You needed an emergency cesearean section. The baby was having fetal distress and your obstetrician told you he had to get the baby out immediately.

Of course you said "Yes."

Immediately after birth, your baby is brought to you to hold. You immediately notice that the baby has a long laceration on his face and is bleeding from his face. You're astonished.

You ask "How did this happen?"

The delivery room nurse tells you that the baby's face was accidentally cut as they were trying to get the baby out urgently. She reassures you that the laceration will be fine and the baby will likely not have any scarring.

You are not so sure. You know that anytime someone gets a laceration it will leave a scar.

When the pediatrician comes to talk to you about the baby you ask the same exact question. “How did this injury to his face occur and what does this mean for the long-term?”

The pediatrician again minimizes the injury, even though it's clearly visible on his face. 

He tells you that a baby's skin heals very quickly and will likely not leave any visible scar. Again, you're not so sure.

You want to know whether cutting the baby's face during an emergency C-section is a departure from the baseline standard of care for an obstetrician. Obviously you want a beautiful healthy baby. Your concerned the baby will now be left with a permanent scar because of what might be carelessness when the doctors performed an emergency C-section.

In order to evaluate whether this was a departure from the baseline standard of obstetrical care, we need to look at the reason why you needed an emergency C-section. Then we need to determine whether this type of injury is a known recognized risk that can occur even in the best of medical hands.

To properly determine whether this type of injury represents medical carelessness that was below the standard of care, we are required to have a medical expert review the records and confirm that (1) There was wrongdoing,  (2) That the wrongdoing caused injury and (3) That the injury is significant and/or permanent. Without having a medical expert confirm each of those elements, we are prohibited from bringing a lawsuit in New York for medical malpractice.

There are two things your new attorney, attorney #2, will want to know.

1. What's the problem with attorney #1?
2. How much legal work has attorney #1 done in your case?

Oftentimes an injured victim who has selected an attorney and is unhappy usually has various reasons for their unhappiness. Maybe there is a clear lack of communication.

Maybe there are different strategies that you, the injured victim, want your attorney to take, and your attorney refuses.

Maybe there are other reasons.

Attorney #2 will want to know which of these problems is giving you the most aggravation leading you to call him. Switching attorneys is relatively simple and straightforward. You can do it at any time.

There are two additional things you need to know when you decide to switch lawyers.

1. If your attorney has spent money to investigate your case, he would then be entitled to receive and be reimbursed the money that he has paid up until the point you decided to go to attorney #2.
2. In addition, the attorney would also have a lien against whatever attorneys fees are generated if you are successful and obtain compensation in your lawsuit either through a settlement or a jury verdict.

What this really means is that there is only one attorney's fee in a medical malpractice case, negligence case or even a wrongful death case in New York.

If you are successful, you will be required to reimburse the attorney money that he has spent to prosecute your case and then you are required to pay him a fee in accordance with medical malpractice cases or negligence cases here in New York.

Since there is only one lawyer's fee, if attorney #2 decides to take over your case, he will then receive a fee, if you are successful, and then must split that fee with attorney #1. The exact percentage of which attorney gets how much of the lawyer's fee is something that the attorneys will work out on their own.

In some cases the attorneys are unable to reach an agreement based upon the amount of work each one has performed and the result they were able to accomplish. In that instance, the attorneys may have to fight their dispute in court and have the trial judge reach a decision about the percentage that each attorney is to receive for their legal fees.

As always, if you have legal questions I encourage you to pick up the phone and call me at 516-487-8207 or by e-mail at Gerry@Oginski-Law.com. I answer legal questions like yours every day and I welcome your call.

Don't forget the chandeliers! 

Don't forget the glass crystals that adorn the lawyer's desk.

Of course, you can't forget the desk. The $10,000 desk and the $2000 executive chair that the attorney regally sits behind, is of course very impressive.

Taking in these surroundings, you can't help but be impressed.

Here's a suggestion that may help you decide whether this type of attorney and his office is right for you.

Despite the wonderful furnishings and material possessions, you need to ask the attorney whether he will be the one who appears with you at your question and answer session known as a deposition. If not, who will be assigned to you in your case? Will you ever meet with or see this impressively dressed and impeccably tailored attorney again?

If this attorney is going to represent you at your deposition, you also need to ask him whether he will be the one to try your case if it goes all the way to trial. There are some law firms who assign different attorneys to different cases depending upon their availability. In other law firms, one attorney stays with the case from start to finish.

In some of the larger law firms you will notice that the attorney who meets with you initially is not the same one who appears with you at your deposition. Nor will the attorney who appears at your deposition be the same one who will be your trial attorney. This can be very disconcerting for some clients. For others, it's a way of life and they are only interested in the fancy furnishings and what the firm has done in the past to obtain those beautiful furnishings.

The key question you need to ask yourself is "Which law firm is right for you?"

Who will be the attorney who handles your day-to-day questions?

Will it be a case manager who is not even an attorney?

Will it be a paralegal? Will it be a junior associate?

There are pros and cons to each one of these questions.

The important thing for you to consider is that you ask these questions so that you can make an educated decision about whether this lawyer and his law firm is right for you.

He had a beautiful office. He was dressed magnificently. His shoes were so shiny that you could see your reflection in them.

By the end of the one-hour consultation the attorney stood up and said “Your case is worth millions! All you need to do is sign this retainer to get started and we will have you on your way.”

If you overhear an attorney in New York guarantee that your case is worth millions of dollars, ask him how he can know that. Ask him how he can evaluate the full value of your case if he has not done any investigation whatsoever on your matter.

Ask the attorney who guarantees that your case is worth a specific amount of money to put that promise in writing. Watch what happens.

Did you know that no attorney in New York can ever guarantee a particular result? It's simply impossible. Even if the attorney has handled many cases identical to the one you have and has experience handling these exact types of cases, even then he is not permitted to promise or guarantee that he can get the same result that he got in prior cases.

There are many reasons for that. Your particular case may have certain issues that could alter the value of your case.

There are some attorneys who make outrageous statements like this in order to entice you to simply sign up with that lawyer or law firm.

If the attorney is unable to achieve the type of result he had promised initially, I can pretty much guarantee you will be extremely unhappy at the end of your case.

Why do I share this information with you?

So that you will be aware of what to look for in the event an attorney promises or guarantees you a particular result in your particular matter.

She was upset I wouldn’t meet with her. She was upset I didn’t think she had a significant injury. She was upset that not only wouldn’t I take her case, but that I told her why.

Let me tell you about “Mrs. Jones.”

She knew it all. She was demanding. She knew everything. She knew she was right, no matter what I said.

I knew within 20 seconds of talking to her that I would never accept her as a client. It’s a gut feeling I got. I’ve been doing this now for almost 25 years and I speak to many new potential clients every week.

I always ask my new potential callers two questions that gives me key information about whether this is something I’m interested in looking into.

Here are the two questions:

“What do you think was done wrong,” and
“What injury did you suffer as a result of that wrongdoing?”

This is how she started to answer...

“Let me tell you this story about what happened to me...it’s a long one, so here we go...”

“Stop,” I interrupted her before she uttered 5 words.

She wouldn’t stop.

“Stop,” I said more forcefully.

Still, she didn’t stop. She had a story to tell and no matter what, she was going to tell it.

You should know that before she got on the phone with me, my secretary had told her, as she tells all new callers, that this initial call is just a brief screening call. It is not an opportunity for you to tell me everything that happened.

I just need some key information. If I need to follow up, I will.

I took a breath and said forcefully, “Mrs. Jones, STOP TALKING. I’m trying to help you.”

“But I need you to know everything that went on,” she said.

“Not yet. This is just a screening call. A few minutes at most. Just tell me in two sentences what YOU think was done wrong and what injuries you suffered as a result of that,” I said.

Silence.

“Mrs. Jones, are you there?”

“So let me continue when you so rudely interrupted me...you see I went to pick up my medicine from...”

“STOP. Can you answer MY question, Mrs. Jones?”

We had a clear communication gap.

She didn’t want to listen. She just wanted to talk. I get that. I understand that. If I permitted her to talk, she would have given me an hour long narrative that wouldn’t help me one bit.

If she answered my 2 questions as best she could, I might have been able to help her. The problem was that she didn’t want help. She didn’t want to be told what to do. She didn’t want guidance. She wanted revenge. She wanted to take over and run how her case was going to be evaluated and handled.

I knew immediately I would never work with her.

