You've brought a medical malpractice lawsuit against your treating doctor.

You believe he violated the basic standards of medical care.

You believe he caused you to experience permanent and lifelong injury because of his carlessness.

The defense thinks they did nothing wrong.

They've told us they will not settle this case.

That means your case is going to trial and a jury will have to decide if we are more likely right than wrong that what you are claiming is true.

Just before jury selection starts, the attorneys have a brief conference with the judge.

He wants to know what this case is about.

He wants to know whether negotiations have started and if this case can be settled.

The judge will usually want to see the papers that were used to start the lawsuit and the answers to those allegations.

Legally, those documents are known as pleadings.

After we have picked six members of the community who have told us they can be fair when judging your case, the judge tells us that we will begin with our first witness tomorrow morning after opening remarks are made.

The next morning, everyone is ready and the judge orders the jury into the courtroom.

The judge then gives the jury preliminary instructions on what will happen during the course of the trial along with some preliminary warnings not to talk to the attorneys or litigants or witnesses.

Then it's time for opening arguments.

I go first since I represent the injured victim.

I also go first since we are the ones required to show that we are more likely right than wrong that our claim is true.

The defense attorney then makes his opening argument.

The judge then tells me to call my first witness.

"Your honor, I call Dr. Jim Jones to the witness stand," I say forcefully.

The judge does a double take as he sees the doctor stand up in the back of the courtroom and proceed to walk up to the witness stand right next to the judge's elevated seat.

As the doctor sits down and before the court reporter swears the doctor in, I overhear this brief conversation...

"Good morning Doctor! Nice to see you today. I had no idea you were being sued in this case..."

And in slightly hushed tones he says, just loud enough for me to hear, "I have an appointment to see you next week for my anual physical examination."


Did the judge just say that Dr. Jones is his personal physician and that he has an appointment for his yearly physical with him next week?

Why are we only learning about this now, moments before the trial is starting?

Why didn't the judge tell us during our pre-trial conference?

Why didn't the judge tell us after he read our pleadings?

Why didn't the judge tell us after the jury was selected?

Instead, he now waited till I call Dr. Jones as my first witness to reveal this relationship with the doctor?

Now I have a problem. 

A big problem.

Since the judge controls what goes on in the courtroom, do you think there might be the appearance of a conflict of interest here?

The judge decides whether certain questions can be asked or answered. 

The judge decides whether certain testimony and evidence are admitted at trial for the jury's consideration.

The judge can overturn a verdict for one side or another.

Let me ask you this question...

If the judge makes rulings against Dr. Jones throughout this trial, do you think it's going to affect his doctor-patient relationship when this case is over?

If the judge bends over backwards to help Dr. Jones, do you think that would create the perception that the judge favors the doctor over the injured patient?

Now that we know there's a clear connection between the judge and the doctor you have sued, what do you think would be the best course of action?

Do you think it would be appropriate to start the trial, knowing there's a strong connection between the judge and the doctor being sued?

Or do you think it would be better for the judge to excuse himself from this trial and have another trial judge assigned to this case?

The reality is that the judge will likely have to excuse himself since this scenario gives the appearance of impropriety even though the judge will likely claim that he can still be fair when conducting this trial.

Legally, this means I will have to ask the judge to recuse himself.

What if the judge refuses to excuse himself and instead try the case?

Then I will have no choice but to make a detailed record to preserve the possibility of an appeal if we ultimately lose the case. Then I can show to the higher court, known as the Appellate Court what has happened and why this trial judge should have handed this case over to one of his other colleagues.

To learn more about the judge knowing the doctor who was being sued I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer