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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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Gerry Oginski
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Kidney Cancer-Losing a case you should have won

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.

Category: Misdiagnosis and Failure to Diagnose

Gerry Oginski
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Death From A Ruptured Shunt-NY Medical Malpractice Lawyer Explains

Today's video 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.

Category: Surgical Mistakes

Gerry Oginski
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Retained Lap Pad-Patient Needs 2nd Surgery To Remove

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. 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.

Category: Surgical Mistakes

Gerry Oginski
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I Can't Believe I Slipped On Ice!

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.

Category: General

Gerry Oginski
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Testicluar Torsion

Failure to Diagnose and Timely Treat Can Result in Death of a Testicle

Category: Medical Malpractice

Gerry Oginski
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Settlement Reached at Same Time as Jury Verdict-Result?

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.

Category: Medical Malpractice

Gerry Oginski
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Failure to Diagnose Aneurysm

What is an aneurysm? How does someone fail to diagnose an aneurysm? What are the ramifications of missing a bleeding or rupturing aneurysm? Read the blog post to find out.

Category: Birth Injuries

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

Learn why your treating doctor may be your best expert in a medical malpractice case.

Category: Medical Malpractice

Gerry Oginski
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How to Choose a New York Lawyer From a TV Commercial

You need to find an attorney. You're watching TV and see 5 different lawyer ads. How do you choose which law firm is right for you? Read the article to find out.

Category: General

Gerry Oginski
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How to Start a Medical Malpractice Lawsuit in New York

Ever wonder how exactly a medical malpractice case gets started in New York? Reading this article will take you through the different steps an attorney needs to evaluate once you walk into their office. Take a look.

Category: Medical Malpractice

Gerry Oginski
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Frivolous Lawsuits in New York City: Where Are They?

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

Category: Medical Malpractice

Gerry Oginski
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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.

Category: Medical Malpractice

Gerry Oginski
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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 [email protected] 

Category: Birth Injuries

Gerry Oginski
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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. 

Category: Medical Malpractice

Gerry Oginski
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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."

Category: Medical Malpractice

Gerry Oginski
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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.

Category: General

Gerry Oginski
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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.

Category: Medical Malpractice

Gerry Oginski
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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


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.

Category: Car Accidents

Gerry Oginski
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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.

Category: Medical Malpractice