A TRUE STORY...27 years later...

Anesthesiologist violates basic standards of medical care.
Gives patient medicine he’s allergic to.
Then, improperly administers medicine.
Patient has heart attack in operating room.
Surgery is cancelled.

I represented this patient.
Our expert anesthesiologist confirmed we had a valid medical malpractice case.
Lawsuit started against hospital and anesthesiologist.

Two defense attorneys replied.
One for the hospital.
One for the anesthesia doctor.

The one for the anesthesia doctor was a name I clearly remembered.
The senior partner in that firm was the same lawyer who represented the cardiology doctor in the lawsuit my mother had brought when my dad died so many years ago.

I remembered this lawyer clearly.
I remembered his closing argument in our wrongful death case.
I remembered he was very convincing.

And now, if I was lucky, I’d get to oppose him in this lawsuit.

I had no interaction with the senior partner during the initial stage of the case.
I had no interaction with the senior partner during the pretrial conference.
I had no interaction with the senior partner during my client’s question and answer session.

The first hint I had that the senior partner knew it was me handling this case was when an associate in the firm asked an off-the-cuff question about whether I had ever brought a lawsuit before.

It was time for the anesthesiologist’s deposition; a question and answer session given under oath, in his attorney’s office. Except this one was done at the hospital’s offices.

I walked in.
I saw him immediately.
I knew who he was.
I wasn’t sure if he knew who I was or if he even remembered.
It was more than 20 years ago.

I was a junior in college when our case was tried.
In Nassau county.

It was more than 20 years ago when a jury turned us away.
Without anything.

I didn’t know if he remembered that trial.
I didn’t know if he’d make the connection.
I didn’t care.

I was there to question his doctor.
I was there to get the doctor to admit he violated the standard of care.
I was there to fully represent my injured client.

In the back of my mind I still wanted to know.
Two remarkable things happened during that pre-trial testimony.

The first, is that I got the doctor to admit that it was a departure from good medical practice to do what he did.

The second, is that the anesthesia doctor threw me for a loop when he explained how our theory of liability was totally wrong. Totally.

You see, according to this doctor, my client didn’t suffer an allergic reaction causing a heart attack. Instead, he gave the patient an anesthetic he never should have received. Then instead of going into the muscle, it went directly into the patient’s blood stream.

It was toxic.
It was not supposed to be administered into the bloodstream.
That’s what caused the immediate heart attack.

The doctor claimed he didn’t know my client was allergic to this medication.
He claimed he didn’t know there were paper medical records and also electronic medical records.
He never saw the pre-surgical testing records indicating his allergy.

“If I had seen he was allergic, I never would have given him this anesthetic injection. Had that not happened, the patient never would have had a heart attack.”

I got what I came for...

An admission by the doctor that
He didn’t know my client had an allergy,
Because of that, gave him an injection,
The injection was not administered properly (even though it is a recognized risk),
The toxic medicine was what caused the heart attack and not an allergic reaction.

After the pre-trial testimony was finished, the senior partner of this defense law firm asked if he could speak to me.

He actually congratulated me.
He said he’s never seen an attorney successfully switch theories of liability in the middle of testimony.
He said he was shocked his doctor admitted all that he did.

And then he asked.

“Are you related to Dr. Oginski, the obstetrician who died years ago?”

“Yes I am. I’m his son,” I answered.

He knew.
I knew.

He apologized to me.
Not for winning the case.
Not for being a good trial lawyer.

He apologized to me for my dad dying at such a young age.
He apologized to me for having to go through that when I was only 14.

He remembered.
He remembered my mom and how pretty she looked sitting in the back of the courtroom each day.
He remembered what a nice lady she was when he questioned her.
He remembered his closing argument in that case.
He remembered what a fierce opponent our lawyer was.

That conversation brought back a flood of memories, as I knew it would.

Remember, I was only 14.
I remembered the trial, those portions I was able to watch since I was in college taking final exams.
I remembered his words.
I remembered his argument.

I remembered he was kind as well.

I actually respected this senior partner.
He was a good man and an excellent attorney.

I didn’t harbor resentment toward him, but
I relished the opportunity to go up against him in this case.

How fascinating would it be if I tried this case against the same attorney who beat us in our own medical malpractice case!
I was hoping the case would go to trial.
I was hoping he’d be trying the case.

I would be ready.
I wanted to win.
If only to show that I was a better trial attorney than our famous trial lawyer who lost our case so many years ago.

Right before picking a jury, I settled this case.
It was the right thing to do.
I didn’t have the opportunity to try the case with the senior partner.

That was disappointing.
But this was the right thing to do.

I’ll never forget that trial.
I’ll never forget those attorneys.
The fact that I went up against this same defense lawyer 27 years later and came out ahead and earned his full respect, that was remarkable.

I’ll never forget.

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


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer