There were six people seated around the conference room table. 

The mediator said "Mr. Oginski, the floor is yours."

I was now standing. The other six were seated.

We were only weeks away from trial.

Seated before me were two very formidable defense lawyers.

Seated next to them were medical malpractice insurance company representatives.

On the other side of the table was my client; a once vibrant woman.

At the head of the table was the mediator.

In case you don't know, a mediator is someone with many years of experience as an attorney and possibly also as a judge.

A mediator is there to try and guide the litigants to resolve their differences and possibly resolve this lawsuit prior to trial.

I had prepared for weeks.

I was really preparing for trial.

I prepared for opening remarks.

I prepared for direct examination of my client.

I prepared for cross-examination of the eye doctor who took my client's vision from her.

I prepared my ophthalmology expert for trial.

I prepared for a direct examination of my expert; where I get to ask my expert open-ended questions so he can explain to the jury what happened and why.

I prepared for cross examination of the defense's medical experts.

I knew they were planning on calling three different eye experts to testify.

I knew because they told me.

Don't be shocked.

That's what happens in civil lawsuits here in New York.

Each side is required to tell the other side that we have retained various medical experts to testify. We have to share our experts' credentials with the other side. We also have to tell them what each expert will say when he testifies.

That's how I knew the defense had three experts coming in to testify.

Here was our claim in a nutshell:

  1. This patient NEVER should have had cataract surgery.
  2. The cataract surgery NEVER should have been recommended.
  3. There was no need to perform the cataract surgery.
  4. The surgery was done improperly.
  5. The complications were a sole result of the doctor being careless during cataract surgery.
  6. The patient lost vision as a direct result of her eye doctor violating the basic standards of medical care.

In the weeks leading up to trial, my expert confirmed, once again, that we had a solid case. He confirmed that we were more likely right than wrong that what this eye doctor did violated the basic standards of care and as a result, she lost her eyesight.

Within this same time frame, the defense attorneys reached out to me to see if I would be interested in trying to mediate this case before we got to trial.

My answer was "Yes."

Agreeing to mediation can have many strategic advantages...for both sides.

The biggest advantage is that your opponent lays his cards on the table and reveals some/many strategies that will arise during trial if the case cannot be resolved during mediation.

Likewise, the defense gets to see what's up our sleeve as well.

The added benefit is that there is the chance we will settle the case during mediation. However, if we can't, then each side has learned some useful strategies that will pop up during trial.

The defense knew what my client's injuries were.

The defense knew what our claims were.

The defense didn't know how I'd present this argument.

The defense didn't know what my strongest argument would be.

I gave a 15 minute opening argument that really was a condensed version of what I expected to give if we were to go to trial.

It was passionate.

It was strong.

It showed, in easy-to-understand language, that the eye doctor was clearly careless.

I used exhibits.

I used photos.

I introduced my client and asked everyone to look into her eyes.

I laid out my case, step by step.

Here's what prompted her to go to the eye doctor in the first place...

She was driving one day when she realized that reading the highway sign was a little blurry. Not a big deal.

Her vision wasn't really bothering her.

When she got around to making an appointment to see her eye doctor, her vision wasn't that bad. It wasn't perfect, but she really had no problem living with it.

Her eye doctor told her she had a cataract.

"What's that?" you ask.

It's a clouding of the lens of the eye.

He recommended that she have cataract surgery.

During this surgery, the doctor literally removes your existing lens in your eye and replaces it with another. It's called an intra-occular lens.

Before the surgery, the surgeon must calculate the specific power of the lens in order to know which one will work for her eye.

He did that in the office. Then he double checked it.

Then, during surgery, he checked it again.

He removed the lens in her eye and replaced it with a brand new intra-occular lens. One that was just for her.

There were no complications...yet.

The next day, she returned to his office to check on her progress.

When the eye doctor removed the eye patch, the patient said she couldn't really see. Only dark shapes.

The eye doctor checked her eye gave her drops and told her to return the following week.

When she returns, her vision is no better.

He suspected that he inserted the wrong power lens.

He couldn't put his finger on it, but the strength of the lens was not correct for her vision.

That's bad.

That's really bad.

He told her she needed surgery immediately.

He told her he would take out the intra-ocular lens and replace it with one that had a different strength.

She immediately agreed.

During the second eye surgery, the doctor had significant difficulty removing the original intra-ocular lens that he put in two weeks earlier.

It broke apart.

In attempting to remove it, he damaged part of her eye.

He then swapped it out for a new strength intra-ocular lens.

He then patched her up and told her to return again the following day.

She followed his instructions to the letter.

When he removed the patch, her vision was even worse than before.

She now had no usable vision in that eye.

Further evaluation by corneal and retinal specialists revealed that she had significant damage to her cornea and to her retina.

One of her doctors told her she needed a corneal transplant.

Her doctors told her she would never see out of that eye again.

One of her doctors asked her why she had cataract surgery in the first place.

He had reviewed the original eye doctor's medical records, and he could not find any justification for why she had the original cataract surgery.

She explained what originally brought her to the eye doctor and what he recommended on that same visit.

The specialist who raised this issue simply shook his head as if to say this should never have happened.

When I reviewed the records and had my board certified ophthalmologist review the records, the first thing he said to me was “This patient never was a candidate for cataract surgery.”

She could have gone on living the way she did for many years without a problem.

Instead this hotshot eye doctor convinced the patient that she needed cataract surgery immediately and then miscalculated the power of the lens.

Once he recognizes that he may have put in an incorrect powered lens, he decides to correctly swap out the lens.

The problem was that he encountered severe difficulty in removing the original lens and replacing it with the correct powered the lens.

All of these were violations of the basic standards of good medical care. They were also directly responsible for this patient's loss of vision.

Let's get back to my opening remarks during mediation...

When I finished my passionate mini opening argument to the six people seated in front of me, it was obvious I had made an impression on all of them except for one of the diehard veteran defense lawyers.

As soon as I sat down, his diehard defense lawyer had no choice but to try and minimize the effect I had just cast over these other players at the table.

From a seated position, he simply looked around the room and said “That was a very nice impassioned plea from plaintiff's attorney, but that's more appropriate for trial.

Let's get down to the issue of why his client really isn't as badly injured as they claim her to be.

His strategy was to immediately try and defuse my heartfelt argument.

He wanted to get to the cold, hard fact that his client, the ophthalmologist, did what he felt was medically appropriate at the time.

He argued that it was a judgment call to recommend having this surgical procedure. Using his best medical judgment, he said it was totally appropriate for the eye doctor to recommend cataract surgery.

He also argued that the doctor's calculations were repeatedly correct not once, not twice, but three times.

He claimed that because of some aberration in the patient's prior medical history, that caused some problems with her post-operative vision that had nothing to do with his treatment.

**This was a novel argument I had not heard from the defense before. I now knew one key argument they were using to defend this case. That was helpful as now I could create a counter-strategy to this attack.**

He argued that even in the best of care, this type of problem can arise and it's also a known, recognized risk of the procedure.

**This argument is a standard one that defense lawyers make in any surgery malpractice case. I didn't think this was their strongest defense argument.**

He also argued, without any passion whatsoever, that the difficulty his eye doctor encountered when removing the first intra-ocular lens and swapping it out with the second, was also a known complication having nothing to do with his surgical or medical abilities.

He claimed that there was no way to predict this complication would occur and finally claimed that this was an unfortunate complication that occurred through no fault of his client.

**This is also a well-worn defense argument. It can often make a lot of sense, especially when you have a jury filled with people who believe that their doctors can do no wrong.**

This defense lawyer's argument took no more than seven minutes.

The next attorney, representing the hospital, had no real argument at all.

Instead, he simply wanted to contrast how short his defense argument would be by telling everyone at the table that "Unlike plaintiff's attorney and the other defense attorney who just spoke," he would be extremely brief and no more than two or three minutes.

His goal was to simply state that according to their medical expert, the hospital did nothing wrong and their actions did not cause or contribute to the patient's blindness.

**I want to share a secret with you that concerns these opening remarks made during mediation...**

These served a two-pronged purpose.

The first is really show and tell for my client who was present at the mediation, as well as for the insurance representatives. It gives the attorneys an opportunity to show off their knowledge and expertise in front of their clients.

It also gives the mediator a better understanding of what the claims are and what the defense arguments are.

After these opening remarks, we then split into two groups.

My client and I go into a separate conference room.

The defense lawyers along with their insurance representatives, stay in a separate conference room.

The mediator then begins what I call shuttle diplomacy.

He will likely start off with the defense to see how much money, if any, they're willing to offer to start the negotiations.

Once he obtains a settlement offer, the mediator makes his way over to our conference room to discuss the defense's offer.

This shuttle diplomacy, which is really negotiation, took place over three hours in a high-rise building in midtown Manhattan.

For three long hard fought hours, each side pressed their case about why the defense should offer more money, and why we as the plaintiff should accept less money.

It was obvious to me and to the mediator that the defense was bluffing about going to trial. I didn't think their experts would really say what they were claiming. However, they did everything by the book during the mediation.

They argued they'd try the case if they had to. They argued that they had a stronger argument that we did.

I pointed out that they didn't and it was my client who was blind in one eye, not the other way around.

The defense finally recognized that the risk of going to trial far outweighed taking a jury verdict and letting a group of six members of the community reach a decision about whether we were more likely right than wrong.

Their assessment, in my opinion was correct.

I am pleased to report that my client finally agreed to accept an appropriate settlement offer from the defense.

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

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer