Seems like a simple question, right?

First, in order to answer that question I have to explain a few things.

In order to show that you are entitled to a verdict in your favor, we have to show that you are more likely right than wrong that what you are claiming is true.

(1) We have to show that your doctor was careless.

(2) We have to show that his carelessness was a cause of your injury.

(3) We have to show that your injury was significant and/or permanent.

All those things have to be confirmed by a medical expert.

An expert who has reviewed all of your records.

You might think that just because we have a medical expert who says we have a valid case automatically means that we win.

Not true.

That would be nice, but that's not how it works.

Just because we're presenting evidence that we have a good case doesn't mean the defense rolls over and agrees.

In fact, the defense rarely agrees on anything.

We say the sky is blue.

They say the sky is yellow.

We say it's 10:00 a.m., they say it's 2:00 p.m.

We say it's not the standard of care to do what he did.

They say it is.

Here are typical defense arguments...

"Whoa, hold on there slugger...we did nothing wrong!"

"Ok, maybe we did something wrong, but so did you!"

"Even if we did something wrong, that's not what caused your injuries."

"Anyway, regardless of what we did and regardless of what you did, your injuries are not really as bad as you claim them to be."

These defenses show up in every single medical malpractice case.

They use these defenses automatically, regardless of the actual facts.

Then, they will whittle down their defenses to fit the facts of your case.

The defense will use these arguments to minimize their responsibility.

They will also use these arguments to minimize the value of your case.

You should know that the majority of medical malpractice cases in New York settle prior to trial.

Of those cases that cannot be settled and go to trial, the majority of those that go to verdict are won by doctors and hospitals.

That is an eye-opening statistic.

What that means is that most jurors like doctors and hospitals.

They place their trust in doctors and hospitals.

They put their lives in their hands.

Unless there is clear cut wrongdoing that resulted in terrible injuries, it becomes challenging for a jury to believe that a doctor or hospital staff violated the basic standards of medical care causing significant harm and injury.

By the way, in case you think that you have to show 'beyond a reasonable doubt' that you're entitled to a verdict, that would be incorrect.

“Beyond a reasonable doubt” is the standard by which a prosecutor has to show that the person accused of a crime committed the crime.

That requirement has nothing to do with a civil lawsuit involving a patient trying to obtain money as a form of compensation for her injuries.

You should know that in New York an injured victim really does not have to prove anything.

We only have to show that we are slightly more likely right than wrong.

That means we only have to tip the scales of justice ever so slightly in our favor in order to justify a verdict in your favor.

During jury selection, potential jurors sometimes ask whether they have to sit and deliberate for days and weeks to make absolutely certain that what you are claiming is true.

"Do we have to sit around for days or even weeks making 100% certain that your claim is true?"

The reality is that they don't.

The jury is told that they don't have to be 100% sure that what we are claiming is true.

While we cannot discuss the details of the law during jury selection, we tell the jury in broad terms, that we only have to tip the scales slightly in our favor in order to obtain a verdict in our favor.

That means that if they believe by only 50.1% that what you are claiming is true...that your doctor was careless and his carelessness caused you injury, then the jury must give you a verdict in your favor.

On the other hand, if the jury is torn and they are split 50-50, then the law requires that they give the verdict to your doctor.

Here's a great football analogy to make this crystal clear.

Let's say your teammate has the football and is running to the end zone for a goal.

He does not have to get the entire football into the end zone in order to score.

He only needs to get the tip over the line in order to get that goal.

He scores a touchdown regardless of whether the tip of the ball is over the line or whether the entire ball is in the end zone. 

Same thing applies here.

We don't have to go all the way into the end zone to justify a verdict.

We only have to tip the scales, just slightly, in our favor.

You might be asking exactly how do we do that?

We do that with our evidence.

We do that with our testimony.

We do that with the witnesses that we call to testify.

We ask the jury to rely on all of the evidence that we present to show that we are slightly more likely right than wrong.

We must bring in medical experts to testify and explain why and how your doctor violated the basic standards of medical care.

Legally, that's known as showing liability.

We are arguing that your doctor departed from good medical care when treating you.

In fact, one of the first questions the jury has to decide is whether your doctor was careless.

"Was Dr. Jones negligent? YES OR NO," is a question they'll likely find on the jury sheet.

They must ask themselves whether your doctor is legally responsible for the injuries you suffered.

In order to reach that conclusion, they must evaluate the standard of care were and whether your doctor violated those standards of care.

Naturally, our expert is going to testify that your doctor did violate the basic standards of medical care.

Legally, we say that he departed from good and accepted medical practice.

The defense expert argues that your doctor did nothing wrong and did not violate the standard of care.

The jury will decide which of the experts they believe.

The jury will decide who is telling the truth.

The jury will decide who is shading the truth.

We must also show that your doctor's wrongdoing was a cause of your injury.

Legally, this is known as causation.

That's the link that connects his carelessness with your injury.

There must be a link to connect his wrongdoing with the injuries you suffered.

Let's say your doctor was careless.

But his carelessness didn't cause you injury.

Then we can't show that you deserve a verdict in your favor.

There may be other plausible explanations for why and how you suffered your injuries.

If there is no connecting link, then you're out of luck.

The jury will never get to determine how much money you are to receive.

That means you will have lost your case.

It means the doctor will have won.

If the jury determines that your doctor was careless and his carelessness was a cause of your injury, then the jury is obligated to decide how much money you will get to fully compensate you for all your damages.

On the subject of 'damages' there are different types.

There are economic damages.

Those are damages that can be calculated.

For example, if you have been unable to work since this incident, we can calculate that you've been out of work for two years.

We know how much money you earned each year in your job.

We can calculate how much money you lost from work because you couldn't work.

We can calculate how much money you will lose in the future because you can no longer work.

We can figure out your fringe benefits and how much you lost up until your trial and how much you'll lose in the future.

We know what your medical expenses have been.

We can calculate your future medical expenses with expert testimony.

Then there's something called non-economic damages the jury must consider.

That's a fancy legal term for damages that cannot be easily calculated.

I'm talking about your pain and the suffering you endured.

From the time of this malpractice until the time of your trial.

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

The jury will also evaluate your 'future pain and suffering'.

They will determine for how many years you can expect to have problems related to these injuries.

The jury is told to consider each damages component separately and individually.

The jury will also be told what your life expectancy will be statistically in order to determine for how many years this future amount of damages should apply.

For example, if the jury decides that you will live another 30 years, the jury might decide that you are entitled to receive $500,000 for each year for the next 30 years.

Winning your medical malpractice case is not as simple as the jury checking off a box saying “you win.”

They don't go home after coming to that conclusion.

A jury's verdict is made up of a number of different answers to questions they must answer.

You see, at the end of the trial the judge instructs the jury on how they reach their verdict.

He tells them they will have a series of questions to answer.

The answer to each question will either take them to the next question or they will stop what they are doing and that's the end of the case.

The judge tells the jury that they are to make their decisions without any regard for who their verdict helps or who their verdict hurts.

They are not to consider sympathy.

They are not to consider sympathy for the injured patient.

Nor are they to consider sympathy for the doctor who is being sued.

Remember earlier in this article I talked about credibility?

I mentioned that the jury will decide which witnesses are telling the truth and which are not.

One of the legal instructions the judge tells the jury has to do with credibility.

The attorneys know this instruction has a fancy Latin name: “Falsus in Uno.”

This little instruction has a significant impact on how the jury views credibility of witnesses.

That instruction says that if you find a witness has testified falsely about one thing, you can disregard some or all of their testimony.


Because if a witness has lied about one thing, there's a good chance he's lied about other things as well.

If the jury determines that a witness has lied, they can disregard some or all of his testimony.

That can make or break your case.

Hopefully you now have a better understanding of what it takes to win your medical malpractice case here in New York.

To learn more about credibility and why an attorney who reads opening arguments at trial loses credibility, I invite you watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer