today, November 29, 2008 that Walmart defended their security at the store claiming that they had hired extra security staff as well as hired additional store employees and placed barricades.

Even before the young man was buried, finger pointing started. The president of the Nassau County Police Benevolent Association was quoted in Newsday saying that the Nassau County Police Department should have planned better and should have assigned more officers to patrol high-traffic shopping areas. Countering that statement was the NCPD spokesman who clearly stated that it is the stores' responsibility to provide store security. Compounding the finger pointing, the president of Union Local 1500, Bruce Both of the United Food and Commercial Workers Union is quoted by CNN.com as saying "Where were the safety barriers? Where was security? How did store management not see dangerous numbers of customers barreling down on the store in such an unsafe manner? This is not just tragic; it rises to a level of blatant irresponsibility by Wal-Mart."

OK, so here's the crucial question:

Who's at fault for this horrible display of greed causing total disregard for human life?
Is it Walmart?
Is it the extra security hired by Walmart?
Is it the Nassau County Police Department?

The answers may not be clear-cut and here's why.

(1) In New York, negligence is defined as lack of ordinary care. Was Walmart at fault for not anticipating large and rowdy crowds at their 5:00 a.m. opening on the day after Thanksgiving? According to another report in Newsday, Walmart is quoted as saying that they did expect large crowds and appropriately hired additional staff to deal with the crowds. Another story in Newsday by reporter Ellen Yan stated that "Several major chains have adopted crowd management, which can range from barricades to bargain information." A security expert, Lou Palumbo was quoted as saying that "You don't wait until [the crowds] are at your door. You push out your perimeters and start to orderly allow people onto your property."

(2) Did Walmart hire these additional security personnel as independent contractors from an employment or security agency or were they considered Walmart employees. The distinction is important for determining whether Walmart is legally responsible for the actions of their employees.

(3) Was the security in place at Walmart sufficient to allow for the orderly processing of shoppers into the store? The answer appears to be an obvious "No," based on the facts as reported in the newspapers.

(4) There is also a report coming out of news reports that a Walmart employee seems to have antagonized the crowd by telling them that the store would open before 5:00 a.m., and then immediately telling them that it was a joke and would not open before 5:00 a.m. It is not yet clear whether this was a root cause for the pushing that led to this disaster.

(5) Is the police department responsible? Well, we know that the stores are responsible for store security, however, these lines and barricades are taking place outside the store. The other question is whether the owner of the property bears any responsibility for this disaster in failing to properly plan and execute security and control for the stores on its' property.

(6) Were the additional security staff properly trained for dealing with such large and unruly crowds? Only a lawsuit and discovery of what these people knew will give us the answers to that question. If they were 'rent-a-cops' hired to temporarily staff the parking lot and store for this day only, an argument could be made that their training was totally insufficient to deal with the tragedy that took place on Friday.

Let's assume that negligence can be proven against at least one of the groups listed above. The next important question is what is the value of this young man's life?

DAMAGES

The value of human life is incapable of an exact number. If you ask a mother what the value of her son is, her reply will be that he was "Priceless." If you ask an economist the value of human life, he will look at what that man was earning, whether he was supporting a family, what his personal yearly expenses were, what benefits he was receiving from work, including health insurance and a pension plan. The economist will come up with a range of numbers taking into account inflation. Inflation is a change in the amount of money you have today compared to the value of that money years from today.

In New York, when a family brings a negligence lawsuit for someone's untimely death, this is known as a "Wrongful death" lawsuit. Typically, the damages in a negligence and wrongful death lawsuit include (1) pain and suffering from the time of the incident until his untimely death; (2) pecuniary loss-which is a fancy term for "economic loss" to the victims' family; and (3) the loss of a parent or child.

In cases where the victim was not working, then it is impossible to claim that the victims' family suffered financial loss as a result of their loved ones' death.

In this case, it is also not clear yet what the precise cause of death was, as the medical examiner has not yet completed an autopsy. However, if it can be shown that the victim experienced seconds or even minutes of pain and suffering before his death, also known as fear of impending doom, then a claim for pain and suffering can usually survive an attempt by defense lawyers to dismiss that claim prior to trial.

THE BOTTOM LINE

If in fact this tragedy was preventable and could have been avoided, then Mr. Damour's family is entitled to be compensated for the horror that their son suffered. When trying to find an attorney to handle this type of wrongful death case make sure you find an experienced personal injury and accident lawyer that handles negligence cases and wrongful death lawsuits in the State Of New York.

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.

Negligence in New York - How to Recognize It - NY Personal Injury Lawyer Explains

lawmed10@yahoo.com (blog Author)6625 — Wed, 26 Nov 2008 08:00:00 EST

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.

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.

NY Medical Malpractice - Informed Consent Trap - An Experienced Trial Lawyer Explains

lawmed10@yahoo.com (blog Author)6626 — Wed, 26 Nov 2008 08:00:00 EST

INFORMED CONSENT- THE MEMORY TRAP

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.

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.

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

lawmed10@yahoo.com (blog Author)6627 — Wed, 26 Nov 2008 08:00:00 EST

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.

A UROLOGY DISASTER IN NEW YORK; MEDICAL MALPRACTICE LAWYER EXPLAINS

lawmed10@yahoo.com (blog Author)6541 — Tue, 25 Nov 2008 08:00:00 EST

New York Medical Malpractice Trial Attorney Gerry Oginski explains what happened when a young man went to a urologist to fix a complaint of difficulty urinating:

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

This man’s unfortunate journey began when he started having difficulty urinating. He saw a a urologist (a specialist who treats diseases of the urinary system) who, after examining him, told him that he had abnormal scar tissue (called a “stricture”) in his urethra that needed to be cut open. This procedure is known as a “urethrotomy.” The doctor inserts a tube into his penis and then once the tube is in the correct place, then inserts a knife within the tube to cut away the scar tissue. The problem with this procedure is that the scar tissue is virtually guaranteed to return weeks or months later. Why? Because this procedure is a band-aid. It only removes the scar tissue, but does not eliminate the reason why it keeps coming back. Three months later, my client was back in the urologist’s office with the same exact complaints: Difficulty urinating, straining and pain. The doctor again recommended the same “cold-knife urethrotomy.”

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

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

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

First, the stent was not meant for young men. Rather, it was meant for old men who no longer have erections. The reason is that in a young healthy man who still gets erections a stent will cause excruciating pain. In an elderly man who no longer is able to achieve an erection, the stent may be the right fix. Second, this stent was not meant to be used for the amount of scar tissue that my client had- in fact the manufacturer’s own guideline clearly indicated it was not to be used for strictures that were as long as my client’s stricture.

To make matters even worse, after four weeks, my client had such excruciating and terrible pain in his penis from the stents that the doctor decided to try and remove the stents and insert two new ones. The problem is that these stents are designed to be permanent. Once inserted, layers of skin tissue grow over the stents to hold them in place. They literally become embedded within the urethra.

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

The pain where the stents were located became so unbearable that my client thought seriously about committing suicide. He obtained a second and third medical opinion, this time with a reconstructive urological surgeon. My client was told that his urethra was totally obliterated and he needed massive reconstructive surgery to fix it.

CORRECTIVE SURGERY

Two surgeries, 17 months apart. The first surgery took 12 hours. The embedded stents had to be painstakingly removed. Since the urethra needed to heal for more than a year, there had to be another location where the urine would exit from his body during this time. The surgeon created something called a “urinary diversion,” which is exactly what it sounds like. The urine is diverted from the urethra and out the penis, to a different location. The problem is that there is no other natural way for urine to exit in a man’s body, so the surgeon had to create an alternative opening. The only place for this alternate way to urinate was to make a surgical hole between his scrotum and his anus. Every time he needed to urinate, he’d have to sit down on the toilet, like a woman, and wipe every time. This was totally humiliating for him.

He also had to have a huge section of skin taken from his thigh to use as a skin graft inside his penis for his new urethra.
After almost 17 months of healing, with no sex and no ability to go swimming during this time, he had his second corrective surgery. The urinary hole next to his scrotum was finally closed. His urethra was reattached to his bladder and now urine flowed correctly out through his penis. After two months, he was remarkably better.

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

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

CONCLUSION:

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

The Doctor Will See You Now — Online

blog@www.oginski-law.com (news Author)6392 — Thu, 20 Nov 2008 08:00:00 EST

NEW YORK TIMES TECHNOLOGY BLOG
November 19, 2008, 9:08 AM

The Doctor Will See You Now — Online

By CLAIRE CAIN MILLER

If Roy Schoenberg, the start-up’s co-founder and chief executive, has his way, patients will no longer have to wait a month to see a doctor for an urgent sore throat, wait all day for a doctor to return their call or leave work midday and drive a long distance for a routine appointment. Instead, patients will log on to their computers and find themselves face-to-face with physicians over Webcam...

A.I.G. has agreed to provide malpractice insurance to doctors providing online care, and the cost is low enough that most of the health plans are paying for it instead of charging the doctors, Dr. Schoenberg said.

To read the full article go to:
http://bits.blogs.nytimes.com/2008/11/19/the-doctor-will-see-you-now-online/

Doctor liable for lawyer's fatal cancer

blog@www.oginski-law.com (news Author)6367 — Tue, 18 Nov 2008 08:00:00 EST

Doctor liable for lawyer’s fatal cancer

Jury’s award to family, estate capped at $3.6M

STEVE LASH

Daily Record Legal Affairs Writer

November 17, 2008 7:23 PM

A Montgomery County Circuit Court jury has returned a $5.8 million medical-malpractice verdict in the death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain.

The award will be reduced to $3.6 million due to Maryland’s cap on non-economic damages in medical-malpractice cases, said plaintiffs’ attorney Patrick Malone. He represents the family and estate of Richard H. Semsker, who died in 2007 and is survived by his wife and two children.

To read the full article go to:
http://www.mddailyrecord.com/article.cfm?id=9091&type=UTTM

New York Medical Malpractice-More Examples of Malpractice

lawmed10@yahoo.com (blog Author)5063 — Mon, 17 Nov 2008 08:00:00 EST

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.

BROOKLYN MEDICAL MALPRACTICE LAWYER PROVIDES MONTHLY UPDATES TO CLIENTS

lawmed10@yahoo.com (blog Author)5064 — Mon, 17 Nov 2008 08:00:00 EST

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.

NEW YORK CAR ACCIDENTS- 12 Key Deposition Techniques in a Car Accident Case

lawmed10@yahoo.com (blog Author)5066 — Mon, 17 Nov 2008 08:00:00 EST

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.

New York Medical Malpractice- Failure To Supervise Leads To Re-Breaking Bone

lawmed10@yahoo.com (blog Author)5068 — Mon, 17 Nov 2008 08:00:00 EST

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.

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

lawmed10@yahoo.com (blog Author)5070 — Mon, 17 Nov 2008 08:00:00 EST

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.

NEW YORK MEDICAL MALPRACTICE-Are Injured Victims Money Hungry?

lawmed10@yahoo.com (blog Author)5071 — Mon, 17 Nov 2008 08:00:00 EST

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.

Lawyers swoop in after the Metrolink crash, looking for clients

lawmed10@yahoo.com (blog Author)5072 — Mon, 17 Nov 2008 08:00:00 EST

Here's an article directly on point with lawyer behavior that is simply unacceptable. It describes lawyers actually soliciting injured victims and their families and encouraging them to sign up with a particular law firm following the train accident tragedy in California. Correctly, the California Bar has reminded attorneys that soliciting victims is unethical and improper. In New York, in a mass disaster, lawyers are prevented from contacting any victim or family member within 30 days of the accident. There are very few exceptions. Ask yourself this question: "Would you hire a painter because he knocks on your door, telling you he's trolling around the neighborhood and sees that your house is in need of new paint?"

"Would you hire a contractor who calls you out of the blue to say you need to renovate your kitchen?" How did he get your name? Simple, from his friend who is a refrigerator repair man, who called him to say that you could certainly use a new kitchen. What do you know about him? Have you checked his references? Why does he have to chase customers for business?

Read the article. It's an eye opener.

Lawyers swoop in after the Metrolink crash, looking for clients

State bar officials cite possible professional sanctions, but the aggressive attorneys note that time is limited and the stakes are expected to be very high.

By Carol J. Williams, Los Angeles Times Staff Writer
October 5, 2008

The phone rang at a rare moment between Angie Akins' frantic drives from her home and her husband's bedside in an intensive-care unit, between shuttling to her job and driving her 14-year-old daughter to after-school sports and ballet.

It was a lawyer who'd spotted her husband's name among those badly injured in the Sept. 12 Metrolink crash in Chatsworth. An attorney she had never met was urging her to retain him and sue the government railroad for all it was worth. Only a week had passed since her comfortable suburban life had been upended by tragedy.

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

lawmed10@yahoo.com (blog Author)5067 — Mon, 17 Nov 2008 08:00:00 EST

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.

3. You can’t believe that your clothes had to be cut off of you in the emergency room, then had your entire body x-rayed and sent for CT scan. You can’t believe that you needed emergency surgery to fix the bones in your thigh-bone, also known as the femur, and your arm. When you woke up you learned that the surgeons had to put in a titanium rod into your leg with steel plates, surgical screws and pins to hold the bones together.

4. You can’t believe that the surgeon told you your leg will be one inch shorter than the other, and that you’ll have to learn to walk again and need rehabilitation for about three weeks after getting out of the hospital in a week.

5. You can’t believe that you’ll be out of work, at a minimum, for 5 weeks, and your disability insurance won’t even kick in unless you’re out of work for 9 weeks continually. Your can’t believe that your boss in the factory where you work stopped paying you your salary after two weeks, and now you have no income. Your wife does not work and you have two young kids in elementary school.

6. You can’t believe that the bone in your leg is not healing properly and the surgeon tells you that you will need another surgery in two months. You can’t sleep at night because the cast on your arm requires you to sleep only on one side and the pain in your leg requires you to take narcotic pain medication on a regular basis. Your kids cannot understand why you can’t play with them or pick them up from school since you are now home during the day. You can’t believe how difficult it is to go up and down your stairs when you have a cast on your leg and also on your arm. Going to the bathroom is a 15 minute ordeal as is getting dressed in the morning. Brushing your teeth and hair with your other hand is confusing and frustrating. Spending quality time with your wife is physically impossible, and the agony of figuring out how you’ll survive without an income is horribly stressful.

In New York, an injured victim must be compensated for their medical expenses both in the past and in the future, their lost earnings, their lost future income, their pain and the suffering it caused to both the victim and their spouse, as well as any lost opportunities he would have had, had the accident not happened. When a wrongdoer causes an accident that causes harm, he incurs a debt that must be repaid. Often, with a seriously injured victim, the cost to repay that debt is significant.

If an accident happens, call Gerry Oginski, an experienced New York personal injury and accident attorney, to make sure that your rights and ability to obtain proper compensation is protected. Gerry can be reached through his website: http://www.oginski-law.com or you can call Gerry personally at 516-487-8207. For more information, take a look at Gerry’s educational video tips on his website as well as hundreds of free reports about accidents, wrongful death and medical malpractice in New York.

Queens Bicycle Rider Hit By Car at a T Intersection-New York Accident Attorney Explains

lawmed10@yahoo.com (blog Author)6158 — Mon, 17 Nov 2008 08:00:00 EST

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.

A DENTAL IMPLANT NIGHTMARE- New York Dental Malpractice Lawyer Explains

lawmed10@yahoo.com (blog Author)6159 — Mon, 17 Nov 2008 08:00:00 EST

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

WHAT IS A DENTAL IMPLANT?

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

THE COST TO PLACE IMPLANTS

My client had been to a few different implant dentists and was told that for six implants it would cost anywhere from $35,000 to $50,000. Since this man did not have the money to pay for these implants, he held off, and continued to use his ill-fitting denture that would fall out at the most inopportune times. One day, while at work, my client saw an ad by this oral surgeon promising inexpensive dental implants and great results. The ad was intoxicating and held the promise of a great set of teeth for only a fraction of the cost that most other dentists were charging.

“IF IT SOUNDS TOO GOOD TO BE TRUE...IT IS” This patient was quoted a price of $22,500 to put in 10 implants on his upper jaw, and 10 implants on his lower jaw. Twenty implants total. All for the low, low price of $22,500. That price also included the restoration for full porcelain fixed bridges on both upper and lower jaws. What a bargain. What the patient got instead was botched dental treatment. To begin with, the oral surgeon failed to properly evaluate whether this patient had sufficient bone for all these implants. He failed to identify where the nerves were in relation to where he was going to insert the implants. Unfortunately for the patient, the implants were put in too close together; they were improperly angled; there were too many implants; he put an implant into the patient’s sinus and never realized it; he created a hole in the sinus and despite trying to fix it twice, failed.

THE RECORDS DON’T LIE The doctor’s dental records were worse than scribbles. They had no useful information. The notes reflecting the doctor’s comments after the dental implant surgery simply said “Observe.” That’s it. No notes about patient complaints, what type of examination he performed on that visit or any other visit for that matter. No notes about what his treatment plan was. Incredibly, while the patient was having the implants inserted the doctor claimed that he would take one to two intra-operative x-rays to determine if the implants were in the correct place. Once he decided they were in the right place, he would then inexplicably throw away the x-rays he had taken. The doctor attempted to explain that he had no use for the intra-operative x-rays once the implants were embedded into the jaw. The fact that the x-rays were technically the patient’s property had no impact on this oral surgeon.

A DENTIST ABANDONS HIS PATIENTS Months after the patient had his implants placed into his jaw, he received a letter from this dentist announcing that he could no longer continue to provide dental services, giving various excuses. Incredibly, the dentist failed to refer this patient, or any other patient, to another oral surgeon to continue their dental implant care. As a result, my client remained without any teeth in his mouth for two full years. Calls and letters to this oral surgeon requesting a refund of cash that had been paid went unanswered. All efforts to recoup money for the improper work and unfinished work were ignored.

NEXT STOP: To an experienced New York dental malpractice lawyer.

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

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

Ambulance chasing? Lawyers zero in on metro-east clients

blog@www.oginski-law.com (news Author)5812 — Sat, 04 Oct 2008 08:00:00 EST

Here's an article on point about lawyers who solicit accident victims after having obtained their personal information from police accident reports. I've been writing about this for years. If you get a letter from a law firm following an accident, does that letter make you want to rush to the phone to call these unknown, faceless lawyers? Let me ask you a better question: If a man knocks at your door, out of the blue, and tells you he was driving around your neighborhood and noticed that your house needs painting, are you going to let him in to paint your house? You know nothing about this person; you didn't call him; you don't know anything about his credentials or his references. Do you let him in? The same exact question for some lawyer who sends you a letter telling you that he (or she) can answer all of your legal questions and solve all of your legal dilemmas, without knowing a single thing about you.

You are best off to send him on his way. If you really need an attorney, you should be the one doing the research and learning how to select an attorney for your possible case. Some lawyers use the argument that injured victims may not know their rights. That may be true. But ask yourselves another question: Why is a law firm sending me letters and promising to send an investigator to my home the same day I call? Are they that desperate to sign me up? Is my case that valuable to them, without them even knowing what injuries I suffered in my car accident? Here's the article. You decide.

Ambulance chasing? Lawyers zero in on metro-east clients

BY BRIAN BRUEGGEMANN

News-Democrat

Injured in a car accident? Need a lawyer?

Don't worry, you no longer have to watch daytime television, waiting for the lawyers' commercials. The lawyers are already looking for you.

Personal-injury attorneys are getting -- or trying to get -- access to crash reports from police departments across the metro-east. The lawyers' investigators scour the reports, looking for names and addresses of people who have been injured or might have a lawsuit on their hands. The chosen people then get letters and brochures in the mail, in which the lawyers tout their ability to win multimillion-dollar settlements.

Two law firms in particular, both with headquarters in Wisconsin, are blanketing metro-east police departments, trying to get their hands on crash reports. Some of the departments are allowing access, while others are resisting on grounds that letting people see the reports could lead to identity theft, or would be too much of a burden for police.

Some police officials flat-out call the practice ambulance-chasing. But the lawyers say they're trying to inform people of their rights and put them on a level playing field with insurance companies.

"Insurance companies can immediately contact people after an accident, and people should have the option to know what their rights are, if they want to talk to a lawyer," said Michael Hupy of the Milwaukee-based Hupy and Abraham law firm. "Many people still think you have to pay a fee to talk to a personal-injury lawyer."

TO READ THE FULL ARTICLE GO TO:
http://www.bnd.com/news/crime/story/485257.html

Don't look to a doctor for understanding

blog@www.oginski-law.com (news Author)5769 — Tue, 23 Sep 2008 08:00:00 EST

Don't look to a doctor for understanding

6:00 PM, September 22, 2008

Doctors provide little in the way of empathy, even when their patients seem to ask for it, according to a study in the Sept. 22 Archives of Internal Medicine. Researchers looked at real doctor/patient encounters between 137 patients and their oncologists or thoracic surgeons from a Veterans Affairs hospital.

Doctors could respond to concrete concerns, such as that a patient was feeling physical pain, or was having trouble getting an appointment. But they largely ignored patients' emotional concerns -- even when that concern was an outcome of surgery, or how long they had left to live.

Here's a sample of an encounter reported in the study when the patient received the diagnosis:

"Patient: But this is kind of overwhelming, you know...I've had anxiety problems before. I go to the [mental health clinic]...

Doctor: Okay."

To read the full blog post go to:
http://latimesblogs.latimes.com/booster_shots/2008/09/dont-look-to-a.html

Staten Island Hospital To Pay $89 Million In Fraud Case

blog@www.oginski-law.com (news Author)5699 — Tue, 16 Sep 2008 08:00:00 EST

$9 Million Awarded For Failing To Diagnose Spotted Fever

blog@www.oginski-law.com (news Author)5621 — Fri, 05 Sep 2008 08:00:00 EST

Jury Awards Wichita Man $9.8 Million

Posted: Sep 3, 2008 11:04 PM

Updated: Sep 4, 2008 06:34 AM

Michael Schwanke (Wichita, KS)

Kyle Jim was 11-years-old when he went to Via Christi St. Francis Emergency Room in 1996 with fever, rash and headache.

It turns out Kyle had Rocky Mountain spotted fever he contracted from a tick.

Doctors misdiagnosed Kyle and didn't get him the right medication soon enough.

Because of the misdiagnosis, both of Kyle's legs had to be amputated, plus four fingers on one hand, and his index finger on the other. He also lost his hearing, speech and has brain damage.

His attorney says today's verdict is a big win for Kyle and his family and brings awareness to a treatable disease.

"This is a disease that was cured by American medicine and considered to be a triumph of American medicine. Kyle should not be in this condition and Margie (Kyle's mom) shouldn't have to suffer like she has," says attorney John Sheehy who worked with Patterson, Gott & Burk.

Of the $9 million awarded, more than $5 million was for pain and suffering, but Kyle's attorneys say Kansas law caps that amount at $250,000.

To read the full article go to:
http://www.kansascw.com/Global/story.asp?S=8949085

Jury awards $16 Million for False Sex Abuse Claim

blog@www.oginski-law.com (news Author)5592 — Sat, 30 Aug 2008 08:00:00 EST

KANSAS CITY, Mo. -- A federal jury awarded a man who was acquitted of molesting his adopted daughter $16 million on Friday. The verdict came in Theodore W. White Jr.’s lawsuit against his ex-wife and a Lee's Summit police officer.

White, who now lives in Aurora, spent more than five years in prison after a jury convicted him in 1999 of molesting the girl between 1995 and 1998. He got a new trial on appeal in 2002 after prosecutors revealed the lead detective, Richard McKinley, was dating White’s wife during the investigation. The ex-wife, Tina, is the mother of the girl and is now married to McKinley.

White’s second trial ended with a hung jury, which was split 11-1 in White’s favor. His acquittal in his third trial came in February 2005, and White left jail and moved to Aurora to be near his family, who supported him and raised money for his defense.

To read the full article go to:
http://www.ky3.com/news/local/27671074.html

Jury awards Cornwall crash victim's family $29.4M

blog@www.oginski-law.com (news Author)5521 — Sun, 24 Aug 2008 08:00:00 EST

Jury awards Cornwall crash victim's family $29.4M

Text Size: A | A | A

Print this Article Email this Article
Respond to this Article

By Oliver Mackson

Times Herald-Record

August 23, 2008

GOSHEN — A state Supreme Court jury awarded $29.4 million in damages Friday to the family of a New Jersey man who died in the aftermath of a 2002 car crash on the state Thruway in Cornwall.

It appears to be the largest civil damage verdict in Orange County's history, said Steven I. Milligram, the president of the Orange County Bar Association. "I've been practicing here since 1986, and I have not heard of anything that high," said Milligram, who's a partner in a Newburgh law firm.

The crash occurred on Jan. 25, 2002, when a freight container on a northbound flatbed trailer smashed into the bottom of the Pleasant Hill Road overpass. Denise Malkin of Franklin Lakes, N.J., swerved her SUV to avoid the wreckage of the exploding container and was broadsided by another tractor-trailer.

The impact left Malkin's husband, Peter, suffering from serious internal injuries and brain damage that eventually claimed his life.

His daughter, who was 15 at the time, also suffered injuries. The Malkins were on their way to Vermont to go skiing.

During the two-week trial before Justice Joseph Alessandro, the jury heard Malkin described as "a spectacular person and spectacular worker," said Robert Kelner, the lawyer who represented Malkin's family. Malkin worked for CSC Corp., a large business technology company.

The damages are against Sebastian Tremblay of Montreal, who was at the wheel of the tractor-trailer and got a ticket for driving an over-height vehicle, as well as two Canadian companies: Transport Expressway Inc., which owned the truck, and Finloc, a leasing company with insurance on the trailer.

"This case was one of the worst human catastrophes that I have seen in my practice. It came out before the jury as to the horrible impact of this accident on all of the members of Peter Malkin's family, and I really do feel that justice was done," Kelner said after the verdict.

Lawyers for the defendants indicated that they'll ask Alessandro to reduce the size of the award.

Wall Street Journal Reports Unacceptable Hospital Infections

blog@www.oginski-law.com (news Author)5466 — Fri, 15 Aug 2008 08:00:00 EST

Hospital Infections:
Preventable and Unacceptable

By BETSY MCCAUGHEY
August 14, 2008; Page A11

On July 30, a jury awarded over $2.5 million to James Klotz and his wife Mary in a medical malpractice lawsuit against a heart surgeon, his group practice and St. Anthony's Medical Center in St. Louis, Mo. In 2004 Mr. Klotz, now 69, was rushed to the hospital with a heart attack and a pacemaker was surgically implanted. He developed a drug-resistant staph infection called methicillin-resistant Staphylococcus aureus (MRSA). It was so severe that he underwent 15 additional operations, spent 84 days in the hospital and lost his right leg, part of his left foot, a kidney and most of his hearing.

To read the entire article go to:
http://online.wsj.com/article/SB121867229022038907.html?mod=googlenews_wsj

Stuff of nightmares: Criminal prosecution for medical malpractice

blog@www.oginski-law.com (news Author)5445 — Tue, 12 Aug 2008 08:00:00 EST

Google the words "New York Medical Malpractice Lawyer" to see which attorney website comes up #1 on the 1st Page of Google

blog@www.oginski-law.com (news Author)5438 — Tue, 12 Aug 2008 08:00:00 EST

Wal-Mart ordered to pay $1 Million to Florida Woman For Injuries

blog@www.oginski-law.com (news Author)5260 — Mon, 14 Jul 2008 08:00:00 EST

A Lee County jury said Wal-Mart owes a Fort Myers woman $1 million because its negligence caused her to fall and injure her neck.

Linda Gail Wright, now age 57, slipped at the North Fort Myers Wal-Mart on Oct. 30, 2002 while searching for Halloween candy.

She slipped on a puddle of oil and water that had spilled from rotisserie chickens, which were packaged by Wal-Mart in plastic containers.As a result, Wright, an avid horse trainer and rider, underwent multiple cervical spine surgeries. She now has a permanent titanium cage stabilizing her neck.
Wright owes more than $123,000.00 in medical bills.

Throughout the trial, Wright's attorneys highlighted Wal-Mart's failure to follow many of its own policies and procedures in regards to keeping its floors safe and clean for customers.

$5 Million Awarded in Upstate Barge Accident

blog@www.oginski-law.com (news Author)5247 — Sat, 12 Jul 2008 08:00:00 EST

KINGSTON — A state Supreme Court jury in Ulster County this week awarded $5 million to a Milton man who suffered injuries in a barge accident.

George Brown, 56, required three surgeries to address back injuries in the wake of the 2003 accident, which happened while his barge was on Long Island Sound. His lawyer, Elliot Tetenbaum, argued that the barge's owner, Reinauer Transportation Cos. of Staten Island, should be punished for causing Brown's medical predicament.
Reinauer's lawyer argued Brown had pre-existing medical problems.

Queens Jury Awards $19.6 Million For Traumatic Delivery

blog@www.oginski-law.com (news Author)5203 — Wed, 02 Jul 2008 08:00:00 EST

A jury has awarded $19.6 million to a couple who sued a hospital for medical malpractice after their baby was brain-damaged at birth and the mother was mutilated in the delivery.

The Maings' lawyer, Thomas Moore, said Daniel Maing was born with cerebral palsy after Dr. Po Ching Fong, a hospital resident, yanked at his head with forceps for 23 minutes until she pulled him through his mother's birth canal.

To read the article go to:

http://www.1010wins.com/Queens-Jury-Gives--19-6M-to-Injured-Baby-s-Parents/2519384

Jury Awards $12 Million in Baby Death Malpractice Suit

blog@www.oginski-law.com (news Author)5188 — Mon, 30 Jun 2008 08:00:00 EST

Couple's Baby Died at Tampa General Hospital

By Robin Williams Adams
THE LEDGER

Published: Friday, June 27, 2008 at 9:26 p.m.
Last Modified: Friday, June 27, 2008 at 9:31 p.m.

TAMPA | A jury hearing a civil lawsuit against Tampa General Hospital awarded a $12 million judgment Friday to a Polk County couple whose premature baby died there after having been transferred from Winter Haven Hospital.

Parents Allyson Parham and Robert Gardner contended in their suit that TGH didn't have the appropriate specialists on its staff to deal with their baby's infection. The suit is one of at least nine with similar allegations filed by Tampa lawyer Harold Tripp Sebring.

Amanda Sparks, a Fort Meade resident who is among the other parents in those suits and was in the Tampa courtroom Friday, said the family "cried and cried and cried" when the verdict was announced.

To read the full article go to:

http://www.theledger.com/article/20080627/NEWS/617208967/1410&title=Jury_Awards__12_Million_to_Polk_Couple_in_Malpractice_Suit

Woman wins more than $6 million in medical malpractice case

blog@www.oginski-law.com (news Author)5169 — Sat, 28 Jun 2008 08:00:00 EST

Woman wins more than $6 million in medical malpractice case

By Julie Manganis
Staff writer

SALEM — A woman who wanted to stop having to take heart medications so she could have another child, only to end up with permanent heart damage, has won a $4.3 million verdict in a lawsuit against two Boston doctors.

With interest, the total amount will be more than $6 million, said the woman's lawyer, Annette Gonthier-Kiely of Salem. It's one of the larger jury awards in a medical malpractice case in recent history. The jury returned its verdict Wednesday in Suffolk Superior Court.

Amesbury native Denyse Richter was a 39-year-old mother of three who wanted to have a fourth child when, in 2002, she saw Dr. Laurence Epstein, chief of the arrhythmia service at Brigham and Women's Hospital in Boston. Epstein was a noted specialist in a procedure that used radio frequency catheter ablations — using high-frequency radio waves to burn away abnormal cells that were causing the arrhythmia.

To read the entire article go to:

http://www.salemnews.com/punews/local_story_179230035.html

Jury Awards $12 Million to Polk Couple in Malpractice Suit

blog@www.oginski-law.com (news Author)5170 — Sat, 28 Jun 2008 08:00:00 EST

Jury Awards $12 Million to Polk Couple in Malpractice Suit

Couple's Baby Died at Tampa General Hospital

By Robin Williams Adams
THE LEDGER

Published: Friday, June 27, 2008 at 9:26 p.m.
Last Modified: Friday, June 27, 2008 at 9:31 p.m.

To read the full article go to:http://www.theledger.com/article/20080627/NEWS/617208967/1410&title=Jury_Awards__12_Million_to_Polk_Couple_in_Malpractice_Suit

ExxonMobil to pay $1M jury award to woman who chopped off fingers

blog@www.oginski-law.com (news Author)5171 — Sat, 28 Jun 2008 08:00:00 EST

ExxonMobil to pay $1M jury award to woman who chopped off fingers

6/26/2008 1:00 PM

By David Yates

Minutes before they began deliberating, plaintiff's attorney Brett Thomas told jurors that if they didn't award his client $3.7 million for inadvertently sticking her hand in a rotary feeder, ExxonMobil would throw a party.

Seemingly, jurors thought the oil company executives could party but on a smaller budget, awarding the plaintiff Vickie Hall $1 million for her self-mutilating injury.

The week long trial of Hall vs. ExxonMobil began June 17 in Judge Gary Sanderson's 60th District Court, and concluded Wednesday, June 25.

When a conveyor began spilling polyethyline pellets onto the floor, workers at ExxonMobil came up with modifications to the machine that solved the problem. But within hours, a contract worker had parts of her fingers sliced off while using the altered equipment.

Jurors were asked to decide whether ExxonMobil negligently failed to place a guard over the rotary blade, or if Hall, who knew a spinning blade hovered only inches away from her hand, was solely responsible for her injury.

To read the rest of the article go to:

http://www.setexasrecord.com/news/213526-exxonmobil-to-pay-1m-jury-award-to-woman-who-chopped-off-fingers

$6 Million Awarded to Paralyzed Woman

blog@www.oginski-law.com (news Author)4979 — Sun, 08 Jun 2008 08:00:00 EST

Jury awards $6 million to woman paralyzed after receiving shots at area pain clinic

Posted by Shandra Martinez | The Grand Rapids Press June 08, 2008

GRAND RAPIDS -- A Kent County jury has ordered a West Michigan pain clinic and one if its former doctors to pay $6 million to a woman who became paralyzed after a treatment.

Jurors sided with Betty Geldersma's contention that the doctor was negligent for failing to swab her neck with disinfectant before giving her pain shots.

Geldersma developed an infection in her spine canal that resulted in losing use of her legs and most function of her arms and hands, said her lawyer, Grand Rapids attorney Brad Glazier.

"Medical negligence cases are always very difficult because juries don't want to second-guess a doctor. But we thought this was a case of strong liability and large damages," Glazier said. "This type of infection is not something that happens unless there has been a failure to swab the area."

To read the entire article go to:

http://blog.mlive.com/grpress/2008/06/jury_awards_6_million_to_woman.html

Doc slammed with $20.5 million in damages after lipo death

blog@www.oginski-law.com (news Author)4925 — Sat, 31 May 2008 08:00:00 EST

Montco doc, anesthetist found liable after complications claim life of teen

By WILLIAM BENDER
Philadelphia Daily News

benderw@phillynews.com 215-854-5255

AMY FLEDDERMAN's case was never going to be settled out of court, her parents say, because it was never about money.

Daniel and Colleen Fledderman, of Newtown Square, Delaware County, decided in 2001 that the doctor who performed the fatal liposuction surgery on their daughter, an 18-year-old Penn State freshman, must be held accountable for her death.

And they wanted to warn the public about Dr. Richard Glunk, who they say refused to call an ambulance before it was too late to save her life.

Glunk, a board-certified plastic surgeon who has been practicing for 21 years, insists that Fledderman died from a rare and virtually untreatable complication that was out of his control.

Yesterday - exactly seven years after Fledderman walked into Glunk's King of Prussia office to have pockets of fat removed from her chin and stomach - a Philadelphia jury said he was wrong.

And they want him to pay for it.

The jury of nine women and three men deliberated for 14 hours over three days before awarding the Fleddermans $20.5 million in compensatory and punitive damages, finding that Glunk and his nurse anesthetist were responsible for Amy's death.

To read the entire article, go to: http://www.philly.com/philly/news/20080524_A__20_5M_AWARD_IN_LIPO_DEATH.html

$6 Million Awarded In Morphine Overdose Death

blog@www.oginski-law.com (news Author)4846 — Fri, 16 May 2008 08:00:00 EST

$6 million awarded to family of woman in care-home death

But settlement will trump the jury's amount

By Rhonda Bodfield

ARIZONA DAILY STAR

Tucson, Arizona | Published: 05.15.2008The family of a woman who died of a morphine overdose was awarded $6 million by a Pima County jury.

The jury determined last month that 90 percent of the award should be paid by the nursing home that cared for 81-year-old Sylvia Culpepper, while 10 percent should be paid by Tucson Medical Center.

To read the rest of the story go to:

http://www.azstarnet.com/allheadlines/239074

$15 Million Awarded to 14 Year Old Car Accident Victim

blog@www.oginski-law.com (news Author)4798 — Mon, 12 May 2008 08:00:00 EST

Jury awards $15 million to crash victim

By Jutta Biggerstaff / Hi-Desert Star

Friday, May 9, 2008 11:27 PM PDT

TWENTYNINE PALMS — A jury has awarded $15 million to the family of a 17-year-old Twentynine Palms boy who was severely injured in a 2005 traffic collision in Joshua Tree.

According to Spencer Lucas, attorney for the family, Kyle Tilton, who was 14 at the time of the accident, will require care for the rest of his life, and the award will adequately provide for his future medical needs.

"The family is very pleased," he said. "They are relieved that now they can rest assured that Kyle will have the funds to be able to have the proper medical treatment that he so desperately needs."

The boy was injured Nov. 2, 2005, when a Southern California Gas truck ran a red light at Twentynine Palms Highway and White Feather Road and struck the Tilton vehicle on the passenger side where Kyle was sitting.

To read the rest of the story click on the link:

http://www.hidesertstar.com/articles/2008/05/10/news/news2.txt

NY Lawyer Sued For Not Timely Starting Medical Malpractice Lawsuit

blog@www.oginski-law.com (news Author)4795 — Sun, 11 May 2008 08:00:00 EST

Lawyer sued for not filing medical malpractice papers against urologist

BY JOHN MARZULLI

DAILY NEWS STAFF WRITER

Monday, April 21st 2008, 4:00 AM

A Great Neck lawyer is being sued for failing to file court papers in time to sue a urologist who allegedly botched a penile implant procedure.

The suit, filed in Brooklyn Federal Court, accuses Ira Podlofsky, of the law firm Podlofsky, Hill, Orange & Modzelewski, of missing the deadline to file a medical malpractice action against the doctor.

To read the article at the Daily News click on:

http://www.nydailynews.com/ny_local/brooklyn/2008/04/21/2008-04-21_lawyer_sued_for_not_filing_medical_malpr-2.html

Judge finds Georgia's malpractice caps unconstitutional

blog@www.oginski-law.com (news Author)4751 — Mon, 05 May 2008 08:00:00 EST

An Atlanta judge says a Georgia law that limits medical malpractice damages in some cases is unfair to the poor and middle class. He says the law needs to be tossed out.

Click on the link below to read the full story at WALB news.

NY Sen. Schneiderman Votes for Us, Against "Harvey's Law"-Watch the Video

blog@www.oginski-law.com (news Author)4659 — Fri, 18 Apr 2008 08:00:00 EST

KIA FRANKLIN

NY Sen. Schneiderman Votes for Us, Against "Harvey's Law"

I'm proud of how Senator Eric Schneiderman a) stood by his principles and stood up against the squandering of our public funds. Articulating why a proposed bill to subsidize New York medical malpractice insurance is problematic, he identifies the real medical malpractice crisis—the tiny 4% of doctors who are responsible for a whopping 50% (yes, half) of the medical malpractice payouts. The real problem is the lack of effective professional discipline that allows these doctors to keep practicing. The bill he voted against would exacerbate this problem by forcing the vast and overwhelming majority of good doctors to subsidize malpractice insurance for high risk doctors, spreading the costs of their malpractice across the board.

Below is a clip of him explaining why he is voting against the bill. This is the type of thing we need to see more of: representatives who fully grasp the issues and the interests involved, and are willing to stick to their guns and speak out on behalf of what they believe.

CLICK HERE TO WATCH THE VIDEO:

http://www.youtube.com/watch?v=lL15G-cyQYI

Sign or go elsewhere litigation-wary doctor's demand

blog@www.oginski-law.com (news Author)4590 — Sun, 06 Apr 2008 08:00:00 EST

Sign or go elsewhere litigation-wary doctor's demand

By Kris Hundley, Times Staff Writer
Published Friday, April 4, 2008 4:38 PM

In her nearly two decades as a nurse, Kathleen M. Wagner of Palm Harbor has encountered dedicated doctors as well as frivolous malpractice lawsuits.

But she still flinched when a video provided by her doctor's office in Clearwater required that she give up her right to a trial by jury if she wanted treatment.

"I watched it thinking, 'They can't mean me,' " she said of the binding arbitration agreement required by Tampa Bay Women's Care, the largest obstetrics/gynecology group in the area. "I'd never sue them, but I don't want my rights taken away."

Unhappy but unwilling to miss her annual checkup, Wagner, 60, signed the mandatory agreement. Then she wrote to Randy Cohen, who writes the weekly "Ethicist" column for the New York Times. "Is this policy ethical?" Wagner asked. In a response entitled "Doctor, Bully," and published March 30, Cohen said the practice may be legal, but it is not ethical.

"The right to our day in court should be among the inviolable,' he wrote.

Not so in Florida. According to the state's largest medical malpractice insurer, several hundred doctors now require patients to accept binding arbitration as a condition for care. Obstetricians are particularly likely to have such a requirement because their specialty commands some of the highest rates for professional liability premiums.

"It's not just in Florida; it's something that's happening around the country," said Robert White, president of First Professionals Insurance Co., known as FPIC, in Jacksonville. "More and more we're seeing a desire on the part of doctors and patients to find an alternative to the very expensive, protracted litigation process."

White said the 70 doctors at Tampa Bay Women's Care are among "several hundred" of the insurer's 7,000 customers statewide who require patients to sign a binding arbitration agreement. FPIC even helped to create the practice's seven-minute explanatory video, available on the doctor's Web site or hand-held DVD.

"It utilizes a medium that preserves what people were told if there's any dispute in the future about what was said," White said.

Key points of the agreement are that patients and their families waive their constitutional right to a jury trial in case of a claim.

A lawsuit is still filed with the court, but the complaint is heard by a three-member arbitration panel, with each side choosing one arbitrator and the third picked jointly. Proceedings are private, and the cost of arbitration is split between the patient and doctors. The arbitrators' decision is final, with very limited rights to appeal.

Clancy Bounds, a Winter Park lawyer, said arbitration might be appropriate for disputes over cell phone contracts but not in a doctor-patient relationship.

"You walk into a doctor's office for treatment, not to deal with a significant legal issue and decision,' he said. "The relationship starts out with an uneven hand in favor of the doctor."

Bounds, a member of Florida Justice Association, said trial lawyers are trying to get a bill through the Legislature that will add certain consumer protections to the arbitration process.

"Right now it's the Wild West out there," he said. "And business controls the rules being applied."

Dr. Robert Yelverton, chief executive of Tampa Bay Women's Care, said that only about 100 patients have refused to sign the arbitration agreement, which has been phased in over the past year.

"Very few patients have objected,' he said, adding that the group had 100,000 patient visits last year. "They understand why we're doing this."

The reason, he said, is simple economics. Yelverton's 70 OB/GYNs pay an average of $67,000 each year for $250,000 worth of liability insurance. That's a higher premium for less coverage than in the past, but at least the group's doctors have insurance. About 5,000 of the state's 35,000 physicians have opted to go without insurance, though they're required by law to post a sign saying they have posted a $250,000 bond.

"Our insurer didn't give us any discount for requiring arbitration, but we hope our claims will be more rational and reasonable and eventually it will reduce overall rates,' Yelverton said. "Plus, we can give patients the satisfaction of knowing we have professional coverage."

Yelverton said patients have the option to go elsewhere if they don't want to accept binding arbitration, since his group only accounts for six of about 20 OB/GYNs in Pinellas County and 40 percent of the specialists in Hillsborough County. But it's not always easy for women in the Tampa Bay area to find another provider.

Doctors with USF Physicians Group in Tampa don't have to deal with the arbitration issue because as employees of the University of South Florida, they are immune from civil lawsuits. But Dr. Cathy Lynch, a USF obstetrician, said she empathized with the dilemma of self-employed doctors.

"Insurance reimbursements are going down while costs are going up, so they've got to do something,' she said. "People are generally quicker to give a tip to their hairdresser than pay their co-pay."

Another large local medical group, Diagnostic Clinic in Largo, considered requiring patients to accept binding arbitration a couple of years ago but dropped the idea.

"We were not smart enough to figure out how to do it without creating more bad feelings from patients than it was worth,' said Dr. Charles Campbell, who heads the group which has 100 providers at two locations.

Instead, Diagnostic Clinic found another way to avoid the high cost of insuring doctors who deliver babies. But it's not one that will help women of child-bearing age.

"We just got out of the OB business," Campbell said.

Kris Hundley can be reached at hundley@sptimes.com or (727) 892-2996.

Lawyer held in criminal contempt

blog@www.oginski-law.com (news Author)4569 — Thu, 03 Apr 2008 08:00:00 EST

Lawyer held in criminal contempt

By Lawrence Buser (Contact)
Thursday, April 3, 2008

In a medical malpractice case last week, plaintiff's attorney R. Sadler Bailey repeatedly called defense attorneys liars and told the judge her rulings could "set a world record for error."

On Wednesday, Bailey was led from the courtroom in handcuffs after Circuit Court Judge Karen Williams held him in direct criminal contempt of court for those and other "unprofessional and inappropriate" remarks he has made over the two-year course of the case.

"Much time was wasted because Mr. Bailey could not discuss issues in this case in the courteous and controlled manner that is expected of all attorneys and officers of the court," said Williams, who declared a mistrial in the case last Thursday. "He made abusive remarks which the court considers to be discourteous to defense counsel and disrespectful to the judicial process as a whole."

In a courtroom crowded with some two dozen attorneys and deputies, Williams sentenced Bailey to 10 days in jail, but promised to suspend nine days if he participates in the Tennessee Lawyers Assistance Program, which helps lawyers with personal issues.

He was jailed, with bond set at $1,500.

Attorney Jake Erwin, who represented Bailey, argued that Williams should give him time to prepare a defense or to allow Bailey to address the court, but Williams denied the request and read her seven-page finding of fact, conclusions of law and pronouncement of sentence.

"Your honor, my client is not being given due process, and we object to the procedure," Erwin said. "I feel like we're in front of a train that can't be stopped."

Erwin said later he would file an immediate appeal with the Tennessee Court of Criminal Appeals.

Bailey, 50, who has practiced law for more than 30 years, is known for his aggressive style and was once ordered by another judge to take an anger management course.

John Hall of Atlanta, an attorney for the defense in the case before Williams, said he was appalled last week by Bailey's behavior.

"I have never in my life seen a lawyer speak with a judge in that manner, to tell you basically you can't get rulings right, criticize you, argue with you, demean you, belittle you and then turn around and do the same thing to us," Hall said, according to a trial transcript. "It is a strategy to be a bully. ... I get called a liar. You get called a fool, and it's just ridiculous."

Bailey said in an interview last week that he is an honest and ethical attorney who fights passionately and aggressively for his clients. He said that if he sometimes goes too far, it is only because he is trying to stand up for what is right.

The medical malpractice case involving a 9-year-old girl who has been severely handicapped since birth settled out of court after Williams granted the defense motion for a mistrial.

Under the law, criminal contempt includes acts disrespectful of the court or its processes that obstructs the administration of justice.

Direct contempt occurs in the presence of the court, as opposed to constructive contempt, which occurs outside of court and may include failure to abide by court orders.

Lawrence Buser: 529-2385

Staten Island jury holds Ford liable in fatal crash, awards $6.5M

blog@www.oginski-law.com (news Author)4538 — Fri, 28 Mar 2008 08:00:00 EST

Staten Island jury holds Ford liable in fatal crash, awards $6.5M

by Staten Island Advance
Thursday March 27, 2008, 8:12 PM

A Staten Island jury today awarded $6.5 million to the widow and estate of a Boy Scout leader from Mariners Harbor who was killed eight years ago when his Ford Explorer went out of control and rolled over on an upstate highway.

Steven Motelson's death was due to a defectively designed roof support system, determined a jury in the home port annex of state Supreme Court. Motelson was 60.

But the panel found Ford was not liable in the death of his 9-year-old grandson and the injuries suffered by two other family members in the horrific July 1, 2000, crash.

Gary Motelson, then 36, Steven Motelson's son, was a front-seat passenger. Gary Motelson's 9-year-old and 5-year-old sons were rear-seat passengers and were ejected along with a third rear-seat occupant. The jury said the two boys were not wearing seat belts.

Minutes after the verdict was announced, Elissa Motelson, the boys' mother, wailed in the courthouse lobby.

"They killed my son," she sobbed, as family members tried to console her.

Michael Motelson, another son of Steven Motelson and the administrator of his estate, shook his head after the verdict was read.

Outside court, he said the jury had vindicated his father, although he expressed disappointment at Ford's being found not responsible for the other death and injuries. The panel said Steven Motelson had not driven the SUV negligently.

"For the last eight years, Ford has been saying my father was responsible for the accident and for killing my nephew and himself," Michael Motelson said. "The jury said loud and clear that he's not responsible. They acknowledged this was the worst roof on the road today."

It was not immediately clear whether the verdict will be appealed.

Robert Cecala, a Ford lawyer, declined comment outside court.

Jurors were not immediately available for comment afterward.

The panel reached a verdict hours after Justice Joseph J. Maltese charged it at the end of the four-week trial. Both sides had offered reams of complex documents, data, experts' tests and videos into evidence.

The Motelsons sued Ford Motor Company, the SUV manufacturer; and Ford Motor Credit Company, the SUV owner and lessor.

Steven Motelson lost control of his 1998 Explorer while returning home from a Boy Scout trip upstate. The SUV flipped over nearly four times on Route 17 in Goshen, killing Motelson, fatally injuring his 9-year-old grandson and injuring the three other occupants.

The crash, about 75 miles northwest of Staten Island, occurred around 3:35 p.m. as the group returned from a Scouting camp-o-ree at Ten Mile River Scout Camps in Narrowsburg, N.Y.

The plaintiffs contended the SUV suddenly sped up and lost its brakes as Steven Motelson wrestled to regain control.

In his closing argument yesterday, J. Edward Bell III, a lawyer for the Motelsons, accused Ford of seeking profit over safety.

Steven Motelson was killed, he said, when the driver's side roof shredded on the first roll, exposing his head. To save pennies, Ford had shortened a metal support rod in the door that bolstered the roof, he charged.

Bell also said the SUV's speed-control cable and rear seat-belt system failed. Each defect could have been remedied with minor additions or enhancements that would have cost Ford a dollar or two. Ford, he said, was aware of those problems.

In his closing argument, Cecala, the Ford lawyer, said Steven Motelson's actions had set the deadly chain of events in motion.

Motelson, he alleged, wasn't paying attention, drifted off the road, and sent the vehicle careening when he overcompensated on the steering wheel trying to regain control.

He further contended that company tests and evidence showed the speed-control cable did not jam open; in that event, the SUV would have spontaneously accelerated. Additional tests showed the three rear-seat passengers could not have been wearing seat belts -- although two of the victims said they all were.

Cecala said the Explorer's construction exceeded federal standards and could not have prevented the deaths and injuries.

Jurors, however, found Ford negligent in the design, inspection and testing of the roof support system.

The panel awarded $5 million in economic loss to Enid Motelson, Steven Motelson's widow, and $1.5 million in damages to his estate.

"Clearly, [this is] a resounding verdict against Ford in regard to their weak roof structure," Bell, the plaintiffs' lawyer said outside court. "It killed Mr. Motelson and it will kill others if something isn't done about it."

-- Contributed by Frank Donnelly

After lawsuit, doc OK'd to work

blog@www.oginski-law.com (news Author)4517 — Tue, 25 Mar 2008 08:00:00 EST

After lawsuit, doc OK'd to work

By Lindsay Tice , Staff Writer

Tuesday, March 25, 2008

A New York jury has found a Lewiston neurosurgeon liable for a botched spinal surgery that left a New York man in a wheelchair.

Dr. Victor T. Ho was ordered to pay the former patient $7.9 million. Because the two sides reached a settlement agreement before the verdict, however, his actual payment is capped at $1.9 million.

Ho is a spinal, brain and neurovascular surgeon with New England Neurosurgery in Lewiston, with surgical privileges at St. Mary's Regional Medical Center and courtesy privileges at Central Maine Medical Center in Lewiston. At the time of the New York man's surgery in 2000, Ho was working for New York Methodist Hospital in Brooklyn.

Ho has been the subject of numerous malpractice suits in New York, most of which he's won. In 2005, New York regulators suspended his New York medical license for negligence involving a brain tumor biopsy, but then immediately stayed the suspension and placed him on probation for two years, according to that state's Administrative Review Board for Professional Medical Conduct.

During that probation, Ho received a valid Maine medical license and began working in Lewiston, according to state and hospital officials.

New England Neurosurgery is a private practice comprised of independent doctors who share the office space. St. Mary's Regional Medical Center spokesman Russ Donahue said his hospital knew Ho's New York license was on probation before it gave him hospital privileges.

"Dr. Ho was carefully credentialed through our medical staff and board procedure, as are all of our physicians. This was subject to state licensure, which he received," Donahue said.

Donahue said the hospital is still comfortable having Ho perform surgeries there, despite the recent malpractice verdict.

CMMC spokesman Randy Dustin did not know Monday whether that hospital had known about Ho's background in New York before it granted him the limited privileges of a courtesy staff member.

Through his office spokeswoman, Ho has declined to comment.

Lawsuits

According to the St. Mary's Web site, Ho graduated from Upstate Medical Center in Syracuse, N.Y., in 1976, did an internship at Albert Einstein College of Medicine in Bronx, N.Y., and completed his neurosurgery residency at New York University School of Medicine in New York, N.Y.

In 2000, Ho performed spinal surgery on Marcel Paul, a 60-year-old New York man, at New York Methodist Hospital. Shortly after the operation, Paul had trouble moving his left side and needed to use a wheelchair. A month later, according to Paul's lawyer, Ron Burke, another surgeon found Ho had used an undersized bone plug to stabilize Paul's neck. Among other problems, the plug had migrated and was pushing on his spinal cord.

"He was never able to walk again," Burke said.

Paul sued. After a two-week trial, the jury found Ho lacked informed consent from the patient before performing the surgery and had, among other things, failed to place the appropriate bone graft and failed to order the appropriate tests to determine why Paul had problems with his left side after surgery, Burke said.

Although Paul claimed Ho also failed to monitor his motor functions during surgery, the jury found Ho had monitored him correctly.

The jury awarded Paul $7.9 million. Because the two sides had reached a settlement agreement before the verdict, however, Ho will pay $1.9 million and will not appeal the decision, the judge in the case said.

Ho has been the defendant in at least six other malpractice suits, according to Burke. Ho won four of those outright and a fifth through appeal, Burke said.

The New York court system's Web site lists two other malpractice suits pending against Ho.

According to the American Association of Neurological Surgeons, neurosurgeons get sued, on average, once every 18 months to three years. In any given year, one-third of neurosurgeons will have a case pending against them.

Maine license

In 2005, New York disciplined Ho for simple negligence involving a patient with a brain lesion.

According to a 42-page report from the Administrative Review Board for Professional Medical Conduct, Ho biopsied the patient's brain lesion - an attempt to find out whether it was a tumor or a problem with blood vessels - but that biopsy didn't provide a diagnosis. After that biopsy, Ho failed to tell the patient there were additional ways to get a diagnosis, the board said. A month after the biopsy, the patient was unable to stand on her own and an MRI showed the lesion had grown so large that her brain was "significantly displaced" by it. Six weeks after the biopsy, Ho operated and found cancer.

The report said hearing committee members found no incompetence or gross negligence on Ho's part, but found simple negligence and deemed Ho "to be very arrogant, condescending and unwilling to own up to his mistakes." The report shows Ho was put on probation from March 2005 through March 2007.

Ho received a Maine medical license in November 2006.

Randal Manning, executive director of the Maine Board of Licensure in Medicine, said his board carefully examined Ho's application and interviewed Ho, who was "upfront and straightforward" about his probation in New York. Because New York found him guilty of simple negligence, not gross negligence, the board found no reason to deny him a Maine license.

Ho has not been disciplined in Maine and his license here remains valid.

Ho joined New England Neurosurgeon in December 2006 and received privileges at St. Mary's in January 2007, both while still on probation in New York.

CMMC's spokesman did not know when Ho had received courtesy privileges at the hospital or what those privileges allow him to do within the hospital. CMMC records show Ho has never performed surgery there.

6-Year-Old Dies Following Tragic Pool Accident

blog@www.oginski-law.com (news Author)4494 — Fri, 21 Mar 2008 08:00:00 EST

The young 6-year-old girl who was badly injured in a pool accident last June has died. Abigail Taylor passed away Thursday night at the Nebraska Medical Center in Omaha.

Abigail was injured back in June 29 when she was sitting in a wading pool in St. Louis.

Reports are that her parents were with her when she died.

The powerful suction of the drain ripped out part of her intestinal tract in an absolutely tragic accident.

The six-year-old has been in the hospital since December. She had to receive organ transplants to try and be cured of her medical troubles.

She ran into many complications though, as she had to go through several different surgical procedures. She also had to be fed through an intravenous tube.

In the beginning of March, she got the worst news yet when she had to begin chemotherapy. She developed cancer due to the organ transplants.

This story has sparked nationwide interest as many pushed for new safety standards to prevent further accidents.

In December, Congress approved legislation to ban drain covers that do not meet certain safety standards.

Minnesota lawmakers are also looking into new pool safety regulations on the state level.

It is a shame that something terrible has to happen before action is taken and safety regulations are put in place.

$21 Million Awarded in Queens for Car Crash Death

blog@www.oginski-law.com (news Author)4482 — Thu, 20 Mar 2008 08:00:00 EST

$21M FOR GIRL OF TRAGIC CRASH DAD

By IKIMULISA LIVINGSTON

March 13, 2008 -- A Queens jury awarded a 10-year-old girl more than $21 million after her father was killed in a fiery car crash caused by a doctor nearly five years ago.

Antionette Hawthorne-Stanton was barely 5 years old when her father, James Stanton, was killed in a car crash after being hit by minivan driven by a physician from Teaneck, NJ.

Stanton and his brother were both burned to death as flames engulfed the car.

"She was devastated. There was no more communication, no more hugs and kisses," said the girl's mother, Sheila Hawthorne. "She enjoyed being in his presence, and all that came to a screeching halt."

The Queens Supreme Court jury awarded Antionette $21.35 million - $10 million alone for pain and suffering - after finding Dr. Howard Antosofsky and the company from which he leased the minivan responsible for the crash.

The girl's lawyer, Evan Torgan, said Antionette got to hear from witnesses how much of a doting father Stanton was. "It was important for her to see who her father was, how much he loved her," he said. "And it was important for her to know he didn't abandon her."

$19 Million Awarded in Brain Damaged Baby Case

blog@www.oginski-law.com (news Author)4478 — Wed, 19 Mar 2008 08:00:00 EST

Monmouth jury awards $19 million to woman in malpractice case

(Published March 18, 2008)

FREEHOLD, N.J. — A jury has awarded more than $19 million to a Freehold woman whose 10-year-old son was born with severe brain damage and cerebral palsy.

A judge could reduce Monday's award since the jury found there was a chance the child would have suffered some harm anyway.

Bonnie Kowalski claimed that Dr. Aravind Palav didn't immediately notice her abdominal bleeding when she arrived at Riverview Medical Center in Red Bank, and didn't act promptly to deliver the baby by C-section.

Palav's attorney says he expects to appeal the verdict.

San Diego Woman Awarded $82.6 million award by Appeals Court

blog@www.oginski-law.com (news Author)4442 — Tue, 11 Mar 2008 08:00:00 EST

SAN DIEGO – An appeals court ruling upholding the $82.6 million in damages awarded to a San Diego woman paralyzed in a Ford Explorer rollover accident will be appealed to the California Supreme Court, an attorney said Tuesday.

"We plan to ask the California Supreme Court to review this case, and if need be, the U.S. Supreme Court," Ford Motor Co. attorney Theodore J. Boutrous Jr. said by telephone from Los Angeles.

The award, affirmed by the 4th District Court of Appeal in a 100-plus page decision, includes punitive damages of $55 million to Benetta Buell-Wilson, who lives in the San Diego neighborhood of Del Cerro. Her back was crushed in the accident on Interstate 8 near Alpine on June 19, 2002.

Dennis A. Schoville, Buell-Wilson's attorney, said Tuesday he was not surprised to hear of Ford's intention to appeal.

"That's been their intention all along, and they just don't get it," said Schoville, of San Diego. "... I believe that the Fourth District Court of Appeal opinion is bulletproof, and for good reason."

Ford has sought a new trial. The company does not believe punitive damages should be awarded, or at the very least, "they should be significantly reduced" in light of Supreme Court decisions limiting awards in state courts for punitive damages, Boutrous said Tuesday.

Buell-Wilson's suit alleged the Explorer's design was flawed because it had a high center of gravity and low wheelbase, making it prone to tip over, and a weak roof. It also alleged that Ford knew about the design flaws but did nothing to fix them.

A San Diego Superior Court jury in June 2004 awarded Buell-Wilson and her husband, Barry, $369 million, including $246 million in punitive damages.

It was the first verdict against Ford in an Explorer rollover case. The automaker had previously won at least a dozen similar cases.

Punitive damages are awarded to punish defendants and deter others from similar behavior.

"What Ford does not seem to want to admit is that there were direct findings of intention ... involving the conscious disregard for the safety of the public and victims like Mrs. Wilson, who are suffering by the thousands, and it's time for them to understand that they are being punished for intentional wrongful conduct," Schoville said.

San Diego Superior Court Judge Kevin A. Enright in August 2004 reduced the jury's award to $150 million, $75 million in compensatory damages and $75 million in punitive damages. Enright said evidence supported the jury's findings that the company knew of design defects, but did not correct them.

Ford appealed, and in July 2006, the 4th District Court of Appeal, while finding the automaker liable for Buell-Wilson's injuries, ruled the punitive damages were excessive and violated a state law's ban on awards that are the product of "passion or prejudice." The award was then cut to $82.6 million.

In an unexpected move in May 2007, the U.S. Supreme Court told the appeals court to re-examine its ruling in light of a Supreme Court decision several months earlier involving punitive damages against tobacco company Philip Morris.

In that case, the Supreme Court overturned $79.5 million in punitive damages against the company awarded to a smoker in Oregon. The court ruled that jurors might have improperly calculated the award based on harm the company caused to other smokers, not just than the man whose widow brought the case.

Boutrous said Tuesday that the appeals court's Monday decision "strongly contradicts" the U.S. Supreme Court's mandate in the Philip Morris case, "and in many other decisions."

He said the request for a new trial is based in part on Ford's contentions that the trial was unfair because the automaker was prohibited from presenting certain evidence of the truck's safety record, and that references to other Explorer rollover cases should not have been heard in the case.

Buell-Wilson was driving a 1997 Explorer westbound on Interstate 8 near Tavern Road about 5 p.m. when she swerved to avoid a metal object in the road.

The SUV went out of control when a passenger-side wheel lifted off the road. She fishtailed and rolled four and a half times. The SUV landed on its roof, crumpling the roof and crushing her back, paralyzing the then 49-year-old mother of two.

Schoville said Buell-Wilson uses a wheelchair and has had "a very difficult life" as a result of the accident.

"She is paralyzed at the mid-back level, and she lives daily with all of the pain above that level," he said. "She has major health issues related to her bodily functions, and she continues to live every day with courage for her family. This ruling is extremely important to her because she the wants the (court) decision to help other victims like herself."

Schoville said Buell-Wilson is cared for by her husband; a son who attends college but lives at home; and a daughter who is a college graduate who lives nearby.

"Mr. Wilson is an amazing husband," Schoville said. "I've never seen anyone in my 35 years of practice who is more devoted than he is. He takes care of her morning, noon, and night, and works (outside the home) as well."

San Diego Woman Awarded $82.6 million by Appeals Court

blog@www.oginski-law.com (news Author)4443 — Tue, 11 Mar 2008 08:00:00 EST