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Gerry Oginski's New York Legal Blog

This blog is designed to educate and inform you about recent news and how it may impact your legal case in New York. I have provided commentary and opinion and welcome your comments to keep the conversation going.

If you have urgent legal questions or need a lawyer, please pick up the phone and call me at 516-487-8207 today.


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2/16/2011
Gerry Oginski
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Surgical Instruments (plural) Left Inside Patient During Surgery

These were not small instruments. These surgical instruments were no supposed to be left inside the patient. Yet for some unknown reason, SIX surgical forceps (clamps) were left INSIDE this hapless patient. A Phillipino man had been a gunshot victim during a robbery in the Phillipines and underwent corrective surgery. He survived and was left with an open wound that was being monitored. Two days later, he was dead.

Category: Surgical Mistakes

1/31/2011
Gerry Oginski
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Man suffers blindness because of improperly performed surgery-Can't take case

A man had surgery to fix a detached retina and is now totally blind. He comes to me asking whether he has a valid case. After talking with him and his wife for an hour I came to the conclusion that there was no possible way I could take on his case. Although he clearly believed that something was done wrong during the course of one or more surgeries I still came to the inescapable conclusion that there was no way to help them. Why not?

Category: Medical Malpractice

1/16/2011
Gerry Oginski
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Cataract Surgery Nightmare; Woman Loses Vision in One Eye

Cataract surgery is supposed to make you see better. Unfortunately, when doctor recommends having surgery you don’t need, the outcome can be life-altering.

Category: Medical Malpractice

12/27/2010
Gerry Oginski
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Snowblower injury-Man loses four fingers in New York

We had a foot and a half of snow today in New York. Today was the day I was going to try out my brand-new snowblower. For years I had resisted getting a snowblower, believing that shoveling was good for me. Last year we had especially large snowfall and I decided to take the plunge and buy a 22 inch gas powered dual-stage snowblower made by Sears. Before today, I made sure to read the owner's manual twice. I filled the snowblower with gas and tried it out, just to make sure I knew how it operated and how to work the controls. When I awoke this morning I felt like a kid in a candy store. I couldn't wait to go out and play with my new toy. I pulled the snowblower out of the garage and it started right up without a problem. It was actually a lot of fun. I had been using it for about an hour when I decided to clear a path toward the door. We have a thick doormat and apparently I got underneath the doormat and the next thing I knew, I heard an immediate grinding and I shut off the power and propulsion. I turned the machine off and removed emergency key.

Category: General

11/30/2010
Gerry Oginski
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911 caller gives correct address. Dispatcher doesn’t get it right. Patient dies.

That’s what happened November 14 when a frantic woman called 911 after her husband was gasping for breath in Wainscott on the East End of Long Island. The dispatcher failed to ask the caller for the nearest cross-street and also failed to recognize the address that popped up on the computer screen. Newsday reported today that since the emergency call was made from a landline, the caller’s address immediately showed up on the computer. The dispatcher ignored it. Here’s where the problem arose: That address, 419 Montauk Highway is the same address for four different adjacent towns on the East End of Long Island. Those four towns are Wainscott, East Hampton, Montauk and Amagansett.

Category: Wrongful Death

11/29/2010
Gerry Oginski
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Prostate staging doesn't matter according to recent study

In a report coming out of the University of California, San Francisco, researchers have determined that prostate cancer staging just does not appear to matter after surgery. Staging is used to determine the size of a tumor, such as T1 or T2, as well as the chances that the cancer will recur. Oftentimes, cancer staging helps physicians and patients decide what treatments and options they have following initial surgery.

Category: Misdiagnosis and Failure to Diagnose

11/22/2010
Gerry Oginski
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1 out of 7 Medicare Patients Harmed in Hospital

Newsday reported about a new report confimring that 1 out of 7 Medicare patients suffer injury in hospitals. That is an astounding number. Medicare's new chief has called for improving patient safety following that report. In fact, the article reported that 15,000 people per month suffered a complication that contributed to their death, according to the inspector general of the Department of Health and Human Services.

Category: Medical Malpractice

11/16/2010
Gerry Oginski
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Faulty Heart Defibrilators-Cardiac Negligence

Newsday reported today that the Food and Drug Administrations wants manufacturers of heart defibrilators to fix the faulty devices. The FDA reported yesterday that heart defibrilators have been faulty and crippled by design flaws for many years. They noted that these cardiac defibrilators have failed to work in life-and-death instances. In 2009 there were...

Category: General

11/13/2010
Gerry Oginski
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You Do a Google Search-Why Does Your Name Show Up on a Personal Injury Lawyer's Website?

You're online looking for information and you decide to do a Google search for your name. You see a lawyer's website with your name on it and you can't understand why your name would be on a lawyer's website, so you click on it. What do you find? You may see your name mentioned in a sentence about an accident you were in. Buy you still ask yourself, "Why would my name show up on a lawyer's website?" There are a few reasons why, but let me tell you the most likely reason:

Category: General

11/8/2010
Gerry Oginski
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An article in today's Newsday describes a recent study done by the government that cost $250 million to determine whether CT scans are a reliable and effective method of screening for early detection of lung cancer.The government project showed a 20% reduction in mortality through spiral or helical CT scanning. As of yet, private insurers do not cover CT scans for routine lung cancer screening according to Dr. Harold Varmus, director of the National Cancer Institute, a sponsor of the CT scanning research.

As with any new diagnostic test that is expensive, many medical policy skeptics decry the use of diagnostic imaging based on ever-increasing health care costs. The Newsday article says that some medical policy experts have questioned the cost of cancer screenings of all kinds, citing false positives. I have written extensively on this topic before, and whenever medical policy experts get involved, you must always ask what their hidden agenda is. Typically it involves trying to reduce healthcare costs associated with diagnostic tests and treatments. Many of the so-called “policy experts” believe diagnostic tests and treatments are “unnecessary.”

The next time somebody tells you that you may have the early stages of a fatal disease, ask them what they would do if there was a test available that would detect this at an early-stage. Ask them whether they are willing to forgo early diagnosis and treatment of lung cancer in order to save an insurance company from paying $500-$1000 for diagnostic test. According to this government study, a CT scan is effective in diagnosing early lung cancers.

Dr. Harry Raftopoulos, a medical oncologist at North Shore-LIJ's Monti Cancer Center was quoted as saying there are no screening standards currently. The only ones in use are the ones created for this project to determine which patients would be right for this study. Interestingly, he asked a pressing question: "What are doctors  supposed to do when they diagnose an abnormal finding? He said there may also be a risk of exposing patients to unnecessary biopsies as a result of abnormal findings. However, both experts noted above predicted that their hospitals would eventually develop CT screening criteria that would allow patients to undergo this lung cancer screening test.

The article also quoted Dr. Jeff Schneider, director of lung cancer program at Winthrop University Medical Center saying that this study is groundbreaking. Hopefully, with early detection, patients can receive early diagnosis and treatment, which is exactly the goal for both doctor and patient.

Category: General

11/7/2010
Gerry Oginski
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Elevator Accidents in New York

Most people fail to realize that elevators are mechanical pieces of equipment. We take for granted when we walk into an elevator and push a button that it is going to take us to our destination without fail. However, that is not always the case. There are instances when the elevator will miss level causing someone to trip into the elevator or to fall out of the elevator from an elevated platform.

Category: General

10/28/2010
Gerry Oginski
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Ductal carcinoma in situ-what is it and do you believe the hype?

Let me ask you this question: If a doctor tells you that you have cancer but it has not spread, is it still cancer? That's like asking the age-old question “If a tree falls in the woods and nobody is around to hear it, does it make noise when it falls?” Ductal carcinoma in situ is a noninvasive form of breast cancer. According to published news reports, about 26% of US women diagnosed breast cancer have ductal carcinoma in situ. According to a Newsday report yesterday, the American Cancer Society estimated that for the year 2010, 54,000 new cases of noninvasive cancer of DCIS. will be detected. Separately, the American Cancer Society estimates that for this year, 207,000 cases of invasive breast cancer will be diagnosed.

Category: Misdiagnosis and Failure to Diagnose

10/27/2010
Gerry Oginski
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Sepsis can impact the elderly-Newsday reports

By its very nature, sepsis is an overwhelming infection that occurs throughout the body. If unrecognized and untreated, it can lead to death. Today's Newsday report discusses research published for the first time saying that sepsis patients had a threefold higher risk for developing cognitive problems such as forgetfulness, new physical limitations and often persistent disability. The article correctly points out that “Unless antibiotics and life support are delivered quickly, the condition can lead to organ failure and death."

Category: Surgical Mistakes

10/1/2010
Gerry Oginski
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Is this the end of medical malpractice lawsuits in New York?

Today, Renal and Urology News reported that five hospitals in New York city would be participating in a $3 million dollar, federally funded program to reduce medical malpractice errors. That's a good start. Here are some of the details. Beth Israel Medical Center, Mount Sinai Medical Center, Maimonides Medical Center, and Montefiore Medical Center will focus their efforts on reducing errors in obstetrics. The fifth hospital, New York Presbyterian Hospital, will focus on the prevention of surgical errors.

Category: Medical Malpractice

9/30/2010
Gerry Oginski
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Is a ruptured appendix evidence of medical malpractice?

Appendicitis is the most common acute abdominal surgical condition in medicine, yet there is probably not a single physician in practice today who hasn’t missed the diagnosis at least once. Often that results in “simple” appendicitis becoming a “ruptured” or “perforated” appendix. I have reviewed several such cases which have prompted this review. The appendix is a tubular extension of the cecum, in the right lower quadrant of the abdomen at the beginning of the colon or large bowel. Because of its structure, it acts as a “catch basin” or blind pouch where a variety of bacteria and mechanical obstructions can cause problems. One can think of appendicitis as a boil or abscess. Germs get in, propagate, and cause an infection. If the infected appendix is not removed, it can swell to the point where pressure causes rupture, spilling the infection into the abdominal cavity.

Category: Medical Malpractice

9/29/2010
Gerry Oginski
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Guest Post by California Emergency Medicine Physician Charles Pilcher, M.D.

The Institute of Medicine has been an advocate for clinical guidelines for many years. Although the value of guidelines has never really been established, both clinicians and medical malpractice attorneys often want to ascribe greater credibility to them than they deserve.

 

A few years ago Dr. Robert Ewart discussed the ethics of using guidelines to screen patients for medical conditions in a review entitled “Primum Non Nocere and the Quality of Evidence: Rethinking the Ethics of Screening” (J Am Bd Fam Pract. 2000:13(3):188-196). Dr. Ewart concluded that many of the “guidelines” in use at that time had insufficient evidence to be used as a standard for clinical practice. He pointed out that there is a marked difference between “investigation” (seeking to better define a known problem) and “screening” (seeking to find if there is a problem) in terms of four ethical principles: beneficence, nonmaleficence, autonomy, and distributive justice. Since the healthy bear the harms of screening, nonmaleficence takes ethical precedence over beneficence in individual cases. Both the cost of and the consent for such screening programs for both the individual and society have ethical implications and differ for screening vs. investigation. This review/essay is worth the consideration of attorneys, especially, for example, those who may be involved in situations where “loss of chance” is an issue.

Now, Dr. Pierluigi Tricoci et al. have revisited the value of clinical practice guidelines in an article in JAMA, (JAMA. 2009; 301(8): 831-841). While guidelines published by the American College of Cardiology and the American Heart Association have become important benchmarks for quality of care, the vast majority are based on inadequate evidence or biased expert opinion. They find that the evidence from which clinical practice guidelines are derived as well as the process of writing guidelines needs improvement.  A variety of print and online media provide more comprehensive analysis. Check out the articles in the Wall Street Journal, Bloomberg News, and USA Today.

In an accompanying editorial titled “Reassessment of Clinical Practice Guidelines: Go Gently Into That Good Night” (JAMA, February 25, 2009. 301(8):868-869), Dr. Terrence Shayneyfelt and Robert Centor find that:

  • Guidelines have become marketing and opinion-based pieces with a widely recognized financial bias.
  • Guidelines are being developed and used as “marketing tools for device and pharmaceutical manufacturers.”
  • As many as “87% of guideline authors had some form of industry tie.”
  • Guidelines need greater individualization for specific patient situations.
  • The guideline development process needs major changes to prevent conflicts of interest, reduce bias, improve flexibility and decrease redundancy.

In summary, they state that “clinical guidelines are supposed to be guides, not rules.” Because one size does not fit all patients, the authors suggest that “perhaps guidelines should be avoided completely,” and add that, given the present state of guidelines, “clinicians and policy makers must reject calls for adherence to guidelines. Physicians would be better off making clinical decisions based on valid primary data.”

They conclude that, because of the disarray found in guidelines, many clinicians (appropriately) do not use them.

Nor, in this editor’s opinion, should malpractice attorneys for either plaintiff or defense use them as a place to hang one’s hat.


About Chuck Pilcher


Chuck provides expert witness review and testimony in medical malpractice cases related to the fields of emergency medicine, urgent care, EMS and general inpatient and outpatient hospital practice.

Experience:

He has 35 years or experience as an emergency physician, most of those years as Medical Director of a now 50,000 visit per year suburban Emergency Department. Board certified in both Emergency Medicine and Family Medicine, he has has helped both plaintiff and defense attorneys with malpractice litigation for over 25 years. He is proud that attorneys on both sides have found his assistance valuable, and is especially honored when he has been retained by opposing counsel in a subsequent case following a deposition or trial. His CV can be found here.

Charles A. Pilcher MD FACEP

206-915-8593



Category: Medical Malpractice

9/26/2010
Gerry Oginski
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I lost a trial yesterday. Want to know why?

I lost a trial yesterday in Brooklyn Supreme Court. But the most amazing thing happened today. My client called me today to thank me for what I did for her. She thought I was amazing. Her praise was so wonderful and unexpected that I asked her to put her feelings in an e-mail to me so I could put it on my website for others to see. She happily agreed. Although disappointed with the result of her case, she felt that my representation of her was outstanding. You might be asking why I would tell a story involving a case I lost at trial. I’ll tell you why.

Category: General

9/20/2010
Gerry Oginski
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Michael Douglas has Stage IV Throat Cancer

Famous actor Michael Douglas has been diagnosed with stage IV throat cancer. He says he's upbeat about his situation too. He's been promoting his new movie where he plays character Gordon Gecko in Wall Street Money Never Sleeps. He tells everyone on TV that he's getting chemo and radiation and now throat cancer is at the top of the minds of lots of people. His famous actress wife, Catherine Zeta Jones has stated publicly that she is outraged that her husband's doctors failed to detect this cancer in a timely fashion. She's rightfully upset. Although the details of what complaints he had and what his doctors observed or failed to observe are not public, the basics of failing to diagnose cancer is the same.

Category: Misdiagnosis and Failure to Diagnose

9/7/2010
Gerry Oginski
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Filing Complaints against Hospitals: How to Be an Effective Advocate

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.

Category: Medical Malpractice

9/7/2010
Gerry Oginski
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Spinal Injection Causes Paralysis

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.

Category: Surgical Mistakes

8/21/2010
Gerry Oginski
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Falling Off an Operating Table

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.

Category: Surgical Mistakes

8/20/2010
Gerry Oginski
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Improperly Performed Sinus Surgery: Permanent Injury

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.

Category: Surgical Mistakes

8/10/2010
Gerry Oginski
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Sepsis Misdiagnosis

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?

Category: Medical Malpractice

7/26/2010
Gerry Oginski
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Residents Performing Unsupervised Operations

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

Category: Medical Malpractice

7/24/2010
Gerry Oginski
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Gerry Oginski wins $1.5 Million Verdict in Podiatry Malpractice Case

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.

Category: Medical Malpractice