It never fails to amaze me what type of nonsensical defenses that are raised in medical malpractice cases here in New York.

You needed surgery.

Something happened during the course of your surgery that left you with significant complications and disability.

Your new surgeons determined that your original surgeon violated the basic standards of surgical care in performing your procedure. As a direct result of that, you suffered severe and permanent injuries. You choose to bring a lawsuit in order to obtain compensation for the harms and losses you suffered because of your doctor's carelessness.

In response to your lawsuit, the defense raises allegations against you, the patient.

The first thing they say is that they were not responsible for your injuries. They will claim the procedure was done appropriately and within good and accepted standards of care. Then they will likely argue that even if they did something improper, you also contributed to your own injuries.

Then they will argue that if they did something improper, there is no way that wrongdoing caused or contributed to your injuries. Then they will argue that the injuries you suffered are not worth as much as you claim them to be.

A fascinating defense...

One of the most fascinating defenses I encounter from time to time is when the lawsuit involves a claim of improperly performed surgery. During surgery you are under anesthesia. You are asleep. You are at the mercy of your doctors and hospital staff.

I have seen defense attorneys argue that you, the patient who's asleep during anesthesia, somehow caused and contributed to your own injuries during surgery.

This type of claim flies in the face of reality.

It is a physical impossibility.

Unless of course the anesthesiologist failed to give you sufficient anesthesia so that you wind up thrashing about during the course of surgery from extreme pain, it is highly unlikely that you caused or contributed to your injuries while you were asleep during surgery.

In New York, whenever an attorney raises a claim that the other side did or didn't do something, they are required to follow up and give a detailed list, an itemized list, of exactly how they believe the claim arose. They are required to detail how it was physically possible to cause your own injury while you were asleep in the middle of surgery.

Legally, that's known as providing a bill of particulars to your opponent.

This detailed bill of particulars puts your opponent on notice of exactly what your claim is, how you were claiming it occurred and what exact injuries you suffered as a result of this action.

What if the defense fails to provide a detailed itemization of how this preposterous claim occurred? Can the defense get away with simply raising outrageous claims that they cannot support?

The reality is that if the defense fails to provide us with a detailed bill of particulars, then we can ask the court to prevent the defense from raising this argument at any time during the litigation and certainly during trial.

In many cases we will have to ask the court to prevent and preclue the defense from raising this nonsensical argument if they have not taken the legal steps of getting us a detailed bill of particulars about this particular defense.

Here's what typically happens...

After you have started your lawsuit, the defense attorneys will typically throw in every type of defense they can think of as a knee-jerk reaction to the allegations. They do this simply to cover themselves at the very beginning of your case. They likely have not had sufficient time to research the facts of the case and to understand the details of what happened and what real defenses they may have.

When it comes time to show their cards, as they are legally required to do, there is often no possible way they can explain how the patient caused or contributed to their injuries during surgery while under anesthesia. In that instance, the court will likely dismiss this particular affirmative defense. What that means is that the defense will no longer be able to argue that you, the patient, caused or contributed to your own injuries while under anesthesia.

Imagine what kind of credibility problem the defense would have making this argument to a jury trial.

I will share something with you...

There are attorneys who have raised these type of crazy legal defenses before. If they can find a medical expert to support this claim, they will do everything possible to make this type of legal argument sound plausible. Then it will be up to a jury to determine whether they have shown that they are more likely right than wrong that this is what occurred.

To learn more about the claims raised by doctors and hospitals, I invite you to watch video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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