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I Took My 12 Year Old Son to Court with me Two Weeks Ago. He was shocked and fascinated by two things I showed him...

I took my son David to court with me two weeks ago. I showed him something in the law library that stunned him.

He was still on summer vacation.

I had a court conference and asked him if he'd like to join me. He eagerly said "Yes."

My son is 12 years old.

He asked what he should wear. I told him to put on a polo shirt and nice pants with dressy shoes.

He asked if he could wear a t-shirt and shorts. I said "Yes, but I'd like you to dress up a little. I'll show you around the court house and you'll feel better if you're a bit dressier than just wearing a t-shirt and shorts."

He said "Ok," and off we went.

To Nassau County Supreme Court in Mineola, NY.

It was the end of the summer and I suspected that there wasn't much action going on in the court house. Upon our arrival, I recognized immediately it was very quiet. The jury room, ordinarily packed with hundreds of potential jurors was totally empty. Not a single person sitting around waiting to be called. Unusual for a court house, but this was the end of the summer.

We then walked up three flights of stairs (it's much quicker than waiting for the elevator).

The trial courts are found on the third and fourth floors. You can find many courtrooms to the right and left of the staircase. I told David we'd walk the halls of both floors to see if there were any active trials going on as soon as we were done with this status conference.

We walked into our assigned courtroom.

It was busy with many lawyers sitting and standing around, waiting for their case to be called.

I saw my adversaries immediately and asked if they checked in with the court clerk. They had. I asked David to join me as I walked over to the court clerk to check in. David chose to wait in the back and take a seat. I urged him to walk up with me. This was the first time he was in a courtroom and I think it was a bit intimidating for him. I let him sit for a few moments while I checked in.

It looked like the judge was already moving quickly through her status conferences and I didn't expect to wait long. Thank goodness for that.

There are many times where we must wait literally hours to see the judge and advise him or her about the status of a case.

I sat down next to David on the benches at the back of the courtroom.

I explained that all these lawyers were just waiting to talk to the judge about what's going on with their case. The judge wants to know what's still left to do on each case and if the attorneys need the judge to intervene with discovery.

I asked David to join me when I went up to the bench to talk to the judge with the other two attorneys. He was unsure and finally decided he'd just watch from the back. I asked him again. He said "No, I'll wait here."

"Ok," I told him. I'll be done in a minute.

My conversation with the judge and my two opponents lasted no more than two minutes standing at the bench in the courtroom. Once I had gotten a new date to return for a status conference, I thanked the judge and made my way back David where he eagerly asked what we discussed. I told him that if he had come up to the bench with me, he'd have heard everything. I would even have introduced him to the judge.

I then explained that I didn't need anything and the defense attorneys asked for one or two things including a physical exam of my client and an additional record request. "No problem," I told the judge. With that, David and I left the courtoom to start hunting a courtroom with an active trial going on.

I wanted him to see cross-examination. I wanted him to see opening arguments.

Despite my desire to show him something exciting, there were no trials going on anywhere in the court house. None. Nothing. It was summer. The end of summer to be exact and nothing was happening. Bummer. But all was not lost. I still had two things up my sleeve that I wanted to show him.

First, I took him to the law library on the second floor. It's open to the public and attorneys.

We walked in. You could smell the law books. It always has that stale book odor, especially really old law books. It was really quiet. Some people were scattered about reading. We walked to the end of the library and then I asked him to come with me as we searched for a stack containing some law books called the New York Supplement.

"David, come here and help me look for volume 499 New York Supplement 2nd," I said.

It took two minutes to find the volume I was searching for. I was looking specifically for a case with the legal citation 499 N.Y.S.2d 695. It's also reported as 115 A.D.2d 463 (1985).

I pulled the law book from the stack and handed it to David. I asked him to find page 695.

He started thumbing through the book and stopped at page 695. I asked him if he saw his name anywhere on that page.

He looked at the page, then looked at me with a confused look and asked why our last name appears on that page.

That began a conversation that lasted all morning.

What I pointed him to and what he found was a case that made it's way to the Appellate Division of the State of New York. The case name was Oginski v. Rosenberg499 N.Y.S.2d 695, 115 A.D.2d 463 (1985). To be specific, the case name was 

Miriam Oginski, Individually and as Personal Representative of Joseph Oginski, Deceased, Appellant,
v.
Allan Rosenberg et al., Respondents

Now he was even more confused. 

Let me explain...

Miriam, my mom, was David's grandmother.

Joseph, my dad, was David's grandfather.

David never knew either of them as they both died before he was born.

David's older brother, Joseph, was named after my dad.

So here we are, in Nassau County Supreme Court, in the law library, pulling out an old law book that has names that were very familiar yet strangely unfamiliar to David.

Ok...

Hold that thought for a moment. I'll get back to this story as soon as I finish telling you where we went next.

Since there was no real court action going on in the civil court house, David asked if there's a criminal court house we might go into and walk around. There was. Across the street. "Let's go," I said.

As we approached the criminal court building, there were many news vans outside with TV cameras and microphones set up outside. This looked promising.

Upon entering the building I asked the court officer if there were any trials going on. He mentioned the only thing happening was a sentencing and there was lots of activity surrounding that. Off we went.

We walked into the courtroom. It was packed. Lots of activity.

News reporters on the left side. Family members sitting in the middle in front of us. Police behind us and to the side. Members of the public were there to watch. We had no idea what was going on or what crime this person was being sentenced for.

In fifteen minutes we did. It was gut-wrenching. It was horrible. It was remarkably sad.

The prosecutor started off by explaining how this guy, now 19, was 17 years old and driving with four of his friends in his car. He was speeding on the Southern State Parkway on Long Island two years earlier at 110 miles per hour, while high on marijuana. He lost control of his car and plowed into a tree, killing all four of his passengers. The driver, now awaiting sentencing, was barely injured.

The prosecutor said this teen had no remorse and looked forward to his 15 minutes of fame, according to a jailhouse recording.

The mother of one of the young men who died in the car gave a heart-wrenching description to the judge about what her life was like without her son. This is known as a victim-impact statement.

Just as the judge was about to impose his sentence on this young man, David turned to me and said "Let's get out of here. I can't take it...it's so sad."

That's exactly what we did. We got up and left.

There were cameramen and news reporters standing right outside the courtroom waiting to report on the sentence he would receive. He had already been found guilty of the top count but the jury had gotten hung up on whether he was driving while impaired. Realizing his chances at a retrial were not good, he agreed to a guilty plea on all charges.

As David and I walked out of the court house he turned to me and said something remarkable.

"Dad, did you see when the mother was telling the judge about how wonderful her son was and how her life has been destroyed because of the horrible act this man did, driving recklessly and high on drugs, the man sitting at the defense table awaiting his sentencing never once looked at this woman pouring her heart out to the judge and the courtroom."

I noticed that too.

Remarkably, this woman's son, was best friends with the man who was now going to jail for many years. "You're right David. He never looked at her or acknowledged her. How sad."

I told David that this case would make all the news stations and be online later today. It was big news here on Long Island.

Turns out, the judge gave this guy 5-15 years in jail for what he did.

Now, let's get back to the law library story...

To understand what I'm about to tell you, I need to take you back to 1978.

Dad was a doctor. An obstetrican and gynecologist.

Me?

I was 14 years old then. In 10th grade. In high school here in Great Neck. Great Neck North to be exact.

I was on the soccer team and about to head home that evening. It was September 1978.

Mom was supposed to pick me up after soccer practice. She was late. I called home and learned she'd be there soon. There was a problem. Dad was in the hospital. He'd had a heart attack.

Dad was only 46 years old.

On September 29, 1978 my dad died. I was only 14. My brothers were 12 and 9.

My mother believed in her heart that the doctors did something wrong that caused and contributed to my father's untimely death.

At that time, I didn't even know what a lawyer did. I had no idea there was something called medical malpractice. I had no idea that if you felt a doctor did something wrong, you could bring some sort of lawsuit to obtain compensation for the harms and losses that we suffered.

As I write this, it is only a few days after Joan Rivers, the comedian, has died.

For those who are following the events that occurred in New York, Joan Rivers went in for some sort of throat procedure at an endoscopy center on the upper East side of New York City. During the course of her procedure she went into either respiratory arrest and/or cardiac arrest and lapsed into a coma. She was rushed to Mount Sinai Hospital where she remained in a coma for approximately 8 days. Her daughter, Melissa Rivers finally removed her from life support and her mom tragically died.

During the week that Joan Rivers was in the hospital, there were news reports and indicating that Melissa Rivers was furious at what happened to her mother and believed that it was medical carlessness that put her mother in that comatose condition.

The news outlets reported that the family was considering bringing a medical malpractice case while she remained on life support.

Myy mother too suspected that something was done wrong after dad died.

She hired a famous New York attorney to investigate and look into dad's untimely death. After conducting a thorough investigation, the attorney my mother retained told her that she had a valid wrongful death case arising out improper medical care. He told her that he had medical experts to support our claim and that they were going to go forward with a wrongful death lawsuit.

Almost three years later, our case came on for trial in Nassau County Supreme Court in December 1983. That's the exact court house where David and I were now standing.

At that time, I was a junior in college in the middle of my final exams.

Our trial lasted three weeks ending close to Christmas. I wanted to be at the trial with my mother but only had two opportunities to be there because I was studying for final exams.

Watching cross examination in our case and observing closing arguments changed the course and direction of my life. For the better.

Up until that point, I had intended on going to medical school and becoming a doctor like my father and his father before him. I intended on becoming a physician like my three cousins who were in six year medical programs, my uncle and my cousin's husband who all considered medicine to be a noble profession. Yet there was something inside of me, even before this trial, that kept telling me that medicine just wasn't in the cards for me.

The turning point came during closing arguments.

I had a chance to listen to the two defense attorneys make closing remarks to the jury. Both of the defense attorneys were veteran lawyers in practice for many many years. One lawyer was obnoxious, egotistical and condescending. He represented the hospital.

The other attorney was gentlemanly, fatherly, knowledgeable and always polite. He represented the cardiologist that my mother was also suing. Out of the two defense attorneys, I thought that the lawyer representing the cardiologist was the better lawyer. He raised a good argument.

Before I share with you what the closing arguments were, it might be helpful for you to understand what the claims were in the case.

A few days before my dad died he developed a urinary tract infection a number of days after suffering his heart attack. Dad was allergic to penicillin and erythromycin. Since this was the end of September, the new doctors in training, known as interns, were assigned to my dad and other patients. The records indicated that this young doctor in training prescribed an antibiotic to treat dad's urinary tract infection.

What did he prescribe?

Penicillin.

What was my dad allergic to? Penicillin.

We claimed that not only was it a departure from good and accepted medical practice for this intern to have prescribed a medication that my father was allergic to, but we also claimed that the nurses and the pharmacy failed to recognize that dad was allergic to medications and yet they still prescribed and administered this antibiotic to him.

In addition, we claimed that he was given penicillin, without knowing what medication he was taking; only that he was being given a medication to treat his urinary tract infection.

We also claimed that dad suffered an allergic reaction to the medication, known as an anaphylactic reaction which caused his fatal heart attack.

The defense attorneys had an interesting argument.

They claimed that (1) somehow this young resident-in-training, after writing an order to give my father a medication to which he was allergic to, somehow remembered that that was allergic to this medication as he was leaving the hospital. (2) They claim he reversed course while waiting at the elevator and headed back to the nurses station to cancel out that order.

The defense claimed that (3) he did cancel that order and then (4) left the hospital immediately afterward.

Here's where things got murky.

If the doctor who was wet-behind-the ears prescribed medication because of an infection in his urinary tract and then realized that the patient was allergic to that specific medication and cancelled that order, doesn't it make sense that the doctor would want to give a different medication in an attempt to treat that infection? That's basic common sense.

However, the doctor never ordered any other medication to treat the infection.

This was the missing link that rested on the doctor's credibility.

What was the verdict?

After three weeks of a very hard-fought trial the jury returned a verdict in favor of the doctor and the hospital. They did not find that the doctors or the hospital violated the basic standards of medical care and our family received no compensation for the death of my father.

Mom appealed the jury verdict and the decision by the higher court known as the Appellate Division in the Second Department was recorded in the law books that I now shared with my son 31 years later. The Appellate Division confirmed that the jury had the opportunity to evaluate the testimony and could reasonably come to the conclusion that they believed the doctor did not violate the basic standards of medical care. Accordingly, they let the jury's decision stand and that ended our quest for justice.

As I finish up this article, I alluded to something a few paragraphs ago about how watching closing arguments change the course of my life.

Even though we had a world-famous trial attorney on our side fighting for us, this was his first trial after leaving the Court of Appeals.

You see, the attorney that represented us was an extremely famous trial lawyer who achieved remarkable success helping injured victims recover compensation and in fact was the first lawyer in the country in the mid-1960s to achieve a million-dollar verdict for a tragically injured victim.

This lawyer achieved remarkable success to the point where he was appointed to the highest court in New York known as the Court of Appeals. After he completed his stint as a Court of Appeals judge, he realized he wanted to get back into handling trials and our trial was the first case he handled after getting off the bench.

Listening to our attorney during closing argument I couldn't help but feel that I could do the same exact thing this famous lawyer was doing.

In fact, I felt confident that I could even do a better job than he could. That's a pretty arrogant thought for college student in the middle of final exams.

Yet it was the main thing I kept thinking about as I returned back to college after the jury returned their verdict. The memory of closing remarks made me quickly change course and realize that my true calling was to become a medical malpractice attorney here in NY helping injured victims just like what our lawyer did for our family.

Bringing David to Court that day was great...

Taking my son to court that day was eye-opening for him because not only did he experience first-hand what it was like to be in a criminal courtroom watching real-life as someone was sentenced to jail for a good portion of their life and at the same time amazing by showing him a case that we were personally involved in over 31 years ago.

If you ever have the opportunity to go into a courthouse in New York, it's open to the public and anyone can go in. I encourage you to walk in, sit down and absorb what's going on around you. It's better than any TV drama you can ever imagine.

To learn more about how medical malpractice cases work, I invite you to watch this video about a case I tried in Manhattan where the trial judge took over questioning of  witness that I was cross-examining. It was fascinating. Listen in...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer