Yes, we can agree that you COULD have died.
We an agree that you might have died.
We can also agree that you almost died.
But the fact remains that you DIDN'T.
I suppose she was upset that she was still alive.
I guess she was frustrated that the doctor's handiwork didn't finish her off.
Actually, that's not why she was upset.
She was upset because I wouldn't take her case.
She was upset because no attorney wanted to take her case.
She was confused why, if the doctor ALMOST killed her, why no attorney felt she had a valid case.
Not one single attorney wanted her case.
Not one wanted to invest their time to investigate her case.
Not one wanted to invest their money and time to review her case.
Want to know why?
It's because she had no damages.
No physical damages anyway.
No permanent injury.
No physical disability.
Nothing that would prevent her from doing her daily activities.
She kept trying to explain, at a higher and higher pitch, that because her doctor did something wrong, he must pay for his wrongdoing.
It's understandable why she felt this way.
Many people think this way.
The problem is that it's only part of what we look at to see if you have a valid case.
In fact, it's the first part.
You see, the first thing an experienced attorney will look at in a medical malpractice case is to see if your doctor violated the basic standards of medical care.
Did he do something he shouldn't have done?
Did he fail to do something he should have done?
Did he fail to recognize or diagnose your problem in a timely manner?
If my medical expert says yes, then I look to the next part of the equation.
That's known legally as causation.
Causation is that link that connects the wrongdoing to your injury.
Put another way...what was the sequence of events that caused you to suffer permanent harm?
It's the bridge that connects your doctor's carelessness and your injury.
If my expert confirms that your doctor's wrongdoing was a cause of your injury, then we've now confirmed two out of the three elements needed to show you have a valid case.
The next thing we need to establish is your injury.
Is it permanent?
Is it physical?
Is it psychological?
Is it disabling?
How will your injuries affect you for the rest of your life?
What hard economic losses will you experience?
What type of physical pain and suffering can you be expected to endure because of your doctor's carelessness?
If my expert confirms all three of those things, then we have a basis to start lawsuit on your behalf.
If one of those three elements is missing, then by law we are prohibited from starting your lawsuit.
Now, let's get back to that phone call I describe in the headline.
She told me how her doctor screwed up.
Ok. That sounds like he might have violated the basic standards of medical care.
That would take care of the first element we need to show you have a valid case.
Then she told me she was kept in the hospital overnight.
She claimed the nurses failed to treat her appropriately and failed to timely give her the medications she needed to live.
I was having trouble understanding how her doctor's carelessness caused or contributed to any injury.
I said "What physical injury did you suffer?"
Her answer was not reassuring.
"What do you mean what physical injury? They didn't give me my medication when they were supposed to! They kept me overnight when I shouldn't have been in the hospital at all! I almost died!" she screeched.
She was highly offended that I asked her what physical injury she suffered.
Her dignity was clearly offended.
She felt these perceived slights rose to the level of a physical injury.
I then asked "Has any doctor confirmed that your injuries are permanent or physically disabling?"
There was a momentary silence.
Then more screeching.
"I ALMOST DIED! DIDN'T YOU HEAR ME! If they didn't finally give me my medication, I would be dead now. Is that what you want? Would you take my case if I had died?" she asked in total bewilderment.
She didn't understand.
I asked a different question.
"Has any doctor confirmed your belief that something was done wrong?"
Again, that stopped her cold.
She hadn't considered that.
"Uhh, no," she said haltingly.
"Are you physically unable to do those things you used to do, because of whatever was done to you at the doctor's office or the hospital?"
"Uh, no," she again said with uncertainty.
"Do you have any psychological problem now because of what was done to you?"
That question started her on a long-winded narrative that I knew was trouble.
She wanted to get it off her chest.
She thought I was a therapist.
She thought the more she talked, the more I'd be interested in taking her case.
I had to interrupt.
"Have you previously been under a psychiatrist's care or a psychologist's care?"
I knew the answer before she said it.
"Why, yes. How did you know?" she asked.
"Just a hunch," I said.
Here's what I told her...
"ALMOST" doesn't count in a civil lawsuit in New York.
"COULD HAVE DIED" also doesn't count.
"MIGHT HAVE DIED" doesn't count either.
Either you did or you didn't.
It's black or white.
There's no grey.
Either you died or you didn't.
If you died, we wouldn't be having this conversation. I'd be having it with one of your surviving family members.
If you didn't, well, congratulations are in order.
You're still with us and I'm really glad to hear that.
No matter what was done or not done to you, if you don't have any long term physical injury, then I will not be able to help you.
It doesn't mean your didn't didn't screw up.
It doesn't mean he treated you appropriately.
Instead, it means that the third element you need to prove you have a valid case is missing.
That's all it means.
You might be able to show your doctor was careless.
You might even be able to show his carelessness was a cause of your injury.
However, if your injury is not significant and/ or permanent, you're missing the third and last element needed to show you have a good medical malpractice case here in New York.
That's why you'll find that the best attorneys in NY will not take on a case like this.
Now, before you go leaving me crazy comments about how unfair this is to an injured patient, you need to know this...
You may still have a valid case.
You might have psychological injuries resulting from your careless doctor.
Even if you have a history of psychological problems, this may have made your condition worse.
For me, I will not take on a case that has only psychological injuries.
There are attorneys in New York who will.
You've got to find them if that's your only injury.
So, to get back to the original headline of this article, the fact that she "ALMOST" died doesn't establish that her doctor was careless. Nor does it establish that her doctor's carelessness was a cause of her injury. Finally, since she didn't die and has no physical injury, that fact that she "COULD HAVE DIED" makes no difference when evaluating a possible case.