His doctor said he needed the surgery. The doctor told him it would be routine. This type of surgery was done every single day, and there would be no problems or complications.

The patient trusted his doctor. He'd been going to him for years. No reason not to believe him. The doctor was comforting. He was reassuring. He told him everything would be fine.

Except it wasn't.

During surgery, while the patient was under anesthesia, there was a significant complication. The doctor tried to fix the complication during surgery, but it wasn't helping. The patient went into cardiac arrest, and despite resuscitative efforts, the patient died on the table while still in surgery.

The doctor came out of surgery looking devastated. He approached the wife and told her there was a terrible complication and her husband had died during surgery.

It turns out the doctor inadvertently cut the aorta during surgery and the patient bled to death. This never should have happened. The surgical site was nowhere near the aorta, which is the largest blood vessel in the body.

The wife tried desperately to hire the best attorneys in New York to represent her. Not a single lawyer wanted to touch her case. Want to know why?

Here are the key reasons why no one wanted her case:

  1. Her husband was elderly and was not earning a living. That means that there is no lost earnings claim possible.
  2. Her husband was also receiving Medicare, and Medicare paid the medical bills. That means there would probably be a lien against the proceeds of any lawsuit which would reduce the amount that the family would be able to recover if their lawsuit was successful.
  3. The biggest problem from a legal standpoint was that this patient died during the course of surgery. What that means is that he was never conscious and aware of what was happening to him. That means there would be no claim for conscious pain and suffering which is typically the biggest part of any medical malpractice or accident lawsuit in New York.

In order to bring a claim for pain and suffering, we must be able to show that the injured victim had some level of conscious pain and awareness of what was happening to them in order to justify an award by a jury.

When a patient is under anesthesia and suffers a terrible complication that results in death, it is extremely challenging, if not impossible, to show that the patient was conscious and had some level of awareness of the impending doom that was happening and would likely kill him.

Since no one was able to show that this man had any conscious level of pain and suffering, none of the best attorneys in New York wanted to touch this case. Also, since he was not supporting anyone financially, there could be no claim for pecuniar loss (financial loss) that could be brought on behalf of the family. The only remaining claim that was available was the loss of a spouse and a parent, which though viable, is much less significant than one for pain and suffering. 

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer