He was scheduled for surgery.

Elective surgery.

He had a problem with his shoulder for a long time.

It hurt.

It was painful.

Finally, he decided to go to an orthopedist.

The orthopedist agreed.

He needed surgery.

It was not an emergency.

It was elective.

The surgery would be 'same-day' surgery.

He'd be in and out of the ambulatory surgery center at the hospital in a few hours.

He'd have a regional anesthesia to put his entire shoulder and side to sleep.

He'd also have 'light-sedation' to put him to sleep.

He did not need general anesthesia for this elective orthopedic surgery.

He was given a date for this surgery.

The patient takes a few days off from work to have this surgery.

Before surgery, he has to go for pre-surgical testing.

All of his labs must be normal.

During presurgical testing, a nurse asks him a series of questions.

The patient fills out a form that asks about any medical problems, issues or allergies.

The patient wrote he had an allergy to lidocaine.

How did he know that?

He'd had a surgical procedure many years earlier and during the administration of local anesthesia passed out.

The doctors had told him he was allergic to lidocaine.

They told him that if he ever had surgery again, to let the doctors know that he had an allergy to lidocaine.

Knowing that, the patient correctly filled in the information concerning allergies.

He said he was "Allergic to lidocaine."

When the nurse asked him whether he had any allergies, he said "Yes."

“I am allergic to lidocaine.”

When he was asked what happened to him when he got lidocaine, he told them he developed a rash and passed out.

The nurse made a note in the presurgical testing record that the patient was allergic to lidocaine.

The patient's blood work was normal.

He had a green light for surgery.

On the day of surgery, in the operating room holding area, an anesthesiologist came to talk with him.

He confirmed his identity.

The anesthesiologist said he'd be the one giving anesthesia that morning.

During their brief conversation, this anesthesiologist failed to do two important things...

(1) He failed to ask if he had any allergies and

(2) He failed to read this patient's presurgical testing record.

Both of these were clear violations from the standard of care.

Had this anesthsia doctor done one or both, this patient NEVER would have suffered the injuries that I'm about to share with you.

According to the patient, the anesthesiologist did also not tell him what type of anesthesia he would be receiving.

The patient was brought into the operating room.

The anesthesiologist was preparing regional anesthesia.

That's a nerve block which puts to sleep a series of nerves in the shoulder and on the side of his body.

In order to correctly identify the location where this anesthesia medication goes, the doctor uses a device known as a twitch meter.

He has to identify the precise location where these nerves begin before he injects the patient with this medication.

This twitch meter was not working correctly.

With a needle sticking out of the patient's neck, the anesthesiologist left the room to fetch a working twitch meter.

He never called out for a nurse to get it for him.

When he returned with a working twitch meter, the doctor believed he had correctly identified the place to administer the medication.


Dr. Anesthesia begins depressing the syringe with the medication into the patient.

Within a fraction of a second after administering the anesthesia medication, this patient went into cardiac arrest.

There was a clear cause and effect here.

The patient stopped breathing.

His heart stopped.

He was in full cardiac arrest.

The anesthesiologist had to abandon the anesthesia routine and immediately try and revive the patient.

He had to bring him back to life.

The patient needed to be shocked.

To get his heart rhythm back to normal.

That's known as cardioversion.

It took fifteen minutes to revive him.

Then, they had to get him out of the operating room and into the cardiac care unit.

There was no way he could have his elective shoulder surgery now.

The cardiologists in the coronary care unit confirm he suffered a coronary event that required follow up with a cardiologist.

The patient was never told why he suffered a cardiac arrest.

He was never told by the anesthesiologist, or any doctor for that matter what caused him to suffer this incident.

He left the hospital days later wondering why he suddenly had a heart attack.

The nurses didn't know.

The doctors he asked didn't know.

Nobody knew.

By the way...the anesthesiologist who gave him this medication never saw or visited him in the hospital after he left the operating room.

This anesthesiologist also violated another basic standard of care during this episode.

He failed to write a note detailing the events that occurred during the administration of this medication.


There was only one line, written by someone else.

It said patient went into cardiac arrest prior to surgery and surgery was cancelled.

That's it.

No details.

Nothing about the twitch meter not working.

Nothing about why he chose this particular anesthetic.

Nothing about speaking to the patient before bringing him into the operating room.

Nothing to confirm he knew or didn't know about any allergies.

Nothing to indicate he had read the patient's chart and was aware of his prior medical issues.



Not there.

Clear violation from the standard of care.

However, you should know that the only way this violation proves useful is when we can show that we are slightly more likely right than wrong that this was a cause of the patient's injury.

In this instance a record-keeping violation is not the reason this patient suffered his cardiac event.

But, it does show his carelessness. 

It does show his failure to follow protocol.

It shows his failure to follow good medical practice.

The jury would be permitted to hear about this.

The jury would be allowed to consider this when evaluating his actions.

For months after he left the hospital, he didn't know why he had this heart attack.

He had questions and nobody from the hospital would answer them.

That prompted him to call me.

After getting all the patient's medical records and having them reviewed by a board certified anesthesiologist did we confirm he had a valid case.

My expert concluded that this patient had a known allergy to lidocaine.

The anesthesia medication contained lidocaine.

The patient suffered an allergic reaction, known medically as an anaphylactic reaction.

That caused the heart attack.

That was our theory.

It was a solid theory.

It was based upon the medical and hospital records.

At least that's what we thought at the very beginning.

That allowed me to start a lawsuit on this patient's behalf.

We sued the hospital.

We sued the anesthesiologist.

We also sued the orthopedist.

The anesthsiologist was the primary target.

He was the one who should have known better.

He was the one who gave the patient a medication he was allergic to.

It was that allergic reaction that caused the heart attack.

So we thought.

Turns out, we were wrong.

But I'll get to that in a moment.

The hospital was sued because we believed they employed the anesthesiologist.

We have to include the hospital in the lawsuit because an employer is always responsible for the acts of its employees.

There's a fancy legal phrase in law that describes this relationship.

It's called 'respondeat superior'.

It simply means the employer is responsible for the employee's actions.

Why was the orthopedist sued?

His records indicated he was aware of the patient's allergy to lidocaine.

He was the one performing the surgery.

We believed the orthopedist failed to tell the anesthiologist about the patient's allergy.

How did I come to learn that our theory for this entire case was wrong?

By questioning the anesthsiologist.

You see, during a civil lawsuit I have an opportunity to question the doctors you have sued.

This question and answer session is commonly known as a deposition.

It's done in an attorney's conference room.

There's no judge present.

There's no jury present.

There is a court reporter there to record all of my questions and all of the doctor's answers.

That information is transcribed and put into a booklet known as a transcript.

Those questions and answers form the basis of the doctor's pretrial testimony.

It carries the same exact weight as if he were testifying at trial in front of a judge and jury.

It was during this deposition, also called an examination before trial, that I learned of our mistake.

It was a big mistake.

It was huge.

My expert had never before made a mistake like this.

It wasn't a fatal mistake.

Instead, it was correctible.

I'll tell you what it was in a second...

But there was a key reason why our theory of what happened here was wrong.

It was something we didn't know.

We couldn't know.

We had no idea.

Why not?

Because the anesthesiologist failed to write a note.

Because he failed to document what happened.

Because he neglected to do what he should have done.

Had he written that incident note, we'd have had a better understanding of what happened.

Had he written that incident note, we'd have known that what we were claiming happened didn't happen.

Ok. Enough suspense.

Let me share with you what I learned during this deposition that generated a remarkable comment from the doctor's attorney at the end.

"Gerry, in more than thirty years representing doctors in medical malpractice cases, I have never seen anyone change their legal theory of what the doctor did wrong, like you just did, in the middle of questioning. That was amazing and I'm shocked you got the doctor to admit what he did."

That was the doctor's attorney said to me after this deposition was over.

Here's what I learned from this doctor.

He was employed by the hospital.

For more than ten years.

That meant the hospital was responsible for his actions.

The hospital was switching over from handwritten paper records to electronic medical records.

He claims he didn't know there were handwritten presurgical testing notes.

That was bull.

Since he knew the hospital was transitioning to electronic medical records, he had to have known that there were written records as well.

That meant he never read the presurgical testing notes.

He never read the form the patient filled out about his allergy.

He never read the nurse's note about this lidocaine allergy.

If he knew this information, he'd never have given the patient anesthesia containing this medication.

He'd have given him general anesthesia and put him to sleep.

The doctor also claimed that he did ask the patient if he had any allergies.

He claims the patient said "No, I don't have any allergies."

Now this was a lie.

A huge lie.

Why would the patient put down in his own handwriting on presurgical testing forms that he WAS allergic to lidocaine and then tell the anesthesiologist who would be giving him anesthesia that he WASN'T allergic to any medication.

This was bull.

This was a total lie.

My client was believable.

What my client had said made sense.

More likely than not, this doctor never asked the patient if he was allergic to anything.

If he had, the patient would have said "Yes."

"To lidocaine."

Knowing that, the doctor would have never given him a regional anesthetic containing lidocaine.

Had he done that, none of this would have happened.

There would have been no cardiac event.

There would have been no lawsuit.

His shoulder surgery would have proceeded.

But that's only half the story.

Here we have a clear factual dispute.

Doctor says he asked the patient about allergies.

He claims patient said he didn't have any.


Doctor claims he didn't know there were handwritten presurgical testing notes.

There were.

He just never bothered to read them.

Then I asked him whether he's required to record events that occur in the operating room regarding anesthesia.

He said "Yes."

"Doctor, show me the incident note you wrote about this cardiac arrest."

"Uh, uh, I don't have one."

