I handed her the check.

She looked at it.

It had lots of zeros on it.

She was dumbfounded.

She’d never before seen a check for this amount of money.

Her mouth dropped open.

She had a big smile on her face.

She gave me a big hug.

She was sad inside, but I knew that look.

It was a look of appreciation.

It was genuine look that said ‘“Thank you!”

It took 3 years to get to this check.

It was gratifying.

It was satisfying.

It was life changing for her.

You see, I’d only met her 3 years ago.

She came to my office.

With a terrible story.

It was a story I’d heard many times before.

It was a story I could tell.

It was a story that did not have a happy ending.

However, here we were.

In my office.

Three years later and she was smiling.

She was tearing up.

She was happy.

For the first time in a long time.

Three years ago her mother died.

She was really close to her.

So were her two sisters.

Her mother was in her early 70’s.

They were a close knit family.

They lived near each other.

She’d been having some rectal bleeding.

She told her eldest daughter.

Her daughter said to see her doctor.

She went to her primary care doctor.

He did a basic stool test.

It confirmed there was blood in there.

He said “It’s not normal for someone your age to have blood in your stool.”

“You need to see a gastroenterologist.”

“He’ll scope you and try to figure out why you’re bleeding there.”

She took his advice and made an appointment with a GI doctor.

The GI doctor confirmed she had rectal bleeding.

“You need a colonoscopy,” he said.

She said “Ok.” 

She hadn’t had one in a long time.

She wasn’t looking forward to it.

She remembered the horrible liquid she had to drink to prepare for the colonoscopy.

She took the instructions and put it in her pocket book.

He reassured her this would be a ‘routine’ procedure.

He told her it would take about 15 minutes for him to look around.

She’d be asleep & wouldn’t remember any of it.

She liked that part.

She just wanted to get it over with.

She felt fine.

She was able to do her daily activities.

The only problem was that she’d notice blood in the toilet bowl when she went to the bathroom.

Her GI doctor told her not to worry.

There’d be an anesthesiologist in the room.

He’d give her a little sleepy medicine in her IV and she’d wake up feeling refreshed.

Her appointment was scheduled in one month.

To be done in an ambulatory surgery center.

Near her home.

In Brooklyn.

Three years later, her eldest daughter would be picking up a check in my office to compensate her and her sisters.

Money as a form of compensation.

Money to pay them for the harm mom suffered.

Money to repay them for the loss of their mom.

Money to repay them for improper medical care.

Money to make them ‘whole’ again.

Money to ease their pain.

The one thing this money wouldn’t do was bring back mom.

This money wouldn’t allow mom to have her life back again.

Nothing would make that happen.

This money was payment from the gastroenterologist’s insurance company.

This money was payment from the anesthesiologist’s insurance company.

This money was payment to settle their lawsuit.

A lawsuit that her daughters brought on mom’s behalf.

A lawsuit that was confirmed by board certified medical experts.

A lawsuit that had merit.

It was a wrongful death lawsuit.

They claimed these doctors violated the basic standards of medical care.

The lawsuit claimed that these doctors were careless.

It also claimed that their carelessness was a direct cause of mom’s untimely death.

It was now a day before mom’s colonoscopy.

She followed the doctor’s instructions to the letter.

She drank that vile liquid.

Then, she was in the bathroom for a while.

It cleaned her out.


She was now ready.

Ready for her ‘routine’ colonoscopy.

She was ready to go to sleep and awake refreshed.

Except she wouldn’t be refreshed.

She wouldn’t feel good.

In fact, she’d have difficulty breathing.

She’d have difficulty perfusing oxygen.

Her oxygen saturation would be dramatically abnormal.

To make matters worse, the anesthesiologist didn’t even realize how bad her condition was.

Nor did he recognize the problem that put her in this dire situation.

He was careless.

He violated the basic standards of medical care.

There’s no question he was negligent.

There’s no question his negligence caused her injury.

There’s no question his wrongdoing caused her death.

The sad thing was that this was preventable.

The tragic thing was that if he had a basic level of understanding anesthesia, he’d have recognized the problem and been able to minimize it.

Our medical experts confirmed that mom would be alive today if these doctors acted appropriately. Similar to what happened to Joan Rivers in the ambulatory surgery center.

You might think the GI doctor perforated mom’s bowel.


You might think he made a hole in her colon and didn’t recognize it.


You might think that her doctors intentionally did something.


So what exactly did they do that led to her death?

Halfway through the colonoscopy, the GI doctor encountered a small blockage.

He couldn't pass the colonoscope past a certain point.

He tried to push through the blockage.

At that point, mom vomited.

The anesthesiologist didn’t know she vomited.

The anesthesia doctor wasn’t paying attention.

This procedure was being done under a light IV sedation.

A twilight sedation.

Mom was not intubated with a tube down her throat.

Since this was IV sedation, her airway was not protected.

That meant that if she threw up while under anesthesia,

Her next breath would inhale the contents that were now in her mouth.

Mom had followed the GI doctor’s instructions to the letter.

There was nothing in her bowel.

There was nothing in her stomach.

She hadn’t eaten anything in 24 hours.

There shouldn’t be anything she could throw up.

But there was.

Gastric contents.


From her stomach.

That’s not the problem.

Remember, she’s sedated.

But, her airway is not protected.

What that means is that if vomit comes up from her stomach, it goes up to her mouth.

The next breath brings whatever is in her mouth directly into her airway and into her lungs.

That’s known as aspiration.

That’s bad.

That’s really bad.

That means that her stomach contents went somewhere it NEVER should have gone.

There’s another problem…

Stomach contents are acidic.

Acidic stomach contents do NOT belong in the lungs.

Foreign content in the lungs is called a pneumonia.

In this case, it’s called aspiration pneumonia.

The big problem here is that the GI doctor didn't recognize it.

Nor did the anesthesiologist.

The very first indication the anesthesiologist realized there was a problem was when the oxygen saturation meter alarm went off.

It was an alarm.

It was a sign there was a problem.

It indicates that the patient is not getting sufficient oxygen to her tissues and her body.

The alarm doesn’t tell you why the alarm was triggered.

It only tells you there’s an oxygen perfusion problem.

Now, the anesthesiologist’s investigative skills need to kick in.

Is it a defective oxygen saturation monitor?

Did the monitor fall off the patient’s finger?

Or is it more serious?

Is it a problem with the patient?

Can it be fixed?

Is the colonoscopy procedure almost over?

He quickly determined the pulse oximeter that measures oxygen saturation was working fine.

It wasn’t the equipment.

It was the patient.

He examined her mouth.

He found some fluid.

He suctioned what was in her mouth.

My GI medical expert confirmed that was useless.

My anesthesia expert also confirmed what he did was useless.

That didn’t address the problem she had.

That didn’t address the aspiration pneumonia.

Nor did it address why she wasn’t getting sufficient oxygen to her lungs and her tissues.

My expert said he should have suctioned down past her vocal cords.

But he didn’t.

Had he done that, he’d have minimized the damage she was experiencing.

But he didn’t.

The anesthesiologist told the GI doctor that the patient had a problem.

Rather than stop the procedure, the GI doctor decided to continue.

He continued for many minutes.

The GI doctor continued pressing past the blockage in the colon.

“I’ll be only another five or ten minutes,” he told the anesthesiologist.

The anesthesiologist never considered aspiration.

After the colonoscopy was done, mom was put in the recovery room.

She could barely breathe while lying down.

The nurse lifted the bed up to an almost sitting position.

But her breathing was labored.

There was a crackling sound in her lungs.

She was severely short of breath.

Her oxygen saturation readings were markedly abnormal.

They were very low.

The anesthesiologist wasn’t even in the room with her.

He went to attend to another patient having a colonoscopy right after mom.

It wasn’t until 30 minutes later did a recovery room nurse realize mom had a serious problem.

She called for the anesthesiologist immediately.

After another ten minutes of not understanding what was really going on, he finally tells a nurse to call an ambulance.

To take mom to the emergency room.

The closest one.

Shortly after arriving at the hospital, mom lapsed into a coma.

She had to be put on life support.

The machines had to breathe for her.

She wasn’t conscious.

She didn’t know what was going on.

She didn’t know that she’d be dead in two days.

Her doctors at the hospital said she suffered terrible lack of oxygen to her brain.

Her lungs were badly damaged.

All because she vomited during the procedure.

They didn’t understand why the anesthesiologist failed to recognize this.

They didn’t understand why the anesthesiologist failed to act on this.

There are anesthesia protocols to address this emergency.

He didn’t follow any of them.

Her inability to breathe and perfuse oxygen caused brain damage.

Her damage to her lungs and brain caused her organs to shut down.

The doctors call that multi-system organ failure.

Her eldest daughter said there was only one saving grace here.

That she didn’t know what was going on.

That she didn’t outwardly feel pain.

But make no mistake.

Her daughters were angry.

They were furious.

They wanted blood.

They wanted vengeance.

They wanted these two doctors to pay.

They wanted to see these pathetic doctors’ faces.

These arrogant doctors.

The ones who told her this would be a ‘routine’ procedure.

I began to investigate.

The doctor sent me his records.

They didn’t say much.

The medical records didn’t explain why she aspirated.

The records didn’t explain that the anesthesiologist didn’t recognize her aspiration.

The records didn’t delve into why this procedure was not terminated when her oxygen saturation levels dropped.

Before ever filing a lawsuit, the daughters were upset.

The doctors never told them what happened during the colonoscopy.

While waiting outside the ambulatory surgery center, the GI doctor never told her daughter what had just happened.

Nor did these two doctors follow up with mom or her adult daughters.

When mom was in the intensive care unit hooked up to life support, the GI doctor never called.

He never visited mom.

He never called the daughters.

They were outraged.

They had no answers.

That’s what prompted them to come to me.

They wanted answers.

They wanted to know why.

They wanted to how this could have happened.

They wanted to know if this could have been prevented.

The answer was that it could have.

If only the doctors had done the right thing.

But they didn’t.

And now they were burying mom.

Way before her time.

Way before anyone was ready.

Way before it should have happened.

These doctors did not voluntarily pay the surviving daughters.

In fact, they refused, for years, to admit they did anything wrong.

They refused to admit that if they did something wrong, that it caused mom injury.

They also refused to admit that any of their actions caused mom’s death.

They continued to argue they were not responsible for any injuries or her death.

Until I questioned the doctors at their deposition.

It’s pre-trial questioning.

It’s given under oath.

It carries the same exact weight as if they are testifying at trial.

It’s done in their attorney’s office.

There’s no judge there.

There’s no jury there.

There is a court reporter there to record all of my questions and all of the doctors’ answers.

The court reporter then transcribes that into a booklet known as a transcript.

During my questioning of each doctor, I was able to establish the standard of care.

The standard of care for what to do.

In this exact scenario.

The doctors told me in their own words what the standard of care was.

I asked them.

They told me.

Then, I compared the ‘standard of care’ with what they did.

At least, what they claim they did.

Neither one was willing to admit they did anything wrong.

How do I know?

Because I asked them.

“Doctor, did you violate the basic standard of medical care during mom’s colonoscopy?”

“Of course not!” each doctor exclaimed.

Well, that’s a very poor question to ask.

It puts the doctor on the defensive.

He has no choice but to deny he did anything wrong.

I knew how to get the answers I needed to prove our case.

I knew what I had to ask to show that we were more likely right than wrong that what we were claiming was true.

It went something like this…

“Doctor, I want you to assume the following facts are true…

That mom was 70 years old,

That she had rectal bleeding.

The she needed a colonoscopy.

I also want you to assume that during the colonoscopy you encountered a blockage in the colon.

Would you agree that good medical practice requires you to evaluate whether you can proceed forward or must abandon your procedure?”

“Yes,” the doctor answered.

He thought I was going to focus on a judgment call he made to proceed forward.

I wasn’t.

That wasn’t our theory.

“Would you agree that good medical practice requires you to abandon the procedure if there is a medical emergency with the patient?”

“Yes,” he answered with some hesitation.

He could sense I was going somewhere he didn’t want to go.

“Would you agree that aspirating during a colonoscopy can be life-threatening?”

“Yes,” he said.

“How?” I asked simply.

He explained in his own words how aspirating stomach contents could destroy the patient’s lungs. 

It would make it difficult for her to perfuse oxygen. 

If severe enough, it would prevent the patient from getting sufficient oxygen.

 She could die from aspiration pneumonia.

I asked him if he knew what the signs of aspiration were.

At that point, all the defense attorneys started yelling and screaming at me.

They objected to my question.

They argued that since I was questioning the GI doctor, my questions should stick to his expertise.

I’d have plenty of opportunity to question the anesthesiologist and ask him those exact questions later.

While true, I still needed to get an answer from the GI doctor.

I needed to know what his basic level of understanding was about aspiration while a patient was under IV sedation.

The defense attorneys relented.

They knew I was entitled to ask this question.

Even if they objected, I was entitled to an answer from the doctor.

By the time I was done, the doctor gave me all the information I needed.

By asking him specific hypothetical questions, the doctor reluctantly admitted that under the same circumstances, there were clear violations from the basic standards of medical care.

Months later, I had an opportunity to question the anesthesiologist in this case.

He was reluctant to tell me the standard of care.

He knew where I was going.

However, he had no choice.

He had to answer as he is technically considered a medical expert.

That means I can question him as if I am cross-examining him at trial.

That means I can ask him ‘yes’ or ‘no’ questions.

That means I can ask him leading questions.

That means I do not have to ask him open ended questions such as who, where, what, why or how.

By asking leading questions, and combining them with hypothetical questions, this anesthesiologist confirmed everything that my experts had confirmed.

I was able to get these two doctors to recognize that failing to recognize aspiration during this procedure would be a clear violation from the basic standards of medical care.

I also got them to admit, reluctantly, that failing to act properly in light of an aspiration could have dire consequences for the patient.

They also admitted that unchecked aspiration pneumonia could cause severe oxygen deprivation ultimately leading to the patient’s death.

It was only after obtaining this testimony from both doctors did their insurance companies recognize they could not proceed to trial.

After advising the court that we were ready for trial, the attorneys representing the doctors and their insurance companies approach me to try and settle.

They knew that if they took this case to trial and waited for a jury to come back with a verdict, they would likely lose.

Fast forward three years.

That's how long it took to litigate this case.

That's how long it took the doctor’s insurance companies to realize they had reached the end of the line.

They could no longer delay this case.

They could no longer delay paying the surviving daughters.

They could no longer delay compensating her family.

It was time to pay.

And they did.

For the eldest surviving daughter, this settlement check was bittersweet.

I developed a great relationship with her surviving daughters.

We would speak every month.

I kept them updated on everything that happened on their case.

Even during months when nothing seems to be happening.

They appreciated all that I did for them.

They appreciated how often I communicated with them.

They appreciated the intensity with which I litigated their case.

She gave me a big hug after I gave her the check.

She hoped we would keep in touch.

She said she would gladly give my name to any of her friends or family if they ever needed an attorney who handles medical malpractice cases or wrongful death cases like hers.

I really liked her and her sisters.

There were wonderful people.

They didn't really want the money.

They just wanted mom back.

That was the one thing I couldn't give them.

To learn more about this tragic case, I invite you to watch the quick video below…

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer