The answer is yes, you can.

You decide to sue your doctor.
For carelessness.
You claim his carelessness was a cause of your injury.
Your injuries are significant and permanent.

Your attorney hired a board certified medical expert who confirms that you have a valid case.

The defense disagrees.
Your doctor claims he did nothing wrong.
He also claims that if if he did something wrong, so did you.
He also argues that if he did something wrong, it did nothing to cause or contribute to your injuries.

He claims that if he did something wrong to cause you injury, your injuries are not as bad as you claim them to be.

During the course of your lawsuit your attorney is obligated to provide your medical records and permission slips to the defense.
The defense will take those permission slips to get more of your medical records from your treating doctors.
Likewise, the defense is required to turn over their medical records to you.
This process is known as"discovery."

During the discovery process, the defense will have an opportunity to question you in your attorney's office.

This is known as pretrial testimony.
Legally, this is known as a 'deposition' or or an 'examination before trial'.
This pretrial testimony carries the same exact weight as if you're testifying at trial.
The only difference is that this is taking place in your attorney's conference room.

There's no judge present.

There is no jury present.
However, there is a court reporter to record all of the questions you are asked and all the answers you give.
Those questions and answers are transcribed by the court reporter into a booklet known as a transcript.
In New York, a medical malpractice lawsuit typically takes 2 to 3 years to resolve from start to finish.

That does not include time to appeal your case which could add one to two years.

Going back to the headline of this article, you might be asking how it is possible for an injured patient to obtain a verdict against your doctor without ever going to trial?
The only way to do that is if your case is clear-cut.
The only way to do that is if your doctors' carelessness was so obvious that anyone could see it.
The only way is if it was so obvious that your doctors' carelessness was a cause of your injury.

Only then will you be able to ask the judge for a verdict in your favor without ever going to trial.

Let me share with you great example that will illustrate what I mean... 
Let's say you're scheduled to have surgery to your right hand.
This is an elective surgical procedure.
You agreed to have the surgery.

Your surgeon tells you that you should be out of the operating room in a few hours and back home by the end of the day.

Surgery to your hand goes well.
However, when you awaken in in the recovery room you realize you have a large bandage on your left shoulder.
You ask the nurse what happened to your shoulder.
She tells you you suffered a third degree burn to your shoulder during surgery.

How could this be? 

You went to the hospital for surgery to your right hand and came out with a third degree burn on your shoulder!
This should not have happened.
You were asleep during the surgery. 
You had no control over what happened in the operating room.

Your surgeon, the anesthesiologist, and two nurses were fully responsible and accountable for what happened to you while you were under anesthesia.

Your surgeon confirms that you suffered an accidental burn to your left shoulder during course of your surgery.
He apologizes and then brushes it off as if it's no big deal.
That makes you frustrated.
That makes you angry.

One of your doctors tell you that you will be left with a significant scar on your left shoulder.

You will likely need skin grafting to to repair this burn injury.
During the course of discovery we have an opportunity to question your doctor, the anesthesiologist and the two nurses who were in the operating room.
They all agree that the only surgery to be performed on you that day was to your right hand.
Each one of them agree that the burn injury to your left shoulder should not have happened.

This was an inadvertent mistake.

This was unintentional.
This happened when the cautery instrument was being passed from one side of the table to the other and the draping caught fire.
By the time anyone realized what the burning smell was, you had already suffered a significant burn injury to your shoulder.
Ironically, your doctor claimed he was not legally responsible for your injury.

The anesthesiologist said he was busy watching your vital signs and did not know this happened until I was too late.

The nurse who handed the cautery instrument to your surgeon did not see drape catch fire when the cautery device accidentally touched the draping.
In this instance, the carelessness is obvious.
You don't need a medical expert to explain how this injury occurred.
The mechanism of injury almost speaks for itself. 

Actually, the mechanism of injury actually does speak for itself.

There is a direct cause and effect here. 
In law, there is a fancy legal term that we learn in law school to describe this scenario.
It's called res ipsa loquitor.
All that really means is that "The thing speaks for itself."
Where it is so obvious that there was carelessness and the carelessness was a cause of your injury, then we ask the judge for an immediate verdict in your favor without needing to go to trial.

Legally, we are asking the judge for a decision in our favor.

We do that by making a motion for summary judgment.
In other words, we ask the judge for an immediate verdict in our favor.  
A 'motion' is nothing more than asking the judge to take action.
This type of request is typically made in written form.
This will allow the defense an opportunity to to reply to our request.

You should know that in these medical malpractice cases in New York, we are required to have a medical expert confirm

  1. Your doctor violated the basic standards of medical care,

  2. That his carelessness was a cause of your injury and

  3. That your injury is significant or permanent.

Only then are we permitted to bring a lawsuit on your behalf. 
If and when your case goes to trial, we are required to have on one or more medical experts testify on your behalf.
That is a requirement.
A qualified medical expert is needed to explain the medicine to the jury.

An expert must explain what your doctor did wrong.

He must explain what should have been done.
Our expert must explain the injuries you received because of your surgeons' wrongdoing.
Where the mechanism of injury is obvious and where your injuries are a direct result of that carelessness, it will not be necessary for us to bring in a medical expert.
It's so obvious.

Everyone on the jury knows that a burning hot cautery device shouldn't touch the patient drapes.

Everyone can understand how the drape caught fire.
You don't need to be a brain surgeon to understand the mechanism of injury.
However, there are very few instances where it is so obvious.
The example I raised above is one of them.
You should also know that even though, in this instance, we don't NEED to bring in a medical expert to testify at trial, you will find that the best trial attorneys in New York will still call a medical expert to testify on their behalf.

It's additional insurance.

It's done to bolster our claim.
It's done to help the jury understand why this should never have happened.
It's done to make the jury understands why this incident was careless and how it could have been prevented.
It's also done to reinforce to the jury exactly how damaging your injuries are.

Your expert can then explain how your injuries are permanent and disabling.

You should also know that when we ask a judge for an immediate verdict in our favor during the discovery process, we are required to submit all of our evidence to the judge.
This process is the same as if we were presenting our case at trial.
The only difference is that we are doing it in written form.
That means we must give the judge all of the proof needed to show that we are more likely right than wrong that what we are claiming is true.

That means we must give the judge all the medical records that we would introduce at the time of trial.

We must provide the judge with pre-trial testimony to show the judge exactly what happened from the people who were there.
We must show the judge that you had no control over what happened.
We must show that you did not cause or contribute to your injuries. 
In the example above, you were alseep, under anesthesia.

We will also show that in the absence of negligence, your injury would not have occurred.

The law requires us to submit proof 'in admissible form' in order for the judge to consider it.
What that really means is is that it requires the same authentication as if we were trying to introduce evidence at trial.
That means we must explain the chain of custody of your medical records.
We must get your records certified as being true and accurate photocopies of the originals.

The pretrial sworn testimony that was transcribed into transcripts must also be submitted to the judge to evaluate. 

If we choose to to have a medical expert support our claim, even though the mechanism of injury is so obvious, we must get our expert to submit a sworn document explaining his opinions and conclusions.
If we are able to show that we are more likely right than wrong that what we are claiming is true, then the judge will likely agree with us and give us a verdict in our favor.
You need to know that this will not end your lawsuit!
Even if the judge agrees with you and gives you a decision in your favor, your case is not over yet. 

Instead, you have simply short-circuited the lawsuit process.

You have been able to determine who is legally responsible for your injury.
The judge has determined that your doctor and hospital staff are legally responsible for causing you harm.
That means that the only issue left in your case is for a jury to determine how much money you are to receive as compensation for your injuries.
This verdict already establishes that your doctor was careless and his carelessness caused you harm.

That means at trial, the jury no longer has to evaluate who is legally responsible for your injury.

That means the judge will set your case down for trial on damages only.
That means your attorney will pick a jury consisting of six members of the community to sit in judgment.
The only issues for the jury to evaluate will be how much money you are to receive for each element of damages you are claiming.
There are different types of damages for the jury to evaluate.

You might have a claim for lost wages.

Wages you lost because you couldn't return to work.
Legally, that would be known as a claim for past lost income.
Maybe you have significant medical expenses that your health insurance didn't cover.
You likely will have a claim for the suffering and the pain you endured from the time of the malpractice until the time of trial.

Legally, that's known as past pain and suffering.

If your injuries are permanent, you will also have a claim for the suffering and pain you can be expected to endure into the forseeable future.
At the beginning of your trial, the jury will be told that you have already established that your doctor and hospital staff were legally responsible for causing your injuries.
You need to know that the defense we'll do everything possible to try and minimize the extent of your injuries.  

To learn why the Judge might refuse to dismiss your case at trial, I invite you watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer