Being injured is no fun.
It's miserable.
It's a drag.

You can't do the activities you used to do.
You can't enjoy being with family and friends.
You have difficulty doing your daily activities.

You sit around your house wondering what you're going to do today.
You wonder why you're stuck at home while everyone you know is out and about, either at work or doing something they enjoy.
You wonder what's on daytime TV and whether another episode of Ellen will cheer you up.

Here's the scenario...

You had surgery.
You trusted your doctor.
You loved your doctor.

That's why you agreed to have the surgery.
"It's routine," he said.
"Don't'll be fine," he told you confidently.

When you awoke in the intensive care unit, you wanted answers.
You weren't fine.
You had tubes stuck in you, machines hooked up to you, warning bells attached to you.

You didn't know what was going on.
Until a nurse told you.
"Oh honey, you had a problem during surgery. Your doctor will explain," she said.

Two days later, when you regained your wits, your doctor came to visit.
"There were complications..."
"These are the risks of surgery..."

"Let's get you better and get you home..."
You stopped listening after he told you these were permanent injuries.
You stopped listening to the excuses.

Your surgeon kept trying to justify why you were in the ICU and how it's not that bad.

From ICU you were transferred to a 'regular' floor.
From there you were transferred to a rehab facility.
Four weeks in rehab and you were never going to get better.

Your life's been disrupted.
Your family has been disrupted.
Your job has been disrupted.

You're not getting paid while you're out of work.
The bills are getting paid either.
You wonder how you're going to pay your mortgage and your car payments.

You wonder how you're going to pay your kids' college tuition in two years when they go to college.
You can't even begin to think about how much you're going to owe the doctors and hospital for your medical bills.
Your health insurance will likely pay only a fraction of the bill and then force you to pay the rest.

This sucks.
This stinks.
It's not fair and you wonder why this happened to you?

What did you do to deserve this?
Did you not pray hard enough?
Did you do something wrong to anger your God?

You feel sorry for yourself.
You pity yourself.
Then you get depressed.

Then you need to see a psychiatrist or a psychologist or a therapist.
Either way, you're prescribed anti-depressant medication.
That's in addition to all the other medications you're taking.

You're taking narcotic pain medication.
That makes you constipated.
You think you're going to get addicted to this narcotic.

You're then given a medication to wean you off this to a lesser potency pain reliever.
That does crap for your pain.
Speaking of crap, your doctor prescribes you a stool softener which doesn't work.

Because the pain is ever-present, your mood stinks.
You're cranky.
You're often nasty.

You're often angry.
The anti-depressant makes you space out.
It makes you sleepy sometimes.

Especially while watching daytime TV.
That means that you sleep half the day away.
That means that you're up half the night.

Watching TV at 2:30 a.m.
Listening to moronic TV commercials for lawyers...
Every five minutes you hear another lawyer commercial.


But watching all those stupid lawyer commercials gets you wondering...
"What if your doctor was careless?"
"What if his carelessness caused you these injuries?"

"Is it possible you have a good medical malpractice case?" you begin to wonder.
You decide to call an attorney and ask.
You don't know any attorney.

You don't know someone who knows an attorney.
You don't trust any of those lawyers you see on TV.
So, what do you do to find an attorney?

You go online and start searching.
You ask Google "How do I prove a medical malpractice case in New York?"
You ask "How much time do I have to bring a medical malpractice case in NY?"

Those queries give you good information. 
But you want more.
You head over to YouTube to see if any attorney actually explains how these types of cases work.

You find hundreds and thousands of videos by lawyers explaining exactly what you need to know.
You find tons of videos helping you understand how medical malpractice cases work here in New York.
You find one attorney helping you understand all this strange information.

You call this attorney.
You feel you already know this attorney because of all of his videos that you've watched.
You like him.

He talks to you on the phone.
He invites you to his office to chat more.
He tells you he's going to investigate.

Months later, after getting all your medical records and having a board-certified medical expert review your records, he calls you.
"My medical expert confirms you have a valid case," he tells you.
But you already knew you had a valid case.

You just needed confirmation before your attorney could legally proceed forward with a lawsuit against your careless doctor.
Now you got it.
Your lawyer tells you that he's starting a case on your behalf.

Your lawyer tells you that your case will take two to three years to get to trial.
He tells you that the defense will likely not want to negotiate or try to settle your case.
He's going to prepare your case as if you're definitely going to trial.

Turns out he was right.
Your doctor and his lawyer refused to settle.
They refused to negotiate.

To trial you go...

It's now three years later.
You're no better now than you were when you started.
You're in constant pain.

You're no longer addicted to the narcotic pain medication.
But, you're in constant pain and no amount of medication helps.
That makes you cranky.

That makes you unpleasant to be around.
Your kids don't want to be near you for more than a few minutes.
Your spouse doesn't either.

Most of your friends have abandoned you because you're just not nice to them.
You don't appreciate their kind words or actions.
They just don't get you and the situation you're in.

You feel like nobody understands you.
You feel alone often.
That makes you more depressed.

Your psychiatrist increases your dosage of your anti-depressant that puts you in a real spaced-out zone half the time you're awake. 

Your trial is an agonizing two week affair.
An emotional roller-coaster.
Every day has emotional highs and emotional lows.

It's exhausting.
It's frustrating watching one witness after another testify.
There's so much tension in the courtroom.

Cross-examination is exciting but creates so much stress for you and the witness.
You don't know how much more of this you can take.
Your lawyer reassures you that you're close to the finish line.

He tells you to "Hang tough."

The case is finally winding down.
The attorneys are making closing arguments today.
Then the judge will explain the law to the jury.

Then the jury will begin their deliberations to decide if you're slightly more likely right than wrong.
Only then can they give you a verdict in your favor.
You're optimistic.

You're hopeful.
But, you're also realistic.
You know you could lose.

You know that even with a very strong case, the jury could still send you home without a dime.
On the other hand, you could win.
The problem, as your lawyer explained, is that a jury could do anything.

"There's no telling what a jury will do even with a very good case supported by excellent medical experts," he tells you.

The lawyers make their closing arguments.
You're sick to your stomach.
You want to throw up.

The judge takes an hour to explain the law to the jury.
Then, they're given their marching instructions to answer the questions on the verdict sheet.
When they're finished, report back to the court the judge tells them.

The judge sends the jury out to start deliberating.

Half an hour later your lawyer tells you that the defense attorney has approached him to try and settle this case before the jury comes back with their verdict.

Another half hour of negotiating produces a result you can live with.
You agree to settle your lawsuit.
All that time, effort and energy has now resulted in a settlement.

The jury will no longer need to reach their verdict.
There will be no uncertainty about what they were thinking.
There will be no uncertainty about how much, if any, money they would have given to you.

The judge calls the jury back into the courtroom.
"Ladies and gentlemen...I want to thank you for your service. The litigants have agreed to settle the case while you were out deliberating. That means you need go no further and are free to go with the thanks of the court."
The jurors look stunned.

They look disappointed.
Disappointed that they won't get to finish what they started.
But you're glad it's over.

Your close friend is in court with you when your case settled.
She turns to you after everything is over and asks "So? Are you happy?"
A flood of emotions run through you as she asks you this simple question.

You want to scream at her.
You want to shake her.
You want to yell at her.


You take a deep breath and close your eyes for a moment before answering her.
"Am I happy?" you ask rhetorically.
"Let me tell you what I'm happy for..."

"I"m happy I'm alive.
I'm happy I have friends like you who sit with me during a time like this.
I'm happy I have my family.

I'm happy I have an amazing lawyer who has helped me every step of the way.
I'm happy I wasn't more injured.
I'm happy I can do some daily activities.

But if you really want to know if I'm happy, the answer is no, I'm not.
I didn't ask for this.
I didn't deserve this.

My life has been ruined.
All because my surgeon was careless on that one day.
My family life has been ruined.

I'm miserable most of the day.
I'm unhappy watching my friends go about their day without a care in the world.
I'm depressed and feel that I'm a cripple who can no longer can contribute to being a productive member of society.

Am I happy I settled this case?
Sure, but at what cost?
What good will the money do for me?

I lost my job.
I lost my house.
I lost all of my personal posessions.

I lost my dignity.
I lost my ability to do things I enjoyed like playing sports and going for long walks.
I lost my ability to be medication free.

Now I take 23 pills a day just to get me through the day.
I need ongoing medical care.
I'll need multiple corrective surgeries over the next ten years.

Am I happy?
Sure I'm happy. I'm miserable too.
Will the money make me happy?

No, it won't.
It won't bring back my health.
It won't bring back my torn relationships with my kids and my spouse.

The money will get me off welfare.
It will get me out of this retched apartment I live in now.
It will help me pay off my debts.

The money will pay my lawyer for his incredible services and kindness.

The money will do nothing to make me a happy person.
Am I happy that I settled the case and didn't let a jury decide my fate? 
Yes. I'm happy that we took that function away from the jury.

But you asked me whether I was happy.
It all depends on how you define happy.
It all depends on how you see your life compared to what you had and others around you.

Am I happy I'm done with this litigation? Yes.
Am I happy I will live with these damages for the remainder of my life? No I'm not.
When you asked 'Am I happy?' what were you expecting me to say?"

***Personal observation...

Years ago, I represented a young man who suffered massive damage to his heart because an emergency room doctor was careless and misread his EKG. After years of litigation, the doctors and the hospitals agreed to settle his case for $6 million dollars. After the case was over there were many times when I wanted to ask this young man and his young wife whether they were happy now that they received a large settlement.

As I contemplated asking the question, I stopped myself.
Because I knew the answer.

I knew what he'd been through.
I knew the money would never make him whole again.
I knew the money would never patch up those broken relationships.

The money was secondary.
The money would help his family live without ever worrying where and how they'd pay for their numerous expenses.
I knew the answer.

I saw it in his eyes.
I saw it in his physical limitations.
I knew what treatment he'd have and how his injuries would affect him for the rest of his life.

I also knew that if asked "What would you rather have...$6 million dollars or these horrific damages," the anwer would be the same every single time. In fact, I know that if I were to ask every one of my injured clients the same question, the answer will ALWAYS be the same.

Every one of these injured patients would ALWAYS say they'd rather have their health than any amount of money.
That's a fact.

To learn more about the types of damages available in a medical malpractice case, I invite you to watch the quick video below...


Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer