This headline is a misnomer.

In New York, we don't actually have to prove anything.

Let me say that again.

We don't really have to prove anything.

We do have to show that we are more likely right than wrong that what we are claiming is true.

In a medical malpractice case in New York we are claiming that your doctor was careless.

We also claim that his carelessness was a cause of your injury.

We also claim that your injury is significant or permanent.

Defense lawyers like to argue at trial that we have the burden of proving our case.

Technically, that's true.

Since we are the ones bringing a lawsuit against your doctor, we are the ones who must show that you are more likely right than wrong.

Some people believe, wrongly, that we have to show with 100% certainty, that your doctor treated you improperly.

That would be inaccurate.

We don't have to do any such thing.

The defense argues that we have to show by a preponderance of evidence that we're entitled to a verdict in our favor.

Again, this is technically true.

But what exactly does a preponderance of evidence mean?

It doesn't mean that all the evidence is in our favor.

It doesn't mean that all the evidence shows we're right.

It simply means that we are ever so slightly more likely right than wrong.

Let me put it another way...

Let's say it's a football game.

Our running back is running with the ball to the end zone for a touchdown.

Our running back does not need to get all the way into the end zone to get a touch down.

Instead, if the tip of the ball enters the end zone, even the tiniest portion of the ball or the tiniest portion of his foot, that's enough to prove our case.

That's enough to justify a verdict in our favor.

To put it another way...

If the scales of justice are even, 50% for the injured patient and 50% for the doctor, if we can tip those scales ever so slightly so that the injured patient has shown that she is more likely right by 50.1%, then she is entitled to a verdict in her favor.

That's what preponderance of evidence means.

Some jurors have the mistaken belief that when they are asked to decide your case that they must sit in court for weeks making absolutely sure that what you are claiming is true.


That's not what's required for a verdict in a civil lawsuit against your doctor in New York.

We only need to show that you are slightly more likely right than wrong.

Let's get back to basics for a moment.

In NY, just because you think your doctor screwed up and caused you harm does not give us the right to start a lawsuit on your behalf.

If this were a car accident, you could start your lawsuit the next day.

If this were a case involving a product you purchased that was defective, you could start your lawsuit the next day.

However, since you believe that your doctor was careless and caused you harm, we are NOT permitted to start a lawsuit until the following things are done...

First, we have to obtain all of your medical records.

Second, we have to review all of your medical records.

Every single page of every one of your records.

Then, we have to hire a board certified medical expert who has agreed to review all of your medical records.

Then we have to send our expert all of your records.

Then we have to consult with our expert about his evaluation of your records.

Our medical expert must confirm three things before we are legally permitted to start a lawsuit on your behalf.

  1. He must confirm your doctor violated the basic standards of medical care.
  2. He must confirm that those violations or departures from good care were a cause of your injury.
  3. He must confirm that your injuries are significant and/or permanent.

All three of those things MUST be present in order to go forward with a valid case.

If any one of those three things is missing, we cannot start a lawsuit on your behalf.

So, getting back the misnomer of a do we actually prove a case on your behalf?

With an expert.

With a qualified medical expert.

A board certified medical expert.

One who has preferably testified for both injured patients and for doctors and hospitals who have been sued.

One who has a track record of being able to communicate well with juries.

One who can speak to laypeople without being overly scientific.

Medical malpractice cases in New York are unique in that we are required to have a medical expert when proceeding with a case and when proceeding to trial.

Since there are often many different medical specialties involved in your care, likewise we often need more than one type of medical expert to testify on your behalf.

Let's say this is a brain damaged baby case where we claim that your baby suffered permanent brain damage at the time of deliver from a lack of oxygen at birth.

We will need an obstetrician to testify.

We will need a pediatric neurologist to testify.

We may need an anesthesiologist to testify.

What that really means is that we need one expert to show there was wrongdoing. 

In this scenario, it might be a board certified obstetrician to claim that your obstetrician failed to do a timely c-section.

We may need another medical expert to show the sequence of events known as causation led to your baby's injuries.

Causation is the link between the wrongdoing and the injury.

Then, we will likely need another medical expert to discuss the baby's extensive injuries and how they are permanent and will affect him for the rest of his life.

We use the medical records to show that we are more likely right than wrong.

We use pretrial testimony given by the doctors involved in your labor and delivery to show that we are more likely right than wrong.

We use medical literature to show that we are more likely right than wrong.

We try and use medical textbooks to show we are more likely right than wrong.

You might be thinking that the doctors and hospital staff do the same thing.

You'd be right to think that.

They do.

They also hire medical experts to dispute our claims.

They may hire just one.

They may hire multiple experts as well.

There is no doubt they will dispute every one of our claims.

You might be wondering how a jury will be able to determine which experts to believe.

That's a common problem in these malpractice cases.

That what a jury will do.

One of their functions is to decide which experts are more believable.

The jury will decide which witnesses they believe.

If the jury believes the defense experts, you will lose.

If the jury believes our medical experts, you will win.

Remember, we don't have to prove with any certainty that you're entitled to a verdict.

Instead, we only have to show that we are slightly more likely right than wrong that what we are claiming is true.

That's what we have to show.

That's true in 2016 as I write this on the last day of the year.

That's true in 2017 going forward.

To learn more about the burden of proof in these malpractice lawsuits, I invite you to watch the quick video below...

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer
Post A Comment