This judge was known throughout New York City for being aggressive. He was known as a tough medical malpractice judge. He was known for interrupting your questions and he didn't tolerate any nonsense.

He was known for trying two cases at once. In my opinion, he was an excellent judge. 

I had been in front of him many times for status conferences. I had been in his courtroom many times watching ongoing trials. I had yet to try a case with him.

It was early in my legal career when I finally had an opportunity to try a case in his courtroom. It was a medical malpractice case. I was a defense attorney and represented a urologist who was accused of leaving behind a needle tip in the patient's body.

Jury selection in those days would often last for many days or a week, depending on how many lawyers were involved in the case. I knew this case would be different.

Even though it was a one-on-one case, where it was just one attorney for the injured victim and one attorney for the doctor, I knew this judge would likely have jury selection done in one day. I also knew that we had to be fully prepared to start trial the following day. 

In most other trials back then, jury selection would drag on endlessly for days or weeks. Then, after a jury had been selected, someone usually had a scheduling problem and couldn't start immediately. There might be a few days of delay between when jury selection had finished and when we actually started the trial.

It turns out that everything I had heard and observed was true.

This judge made us finish jury selection in one day. That was pretty much unheard of at that time. Then, he wanted to start the trial the following day. The good thing was, I was fully prepared for that possibility.

The plaintiff's attorney was a guy I didn't know much about. Hadn't heard anything really about him. Didn't know if he was a good attorney or not. On the other hand, he was in a top-notch law firm that had a reputation for being one of the best plaintiff's firms in New York City.

Here was my thinking going into this trial...

  1. We all know that doctors should never leave surgical instruments in a patient's body, unless they were specifically intented to remain there,
  2. This wasn't a surgical instrument,
  3. It was a needle tip,
  4. The surgery went well and was successful,
  5. The doctor actually made attempts to search for the tip of the needle,
  6. He couldn't find it after searching.
  7. He closed the patient up.

It was here that things got a bit murky...

He never reported in his operative report that the needle tip broke off. Nor did he bother telling the patient about this little incident. These were two touchy points that I knew I would have much trouble dealing with. The other problem I knew would come up was how the patient learned, years later, that the needle tip was in his body. (I'll tell you how that happened in just a moment...)

You should also know that this doctor was an excellent physician. Very good credentials. Never had a lawsuit before. Never had this type of event happen before. 

So here's what happened during surgery, according to the doctor...

While finishing the surgery, the urologist was now closing the incision. He was using a needle and suture material. As he was sewing the wound, the tip of the needle broke off and fell into the incision.

The doctor stopped what he was doing and began to search for the needle tip. He looked. He fished around. Still he couldn't find it. He decided that this foreign object wouldn't move or cause the patient any harm and he then closed the incision with another needle and sent the patient to the recovery room.

Here's what the doctor didn't do...

  • He didn't order an intra-operative x-ray to see exactly where the needle tip was.
  • He didn't put this little event into his operative report
  • Nor did he bother telling the patient about it since he felt, in his medical opinion, that the needle tip would never move and it would never bother the patient

Here's what common sense tells you...

If you leave something inside a patient by accident, tell the patient about it! It's their body and they have an absolute right to know about it. Well, not according to this doctor. He felt that this was so small it would never go anywhere or have any effect on the patient at all.

Well, he was wrong on both counts.

How did the patient learn about this needle tip?

More than three years after this hernia repair surgery the patient began to experience back pain. Pain that simply wouldn't go away. It would get worse when he turned his body. He didn't understand why he was having so much pain since he hadn't injured himself.

The patient went to see an orthopedist who proceeded to take x-rays of his back. After the x-rays were done, here's the conversation between the orthopedist and patient:

"Have you had any type of surgery recently?

No...I had a hernia repair more than three years ago.

Any other surgery?


Well, we found a sharp object on x-ray and it clearly doesn't belong there. I need to send you to a surgeon to get this surgically removed."

That's what the patient did. He had to have this needle tip surgically removed under general anesthesia. Now he was claiming that he had recurrent back pain.

Back to the trial...

I now have my expert witness on the witness stand.

I'm asking him open-ended questions. He's explaining things to the jury. He has very good credentials.

He was telling the jury that the needle tip breaking off does happen once in a while. The fact that it happened is not malpractice. How did he address the fact that he didn't get an x-ray?

He said it wasn't the standard of care to get an x-ray. He agreed that it made perfectly good common sense to get an x-ray, but that wasn't the standard of care.

Then came a series of questions I knew we'd have a problem with...

"Doctor, you understand that my client did not tell the patient about this needle tip being left inside of you.


Do you have an opinion with a reasonable degree of medical certainty whether that is a departure from good care?

I do.

What is your opinion?

It was NOT a departure from good care that he he didn't tell the patient."

Well, you should have seen the look if incredulity on the judge's face. Astonished would be a better description.

The jury saw the judge's look. They all shook their heads, and not in a good way.

I opened my mouth to ask my expert another question.

As I did that, the judge interjected and asked the expert a question. Then another. And another.

In a somewhat accusing tone the judge asked

"You mean to tell me doctor that it's perfectly acceptable for a doctor to accidentally leave something inside of a patient and not tell the patient about it afterward?"

I yelled out "OBJECTION!"

"Judge, I object to your question and the manner in which you're asking the question."

The judge looked at me, said "Objection overruled," turned back to the witness and said "Answer my question doctor."

I knew it was over before the witness had answered the judge. There was no way he was going to wiggle out of this. No amount of explaining would get us out of this hole.

This was not a hole that the judge created, rather it was a hole that my client created by not telling the patient. Should he have told the patient? Absolutely.

Did he tell the patient? No.

Why not?

He didn't feel he needed to and didn't feel this needle tip would migrate or pose a problem in the future.

Unfortunately for the patient, the needle tip did migrate. Three years later it caused the patient significant pain and ultimately required him to undergo surgery.

The judge didn't buy my clients' explanation. The judge didn't buy my experts' explanation. That's understandable.

What is not acceptable is the fact that even though the judge controls the courtroom and controls the process by which we put on witnesses and introduce evidence, the judge is not supposed to express any opinion whatsoever about who should win and who should lose. Even making facial expressions should not occur so that the jury does not believe that the judge is favoring one side or the other.

The mere fact that the judge took over my questioning was problem number one.

The fact that the judge then expressed disbelief at this witnesses' testimony created a second big problem.

If the judge has doubts about someone's credibility, under no circumstances is he to express that in any fashion to the jury. The jury will pick up on the judge's cues and believe that the judge knows better than they do and begin to adopt those opinions.

Despite the fact that I tried to object to the judge's questions, he had every right to ask those questions.

Those exact questions were likely on the minds of these jurors who wanted to know why my client did this and why my expert thought this was appropriate.

Why did this case go to trial?

The reason we were at trial is that my client had a huge ego. He refused to consent to settle. He refused to acknowledge that he did anything improper. He believed he knew better. He believed that the patient didn't really need to know, and only if he, the surgeon, decided the patient should know, only at that time should he reveal what occurred.

I knew going into this trial that our chances for successful outcome were dim. I told my client that fact. I told the insurance company that fact.

At that time, insurance companies had policies that allowed doctors the ability to either consent to settle or refuse to settle and then force us to go to trial. Very few insurance companies who represent doctors still have those clauses in place. That type of clause allows the doctor to control how the litigation proceeds forward, even if it is not in the doctor's best interest to proceed to trial.

I remember calling the insurance company at the end of that day, after our expert had testified.

I walked out of the courtroom knowing that our experts' credibility was stretched beyond belief. You could tell that every one of the jurors did not believe our expert. Accordingly, there is no way they could have possibly believed my client.

At trial, credibility is everything.

Trust is everything. If the jury begins to lose trust and begins to think that what you are saying is not true or accurate, you will have lost them forever.

Shortly after my expert testified we made closing remarks. This trial which would normally have been tried over the course of an entire week, was compressed to 2 1/2 days of actual trial testimony. It was fast-paced and remarkably intense.

I knew the jury was going to come in against us, I just didn't know for how much. Even after we made closing arguments, the doctor still refused to consent to settle.

They wanted to settle but my client didn't

The plaintiff's attorney was willing to settle this case. His client's injuries were really not very significant. There was the issue of needing to have corrective surgery to remove the needle tip, but after that, his injuries were vague and not really verified. I suspect they would have agreed to settle this case for approximately $100,000.

Keep in mind that this trial happened more than 20 years ago. $100,000 back then was still a considerable amount of money. Since I did not have the doctor's permission to go ahead and settle, I never actually engaged in settlement conversations with the plaintiff's attorney.

The jury verdict was swift.

The jury found that my client departed from good and accepted medical practice in failing to obtain an x-ray. They found that he violated the basic standards of medical care by not telling the patient about this retained object.

The jury also found that those departures from good accepted medical care were a substantial factor in causing and contributing to his injuries. Legally, that's known as causation. I knew immediately that the jury found against us and that the doctor was being held legally responsible for this patient's injuries.

The next question the jury had to answer was how much compensation they were going to give to this patient for his pain and suffering from the time of surgery up until the present as well as from the present into the foreseeable future.

The jury verdict is...

This New York County jury decided that this doctor was held accountable to pay $500,000 to the injured patient as result of his carelessness. That's half a million dollars. They certainly sent a message to my client. It was a message I had reinforced multiple times throughout the trial. It was a message I repeated to him during jury deliberations.

Despite these repeated messages, my client knew better. He still claimed, after the jury verdict that he did nothing wrong. The jury disagreed.

The story doesn't finish there.

Why not?

Because the doctor felt that since he did nothing wrong, we needed to appeal immediately. He felt that there were clear-cut grounds for an appeal. I told him he was wrong. I told him the only thing that might be appealable were the judge's repeated questioning of our expert together with his look of incredulity and the tone and manner in which he asked our expert questions.

I then explained the standard by which an appeal is evaluated and told my client that in order to overturn a jury verdict based upon the judge's actions during trial, it has to be significant and clear cut. I explained that in all likelihood, this judge's actions did not even come close to rising to the level that would permit an appeals court to overturn this jury verdict.

Despite that, we began the appeals process.

Prior to submitting papers for an appeal,  we first try to see if the trial judge will reverse the jury's verdict for various legal reasons. We made our request to the same trial judge and on the day that our papers were to be heard in court, the judge requested settlement negotiations begin immediately.

That was the first time I had personally encountered the senior partner of this very well-known and well-respected plaintiffs law firm. He was, without a doubt, one of the best trial attorneys in the country. His courtroom verdicts were legendary. His successes were unmatched by anyone. He had been in front of this judge endless times and knew him well.

As a result of this judge's efforts, before ever taking oral argument on our request to throw out the jury verdict or to reduce it, this judge was able to negotiate a settlement that resulted in $100,000 payout.

To learn more about a surgery case gone bad, bad, bad resulting in blindness, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer