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"Do You Have a PHYSICAL Injury?" I Asked. She Said "What Do You Mean a 'Physical Injury'?" Learn Why You NEED to Show You Suffered a Physical Injury in a Medical Malpractice Case.

She wanted to know if she had a valid case.

She wanted to sue her doctor.

For medical malpractice.

She used to love her doctor.

She thought he was the best.

She thought he could do no wrong.

She had been going to him for years.

Never had a problem.

He told her this would be a simple routine procedure.

She believed him.

She never went for a second opinion.

She agreed to have the surgery.

He never told her about any significant risks associated with this surgical procedure.

Looking back now, she wonders whether she would have proceeded forward if he had disclosed all these risks.

After the surgery, she was in pain.

The pain was unbearable.

It hurt to move in bed.

She was hoping to speak to the doctor after her surgery.

He didn't show up.

Instead, he sent his partner.

The next day she was hoping to speak to her surgeon.

Again, he never showed up.

He sent his associate.

The next day, she was hoping to finally speak to her doctor.

She learned he left for vacation.

For two weeks in the Caribbean.

He sent his partner to check in on her each day.

She was disappointed.

Disappointed that the doctor never came to visit her to ask how she was doing.

The nurses didn't come when she pressed the call button.

She felt slighted.

She perceived that the hospital staff was not paying attention to her.

She perceived that her surgeon abandoned her and ignored her.

She had a history of depression.

She also had a history of psychological problems requiring medication.

She was overly needy and always seeking reassurance.

She failed to get reassurance from the hospital staff or her treating doctor.

She went home on postoperative day three.

She was told to return to the office in one week.

She was hoping to see her surgeon for a follow-up visit.

When she arrived, she was again disappointed to learn that he had still not returned from vacation.

All these perceived injustices continued to build.

Like little bricks piling on top of the other.

Approximately 2 weeks after her surgery, a nurse from her surgeon's office called with the pathology results.

The nurse told her she needed to come into the office to talk to her doctor about the results.

The patient loses it and begins crying on the telephone.

Feeling sympathetic, the nurse reveals her pathology shows she has cancer.

The patient refuses to come in and speak with her surgeon's partner.

Her own doctor has no spots available for consultation.

Even in light of this cancer finding.

She's fed up.

She's had enough.

She never wants to go back to these doctors again.

She is so angry that she wants to bring a lawsuit against her doctor.

She believes her doctor was careless.

She believes her doctor's carelessness caused her harm.

Psychological harm.

Emotional harm.

She wants him to pay for that emotional harm for those perceived injustices.

She calls me to ask whether she has a valid medical malpractice case here in New York.

When she calls, I asked her four questions.

The answers will help me determine whether her case is timely and whether this is something I would be interested in looking into.

The first question I ask her is "Did this happen to you or a family member?"

She says “It happened to me.”

"When did this happen?”

"Three months ago," she says.

“Where did this happen?” I ask.

"At a private hospital in New York City," she responds.

That tells me that her matter is still timely.

The next question I ask her is "What physical injury did you receive as a result of the wrongdoing?"

She said “physical injury? What do you mean?”

I thought my question was very specific.

I now had to explain.

“Physical injury means that you had some type of injury or damage to your body. Some type of physical trauma. Something where you are disabled and limits you or prevents you from doing your daily activities.”

She said “Yes, of course I have physical injuries. He made me feel bad. He made my depression worse. He abandoned me. He didn't return my phone calls. The hospital staff didn't listen to me either.”

I knew immediately that I would be unable to help her.

From her brief description, she had no physical injury.

She had no permanent injury.

She had no disabling injury.

She had no physical limitations as a result of anything that was done or not done to her during her surgical procedure.

It was clear that there was nothing her surgeon or the hospital staff did that caused this woman to suffer any type of physical injury.

Her perceived injuries were psychological.

Her perceived injuries were emotional.

The “injuries” that she talked about were slights and perceived injustices.

Let me stop for a moment.

You should know that in these malpractice cases, in order to show that you have a valid case, we need to show that

  1. Your doctor was careless,
  2. His carelessness was a cause of your injury, and
  3. Your injury is significant and/or permanent

All of those three things must be confirmed by a medical expert who has either reviewed all your records or has treated you.

Only after our medical expert has confirmed you have a valid case are we permitted to go forward with a lawsuit on your behalf.

In this case, the injured patient had no physical injury.

She only had psychological and emotional injuries.

That doesn't mean she doesn't have a valid case.

It just means that I will not take on a case that does not have physical injury.

You will find that the best trial attorneys want to know whether an injured patient suffered significant or permanent physical injury.

Keep in mind there are some attorneys in New York who will take cases that only have psychological and emotional damages.

I am not one of them.

There's a key reason for that.

It's very challenging to show to a jury that the emotional damages the patient is experiencing now is distinct and separate from the problems that they had before the injustice occurred.

All these perceived injuries are in the patients' own mind.

A jury can't SEE the damage.

They may not understand the damage if it's only emotional and psychological.

A jury often wants to see for themselves how this injured patient has been affected as a result of your doctors' negligence.

Is the patient permanently disabled?

Are they unable to do their activities that they used to be able to do with ease?

Will this patient require ongoing medical and surgical care into the future?

My conversation with the caller was hampered by the fact that she did not know what a 'physical injury' was.

Even when I explained to her the importance of having a physical injury when bringing a lawsuit like this, she still believed that her psychological and emotional damages qualified as “physical injuries.”

I politely informed her that I could not help her.

I recommended that she speak to another attorney immediately in order to protect her rights to pursue a case.

Want to learn more?

Learn how admitting a weakness during your lawsuit helps build your credibility. Watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer