I'll Tell You Why
by Gerry Oginski, Esq.
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. Every trial lawyer has lost a case at trial. It’s the nature of the business. No matter what type of case you handle, no matter how good you think your case is, no matter what experts you have, if you take your case to a jury you never know what they will do. That’s a fact.
Ask any trial attorney if he has ever lost a case at trial. The answer will be yes. Most will not want to admit it, at least not publicly. Trial lawyers don’t want to give people the perception that they have ever lost a case. The reality is that every trial lawyer has lost a case. If they have never lost a case, then I would seriously question their credibility and how often they go to trial.
Because of the uncertainty of taking a case to trial and not knowing with any precision what a jury will ultimately do, both sides will often attempt to settle a case either prior to trial or during trial. A very small percentage of cases are unable to be settled prior to trial. Of those medical malpractice cases that proceed to verdict, most are won by the doctors and hospitals. That’s a fact.
Want to know what my case is about? I’ll tell you.
This case involved a 22-year-old woman who was riding her son’s scooter in her driveway and fell injuring her left elbow. Five days later she went to an orthopedist’s office for evaluation. The doctor did a proper examination and took x-rays. He told her that there was no fracture seen on x-ray and that he wanted her to return for follow-up visit in one week. She was to put her arm in a sling and to get an MRI.
Later that day, the doctors office called to let the patient know that her health insurance had expired and therefore they could not get authorization for an MRI. She never returned to the doctor’s office, as he instructed, and was unable to obtain an MRI since she did not have the money or health insurance to do so.
The patient said that the doctor told her that since her arm was not fractured she could take her arm out of the sling and exercise it a few times a day so would not be stiff. A few days after her office visit, the patient experienced severe pain in her arm while exercising her elbow. Despite the severe pain, she did not seek medical attention for almost 2 more weeks. When she finally went to Coney Island Hospital emergency room, she was diagnosed with an avulsion fracture and now required surgery with hardware to fix the severe fracture.
We claimed that the doctor failed to diagnose the fracture when she was seen in his office, and if he had diagnosed at that time, she only would need a splint to fix or fracture. Instead, because of the delay she now suffered a more severe fracture that required surgery to correct.
Interestingly, the key issue in the case involved whether the x-rays were properly read. However, the doctor’s office lost my client’s x-rays making it impossible to know for sure whether he properly read her x-rays.
Despite being able to show credibility problems with the doctor who treated my client, together with the defense expert and an office manager, the jury came back with a decision in favor of the doctor finding there was no departure from the standard of care in treating my client.
Despite the outcome against us, I am very pleased to have had the opportunity to represent this young woman in her quest for justice. I know from her wonderful praise of my legal abilities, that I have gained a friend for life. That makes all the difference.