She was not my ideal client and I knew it right away.

When I told her I couldn’t help her, she became very defensive and upset.

Demanding in fact. Obnoxious.

“What do YOU MEAN YOU WON’T TAKE MY CASE? How could you NOT take my case?”

“I’m telling you I have a great case. Any attorney would drop what they were doing and immediately take my case. I’M TELLING YOU I HAVE A MILLION DOLLAR CASE!”

I wished her good luck despite the fact that she was demanding and felt she had the best case in the world. I secretly felt bad for the next attorney who dared to take her case. It would be misery for him for the next two to three years.

One day when visiting his friend in the hospital he asked whether he's going to bring a lawsuit. His friend said he would probably bring a lawsuit and he thinks he found the right attorney for him. “Really? Where did you find this lawyer?”

“I found him online. He looks really good.”

"You can't be serious! How can you hire an attorney just from a website you found online? How can you trust him? How do you know if he is the right one for you?”

The injured victim said he spent a lot of time online searching for an attorney. He wanted to find someone who was really good and has handled cases like these before. He wanted someone who was confident, someone who knew what they were doing and someone he would feel comfortable with.

“Well, have you come to the conclusion that this person is confident and someone you could feel comfortable with?”

“I spent hours searching online. I found lots of lawyer websites that did nothing except beat their chests and proclaim how amazing they were. I found others that tried to show how sincere they were. Others focused on the results. Still others used a lot of the clichéd phrases that most people are tired of hearing-injured? 'In an accident? We can help. We handle accident cases all the time. We get great results. We care'.

“One of the things I found particularly helpful were the articles and videos on this lawyer's website. He took the time to actually explain how this type of lawsuit works. I didn't know that before. He took the time to show what he does to evaluate a car accident case. He took the time to explain how a New York lawsuit is investigated and how he comes to a decision about whether or not to accept the case.

I read a fascinating article he wrote that said when I call him it's as if I am applying for job. According to the article, he's the one who's actually deciding whether to take me on as a client even though I am the one searching for him!

This lawyer described who his ideal client was in one of his videos. When listening to him, I realized that I fit into all of his categories and that I am his ideal client.

I watched more than 20 videos he created. He actually had hundreds of videos online. These videos were short, educational and told me things I did not know. He showed me that he has a clear knowledge and expertise about car accident law. He explained how an insurance adjuster who evaluates your case has an agenda that is totally different than mine.

He explained jury selection and how trials work. There were things he talked about when preparing for trial, behind the scenes, that I had no idea actually occurred.

He was straightforward, knowledgeable and eager to share his experience with me, a viewer in search for this information.

There was no question that after watching his videos and reading his articles that he was the right one for me. The only question now is whether I'm the right one for him.”

Most of the people who call do not have a valid basis for a medical malpractice case here in New York. That's it. Plain and simple.

Well, not so simple. You see, before I can come to any conclusion about whether there is, or isn't a valid basis for a case I must do a thorough investigation.

That includes meeting with you at length. That includes requesting all of your medical records. That includs reading and deciphering all of your medical records. That includes sending your medical records to a qualified board certified medical expert for evaluation.

That basic investigation can take many months to complete. It can also cost me many thousands of dollars to accumulate all of your medical records and the fees for my medical experts.

I undertake that effort only if I believe there may be something here to work with and only if you are my ideal client. If not, then I will, gracefully and politely, tell you I cannot help you and suggest you consult with another attorney immediately.

Experienced trial lawyers who handle medical malpractice cases in New York, like me, must be selective in the cases they investigate and prosecute. Let me give you a real-life example of what I mean.

Out of 100 people who call my office, I may invite only 1 or 2 into my office for an in-depth consultation. After doing a full and thorough investigation, I may accept only 1/3 of those as a client who has a valid basis for a case. That is an extremely small percentage of callers.

In addition, unlike in a car accident or negligence case here in NY, I am required by law to get a medical expert to confirm that you have a valid case before starting a medical malpractice lawsuit.

The reality is that I love talking to people on the telephone to see if I can help them with their legal problem. If I can, excellent. If I can't, sometimes I may be able to refer an injured victim to another attorney who might be able to help.

As always, if you have legal questions, then I encourage you to pick up the phone and call. I welcome your call and this is what I do every single day. You can reach me at 516-487-8207.

I hope you have a great day!

Gerry

There are many benefits associated with this type of surgery compared to having an open surgical procedure known as a laparotomy. One of the major benefits include the fact that there are small incisions made in your body as well as a shortened recovery time.

When undergoing an open laparotomy, there is much more trauma to the body and the likely need for more hospitalization and recuperation. We doing laparoscopic surgery, doctors use fiber optic tools in order to visualize your internal organs and then use specially designed instruments that are inserted into the small incisions, known as ports, in order to perform the surgery.

One of the risks associated with the performance of laparoscopic GYN surgery is an injury that can occur when a needle is inserted into your belly in order to inflate it. Insertion of this needle is technically a blind procedure. There have been instances where a doctor has punctured an artery or vein upon inserting the needle and even has perforated the bowel. If this were to occur, it is incumbent upon the surgeon to recognize that an injury has occurred immediately upon entering the belly.

While typically happens is that after the needle is inserted into your belly and gas is inserted into the abdomen to inflate it, a fiber-optic video camera is then inserted into one of the side ports. The doctor will look around to make sure everything is stable. Other instruments will then be inserted into other ports to begin the surgical procedure.

Before completing the surgical procedure and removing all instruments, the surgeon will explore the abdominal cavity again using the fiber-optic video camera to look for any defects or problems that may have occurred during the course of surgery.

Our medical experts tell us that injuries can occur upon insertion of a needle when beginning laparoscopic GYN surgery. If the surgeon fails to timely recognize and treat that injury, that can rise to the level of medical carelessness, also known as medical negligence or medical malpractice.

That’s exactly what they did.

The surgery went well. Post-operatively nobody put him back on his blood thinners. In the days leading up to the surgery while he was in the hospital his doctor was watching his INR levels. That checks to see how effective the blood thinner is working.

His levels were good prior to surgery.

By the way, in case you don’t know, blood thinning medication is given to patients who are at risk for developing a blood clot. By thinning out the blood, it reduces the likelihood of the blood clotting, creating a life-threatening collection of blood that clogs off a vein or artery.

Getting back to this patient, while he is in the hospital recuperating following his surgery, his INR levels become abnormal. His doctor fails to recognize this. 

Unfortunately for the patient, he no longer had the coumadin working in his blood system. That meant he had a significant risk of developing a blood clot. The problem was that no doctor caring for him picked up on this important fact.

One evening, days after the surgery, the patient was found dead in his room. Nobody could explain why he died. The surgery was successful. He had no obvious problem prior to his sudden death.

His death warranted an autopsy. In case you are unaware, an autopsy is a procedure done by a doctor known as a medical examiner or a pathologist. They examine the entire body with the goal being to try and identify why the patient died.

It was not until an autopsy was done that the patient’s cause of death was revealed.

Examining the lungs during the autopsy revealed a massive blood clot to the lungs. This particular blood clot was known as a “Saddle embolus.”

One of his surviving sons thought nothing of this, until he had a conversation with me.

The interesting thing about this conversation was how it happened.

I HAD A COMPUTER PROBLEM

I was having a computer problem. My computer was not talking to my secretary’s computer. I couldn’t figure out why. I finally decided to get a trusted recommendation for a computer expert to come in and diagnose my problem.

This computer expert came to my office and began working on my computer. While he’s diagnosing the problem and fixing it, we started talking. He didn’t know what I did. I explained that I help get injured victims compensation for injuries caused by wrongdoing of a doctor or hospital.

That’s what triggered his story about his dad. 

I told him that it was unusual for the doctor and hospital not to have put his dad back on the blood thinner. He asked me if I could look into his dad’s matter. I said “Sure.”

Turns out, after getting all of dad’s medical records and reviewing them as well as having a urology expert review them, did I learn he had a valid medical malpractice case.

At the son’s request, I proceeded forward with a lawsuit in behalf of his family.

During the course of the lawsuit I had an opportunity to question dad’s urological surgeon; the one who performed the surgery and followed him in the hospital after his surgery.

I was able to get dad’s urologist to finally admit that dad should have been put back on blood thinners immediately after his surgery. This doctor actually admitted that if dad had been put back on the blood thinners after the surgery, in all likelihood, he would not have developed this massive pulmonary saddle embolus and would be alive today.

Once I had that testimony, it was only a matter of time before the defense agreed to settle this case.

Not a very comforting statement.

The pool is very inviting. All of your kids know how to swim and you, as a good parent, plan on watching them like a hawk.

But what about those parents who are not as watchful?

What happens if, God forbid, something bad happens at a resort and there was no lifeguard on duty, during normal business hours?

In order to porperly evaluate this scenario there are many things that we need to know.

• Who was watching the kids?
• Where was the adult while the kids were swimming?
• Did everyone know that there was no lifeguard?
• What was the swimming level of each kid?
• Was the area well lit?
• Were there hazards nearby?
• Was the pool open to all guests?
• Were there signs posted about the risk of swimming without a lifeguard?
• Were there any toys in the pool?
• Were there any toys around the pool deck?
• Was there a fence surrounding the pool?
• Did you need a room card to access the pool area?

The reality is that there are instances where a hotel or resort MAY be responsible for injuries that occur in and around a pool even though there are signs warning "No Lifeguard on Duty!"

Each incident needs to be investigated to know for sure whether there is liability and responsibility on the part of the hotel or resort.

I am looking for my ideal client. Are you the right one for me?

For many years I have tried to find my ideal client. At times I have found the right one. Other times I haven't. On the occassions when I have mistaken my ideal client for someone who isn't, I have been very unhappy.

Usually an attorney will advertise their services and tell you how great he and his law firm is. Maybe he will teach you something before you ever meet him. Maybe you will see his advertisements on TV, radio, newspapers, magazines, online, on the back of buses and billboards.

He's always promoting himself.

Have you ever seen an attorney advertise for his ideal client? I've been doing this for 24+ years and have never seen this done. Well, I'm doing it now.

Here's what I'm looking for...

My ideal client is someone who suffered significant injury as a result of wrongdoing by a doctor or hospital here in New York.

My ideal client is someone who has an open mind and is willing to listen to an experienced trial attorney.

My ideal client is someone who does not argue with me, but instead asks questions seeking information to make them a better informed consumer.

My ideal client is someone who does not restrict me with what I can and can't do in their lawsuit. (I have had clients tell me they didn't want me talking to my adversary and didn't want me to exchange certain documents that we were required to exchange.)

My ideal client is someone who recognizes I have good advice and that I'm here trying to help them recover the most compensation possible.

My ideal client is someone who is polite to me and my secretary.

My ideal client is someone who is responsive to our requests for documents and information.

My ideal client is someone who is not focused solely on their lawsuit, but rather is focused on improving their life and trying to get back to normal as much as possible.

To be honest, these are my basic requirements. It's not much to ask for in an ideal client, don't you think?

Want to know why I'm looking for my ideal client?

Having ideal clients make the practice of law really enjoyable. It makes it fun. It makes it worthwhile knowing I can help you with your legal problem. It makes coming to work something to look forward to. There are plenty of miserable clients and attorneys out there who wish they had ideal clients and attorneys. My goal is to match up my ideal clients with my legal services. If we're a fit, excellent! If not, I wish you the best of luck.

Not everyone can be my ideal client. Do you think you have what it takes to be my ideal client?

To apply to become my ideal client I make it really simple.

Pick up the phone and dial 516-487-8207. Ask my secretary Frances to set up a phone consult with me and tell me why you think you're my ideal client. I'd love to know!

There are usually two reasons:

1. The patient never learns that what the doctor did was malpractice. They never realize that their complication or injury was from medical errors, and
2. The time limit to file a lawsuit seeking compensation is gone.

Let me share with you what I mean.

In my 24 years of experience as of the time I'm writing this, these are the two most common reasons I see. Think about this...

If a doctor screws up and causes you harm, do you think he's going to come right out and tell you he screwed up? Do you think he's going to tell you "Mrs. Jones, I just want you to know that I committed medical malpractice on you during your surgery and that's why you're in such a bad condition now..."

It doesn't happen. In fact, I have never seen that happen in all my years of practice.

Since the doctor will usually not disclose a medical error or mistake to the patient, the patient may never know that the problems they have were caused because of some departures from good and accepted medical care. If the doctor has a great relationship with the patient, the patient may very well excuse the doctor from any complications or problems they suffer and chalk it up to 'bad luck'.

Another reason a doctor may get away with medical neglience and not be held accountable for those mistakes is when the patient finally realizes, too late, that they have a valid basis to bring a lawsuit in New York.

Unfortunately for the patient, if he realizes this too late, there is no way any attorney can help. Once the statute of limitations has expired, it doesn't matter how bad the wrongdoing was or what type of injuries you suffered...even death. The dreaded time limits can and sometimes do protect the doctor from taking financial responsibility for your injuries.

You might think that the client is the only one who can fire the attorney. Well actually the reverse is also true. The attorney can actually fire the client. However the mechanics of doing that are much more involved than when the client fires the attorney.

Let's say that a client has hired a personal injury attorney to represent them in their accident case here in New York. If during the course of litigation the client is somehow dissatisfied and wants to hire another attorney, it's a simple enough process to fire the attorney you currently have and take your file to the next lawyer.

What if instead, you think that things are going along well and one day the attorney calls you up and says he can no longer represent you? It's not as simple as him throwing his hands up in the air, giving you a piece of paper that says you are no longer his client, and you go elsewhere.

Let me explain how it works.

An attorney can withdraw from a medical malpractice case, an accident case and even a wrongful death case. Some of the reasons an attorney might want to withdraw from a case would involve a client who lies to the attorney, or significant personality differences that prevent the attorney from using his best judgment about what to do next in the case.

There have been instances where demanding clients have tried to direct what happens on a case and literally tie the attorney's hands and prevents him from doing what he is supposed to do. In other cases it may be impossible to retain the necessary experts to support your claim and as a result the attorney would have no choice but to withdraw since you can ethically not proceed forward without an expert.

In order for an attorney to be relieved from your case, he must file a written request with the court, known as a motion, that gives the client an opportunity to be heard before the judge handling the case. As long as the case is not on for trial or in the middle of trial, it is likely that the judge who is supervising the lawsuit will permit the attorney to withdraw.

As part of the order that allows the lawyer to withdraw from your case, the judge will give the client a certain period of time in which to find a new lawyer to represent him.

Many people mistakenly believe that once they hire a lawyer, the lawyer must do everything that the client says. If there are significant disagreements between counsel and client and those differences cannot be corrected, the attorney may have no choice but to withdraw as counsel.

Although the attorney will never use words such as "I'm firing my client," the practical reality is that when an attorney withdraws from your case, that's really what it means.

There are specific requirements about what each side must disclose once they have retained various experts who are coming into court to testify. In a medical malpractice case in New York, one of the requirements is that the defense must tell us the credentials of their expert. They must tell us (1) where they went to medical school, (2) where they did their residency training, (3) if they are fellowship trained and (4) in what state they are licensed. They are also required to tell us whether they are board-certified.

In addition, they're required to provide the dates that this expert completed each of their training events.

What happens if they fail to include that information in their disclosure to us?

At trial we can object and ask that the witness be prevented from testifying. We ask the court to preclude the expert from giving testimony because we were not provided with the correct information that would have allowed us to investigate and prepare for cross-examination.

The reality is that when we obtain expert witness information, we plug it into a computer program to identify who the expert is.

Why do we do that?

We do that to identify what testimony the expert has given in the past and if there is any dirt associated with this expert.

If we are not given the dates when the expert completed their training, that will make it very difficult to correctly identify who the expert is.

It will then be up to the judge to determine whether or not to allow this expert to testify.

Not only does this question-and-answer session allow me the opportunity to find out from the witness what they did and why, but it locks them into their answers. This will be very important down the road when their case comes up for trial.

As a case approaches trial, a witness will often spend considerable time preparing for trial with their attorney. There may be instances where a witness or the person who has been sued, known as a defendant, may want to change their answer. They may not agree with the answer they gave during their pretrial testimony.

At trial, I will have an opportunity to question the same witness and ask the same questions. If the witness deviates from the answers they gave during their pretrial testimony, I can then use it to show that there are clear inconsistencies between the testimony they gave years earlier at their pretrial deposition compared to the testimony they are giving now at trial. This can have a significant effect on the witness's credibility.

A witness who is attempting to change their answer will likely give an excuse about why they are changing it. This simply provides more ammunition to show to the jury that there may be a credibility problem here.

We are permitted to use the pretrial testimony during trial to show to the witness and to the jury that when they were asked the same questions, the witness gave totally different answers. We can then explore the motive and reasoning about why the witness has changed their answers during closing argument.

Evidently, despite the strict protocols, checklists and procedures established to prevent such mistakes, terrible errors such as leaving surgical instruments in people’s bodies and operating on a wrong patient still prevail to a disturbing degree. The data also paints a picture where age of the surgeon is not necessarily a factor in frequency of mistakes, although it is important to note that surgeons over 60 years old made the fewest mistakes.

Ask any reputable surgeon and you’ll be delighted to hear that such “never events” are unacceptable in the medical community. However, if such events are unacceptable, a question begs to be asked: why do these things still happen? If age and experience of a surgeon is not a factor in malpractice, why do so many mistakes occur?

Despite universal protocols such as the pre-procedure verification, marking of the procedure site and identification of the patient by all present staff, something is still amiss. Surgical tools and other objects left in the patient’s body are on the rise every year. It seems as though the protocols established by the Joint Commission are just not good enough.

The harsh reality is that humans make mistakes. When those mistakes are responsible for injuries following up treatments that are supposed to make people feel better, instead end up leaving them scarred for life, something has to be done differently. For example: companies in charge of large volume of product sales such as Amazon create fail-proof environments by thinking up any kind of failure imaginable and implementing solutions to prevent such failures. A similar approach can be adapted by the safety guidelines agency:  think of every possible mistake scenario and devise a fail-proof, human-proof method to prevent it from happening. After all, human lives are more important than money.

Speaking of money, did you know that an average liability payout in a surgery mistake case is close to $130,000? This may strike you as a large chunk of money if you’re just reading while on your lunch break. However, to people who are involved in these types of malpractice injuries, this measly amount can never make up for the lost enjoyment of life’s pleasures.

Nevertheless, victims require assistance of medical malpractice advocates such as Gerald Oginski to be compensated for additional incurred costs and distress. Furthermore, the work of malpractice attorneys is crucial in putting pressure on surgeons and their safety procedures in order to improve the standard of care owed to patients. Without patient advocacy, we will continue reading frightening data on frequency of surgical errors rather than seeing actual improvements in safety procedures that are so crucial to a patient’s successful procedure and long-term health.

This post was written by Gene Maryushenko who works with personal injury attorneys Fisher & Talwar in Los Angeles, California. 

Nothing could be further from the truth.

There are some medical malpractice attorney offices in New York that will allow you to talk at great length during your first telephone interaction with their office. I am not one of those attorneys.

In fact, the very first telephone call you make to my office will be to schedule a telephone consultation with me.

When you speak my secretary, the first thing she's going to ask you is who referred you to my office. There's a very specific reason for doing that. She wants to know who was kind enough to send you to me. We get lots of callers who are referred by friends, colleagues and former clients. It's important for me to acknowledge their thoughtfulness with a note or letter thanking them for sending you to me.

If you saw me online, my secretary will ask you where you found me, whether my website, an article, blog posts, the hundreds of videos I created or something else online.

She will then ask whether your matter happened here in the state of New York. Again, there is a very important reason for asking this question.

Since I only practice law in the state of New York, if your matter happened in another state, I would be unable to help you and could not answer any of your legal questions. However, it may be a great opportunity for me to refer you to a trusted attorney in another state.

Her next question will be to ask what type of matter you are calling about. Does it involve medical malpractice, a car accident or a wrongful death matter? This will give me an idea of what type of case you are calling about.

Then, she will schedule your telephone consultation with me at your earliest convenience.

Once your phone consultation has been confirmed she is then going to ask you whether you would like to receive one of my free books instantly by email. I have four educational books that I wrote specifically for consumers about medical malpractice, accidents and wrongful death matters. My clients and consumers love the opportunity to learn how these types of cases work by reading my Free educational books.

Finally, she will ask you whether you would like to receive our monthly fun and educational newsletter.

During our scheduled phone consultation you should be prepared to answer the following two questions:

1. What do you think was done wrong? and

2. What injury did you suffer as a result of that wrongdoing?

Literally, I only need two sentences from you to answer those two questions. If I need additional details, I will ask them.

Our telephone consultation is simply a screening call. It is not an opportunity for you to tell me every detail about what happened to you.

If after talking with you for a few minutes I determine that this is the type of case I would like to learn more about, then I will schedule an in-office appointment with you so that we can have a detailed and thorough discussion about all the details. I will then proceed forward with a complete and thorough investigation to evaluate your potential matter.

Your initial call with me is simply a brief screening call that should last no more than 2-3 minutes.

Every person experiences pain differently. A young person's disabilities will certainly be different than an elderly person's disabilities. At the end of a trial, jurors are asked to use their common sense and their life experience to evaluate the value of someone's injuries.

According to the article, a limit on the maximum amount of money an injured victim could recover was proposed at $350,000. That limitation was struck down by the Missouri Supreme Court.

In New York, there have been frequent attempts to limit the amount of money injured victims can recover, and thankfully that has never truly gain traction here.

What I find most amazing about the proposal coming out of Missouri is that it fails to consider the injured victim. Instead, it focuses primarily on the people who are being sued and corporations that employ those doctors and healthcare professionals. Unbelievable.

Here's why it appears to take so long.

The first step is to get all the details of what happened to you. We do that during your initial consultation. That will typically take one hour.

During that office visit, I will need to know what doctors you have seen over the past few years. It is important not only to obtain your medical records from the doctor who you believe cause you harm, but also from other doctors you have seen over the years.

That is why obtaining your medical history during this office visit is critical. There may be something in your past or in other treating doctor's records that help us understand what was going on and what happened.

In order to get copies of your medical records, you must sign two documents.

The first is known as a HIPPA authorization, which really is a permission slip where you give me permission to go ahead and get copies of your medical records. The second is a limited power of attorney that also gives me permission to get your medical records.

Some hospitals require this limited power of attorney form and the authorization form together before releasing copies of your records.

We prepare a cover letter together with the permission slips and send it on to your doctors.

The doctor's office(s) and hospitals then pull your record and determine how many pages are in it. Based upon the number of pages, they will then ask us to pay copying costs at $.75 per page. They send us either a letter or a fax requesting payment for copying costs.

We then send out a check to the doctor's office for the copying costs, and then a short while later expect to receive the copied records in my office.

Once all the records have been received, I then proceed to go through every single page of every record to familiarize myself with what they wrote and what happened. I then must contact an experienced physician to see if they'd be interested in reviewing your case and evaluating whether the treatment was appropriate.

Once a medical expert has agreed to review your case, your records have to be copied again, and this set of records must now be forwarded to the expert for medical review. Depending upon how busy this doctor is, it could be weeks before we get his evaluation of whether the treatment rendered was appropriate.

After he has fully evaluated your case, he will call me to discuss his opinions and conclusions about your matter.

Only after discussing the case with the medical expert can I come back and let you know whether you have a valid medical malpractice case here in New York.

This is the process that occurs with every lawyer in New York who handles medical malpractice cases. This process can take weeks-months depending upon how many medical records we need to obtain and how busy any one of the medical experts are to review your records.

Now you know the mechanics of how an experienced medical malpractice trial lawyer evaluates a case like your and why many perceive that it takes a long time to get a case evaluated.

Even though the case may sound great initially on the phone or during our office consultation, I must have a medical expert confirm all three of those elements.

In order to do that, I must obtain all of your medical records, then personally review them and forward all those records to my medical expert for evaluation.

You may feel very strongly that you have a valid case. You may believe that all of the injuries you are suffering from arise out of improper medical care that you received. You may be right.

However, before we are permitted to go forward and file a lawsuit on your behalf, we must get confirmation from a qualified medical expert.

There have been many instances where a potential client has felt very strongly that they had a valid case and made a very compelling argument about why their injuries were caused by improper care and treatment. However, there have also been many instances where the medical expert has not been able to confirm that the wrongdoing occurred and as a result, I have had to turn away those potential cases.

A POTENTIAL EYE CASE

Not long ago, I met with a woman who suffered blindness in one eye as a result of, she claimed, improper medical care by her eye doctor. Her story was her compelling. It was very convincing. After inviting her in and obtaining all of her medical records, I forwarded her records to a qualified ophthalmologist for evaluation.

I thought there was a definite case here. My expert ophthalmologist proved me wrong. He explained to me step by step why there was no basis for a case despite the fact that the patient suffered a horrible injury and will be permanently blind in one eye.