"Why not?" I asked.

"I don't know. Maybe I got too busy and forgot to write a note," he uttered unconvincingly.

"Would you agree that failing to document a cardiac event as you were prepping the patient for anesthesia would be violation from the standard of care?" I asked.

"Yes," he answered.

That one was obvious.

But it was only a departure from good care.

That departure is not what caused my client his injuries.

But it did show a pattern.

Of carelessness.

Since there were no recorded notes about this incident, I needed the doctor to tell me, step by step, what happened.

Based on his memory.

He remembered this.

He remembered this incident really well.

Here's what threw me for a loop...

Remember earlier when I told you our theory was that this patient had an allergic reaction to the lidocaine?

Well, it turns out, he didn't.

He didn't have an allergic reaction at all.

When the doctor told me this I started thinking "WHAT?? What is he talking about? This is so obvious! How could the patient not have had an allergic reaction?"

Here's what we knew...

The patient was allergic.

To lidocaine.

The anesthesiologist gave this patient medication containing lidocaine.

Moments later, he had a cardiac arrest.

It was clear.

One caused the other.

The doctor didn't know the patient was allergic to lidocaine.

He gave the patient medication with lidocaine.

The patient suffered cardiac arrest.

There's a timeline showing cause and effect here every step of the way.

So I thought.

I was wrong.

My expert was wrong.

All because this doctor failed to record what actually happened.

Remember when I told you that the 'twitch meter' wasn't working?

The doctor had to run out of the operating room and get another one?

Well, when he tested the location of where he should be administering the medication, he thought he was in the right place.

Turns out, he wasn't.

He was in the wrong place.

That meant that when he injected this medication containing lidocaine, it went straight into the patient's bloodstream.

It was never supposed to go into his bloodstream.

That went straight to the heart.

That's what caused this patient's heart to stop.

That's what caused his breathing to stop.

This medication NEVER should have been in his bloodstream.

It was meant to go into the muscle and put the nerves to sleep.

That sudden cardiac event was not caused by an allergic reaction!

An allergic reaction would have resulted in different symptoms.

A rash.

Tightening of the throat.


Typical signs of anaphylaxsis.

What happened here was not typical of an allergic reaction.

We had no way of knowing that before.

This was a shock.

I'm scrambling to find a way not to react to this blockbuster revelation.

I did not show any surprise when the doctor told me this.

I didn't say a word.

I simply took this information and now started asking questions.

Lots of them.

About the standard of care.

About what should be done.

About what was done.

About what wasn't done.

With this new information, I knew I could get this doctor to admit he screwed up.

I knew I could get him to acknowledge that his wrongdoing caused injury.

"Doctor, would you agree that giving a patient a medication they're allergic to would be a violation from the standard of good medical care?"


"Would you agree that had you known this patient was allergic to lidocaine, you'd have chosen a different anesthesia to give him for surgery?"


"You would have given him general anesthesia in that instance, correct?"


"Had you given this patient general anesthesia, would you agree he would not have suffered this cardiac event?"


"Would you agree that before giving the patient anesthesia, you need to read all presurgical testing records?"


"Would you also agree that before performing surgery, you as the anesthesiologist must talk to the patient and determine for yourself whether the patient has any allergies?"


I had him explain why.

"You would agree it would be highly unusual for a patient to confirm in writing that he had an allergy and told a nurse during presurgical testing he had an allergy, yet tell you he was not allergic to anything."


"Your notes only indicate that you checked off a box saying you asked about allergies, true?"


"There's nothing to indicate the response the patient gave, correct?"


"No note to say he was allergic. No note to say he wasn't. Correct?"

To recap, I had a doctor here who lied.

It was obvious to me.

It was obvious to his attorney.

He lied about asking the patient if he had any allergy.

He lied about not knowing there were written presurgical notes.

This wasn't his first day on the job.

He now tells me that had he known the patient was allergic, he'd never have given him this medication.

That meant that had he done what he was supposed to do, this patient NEVER would have suffered the injuries he did.

After the doctor's deposition was over, the defense attorney asked if he could speak to me.

That's common.

What he said to me wasn't.

He actually complimented me.

For never skipping a beat.

For changing my theory of liability in the middle of questioning.

For getting the doctor to admit what he did was wrong.

For getting him to acknowledge that my client's injuries should never have happened.

When I sent the transcript to my medical expert for comment, he agreed.

He agreed that's exactly what happened.

It was now clear.

Believe it or not, I respected this defense attorney.

He was a seasoned trial attorney.

A very skilled lawyer.

I was looking forward to trying this case with him.

Unfortunately, I never got to try this case.

We settled this case during jury selection.

The defense knew they couldn't defend this case.

But this never should have happened.

To learn how I knew this doctor's lawyer, I invite you to read this fascinating story that sheds light on why I chose to become an attorney...

To learn more about this allergic reaction case, I invite you to watch the quick video below...



Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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