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Trial Judge Strikes Experts' Medical Testimony. Can I Still Proceed with Your Medical Malpractice Case Here in New York?

You sued your doctor.

You believe he was careless and caused you injury.

You believe your injuries are significant and permanent.

In order to bring a medical malpractice lawsuit in New York, we must have confirmation by a qualified medical expert that (1) there was wrongdoing, (2) the wrongdoing caused you injury and (3) your injury is significant and/or permanent.

Only after our medical expert confirms each of those things are we permitted to go ahead and file a lawsuit on your behalf.

In your lawsuit, you claim that your doctor violated the basic standards of medical care.

You claim that your doctor's negligence was a cause of your injury.

In response, your doctor argues that he did nothing wrong.

As an alternative, he says that even if he did something wrong, so did you.

He also argues that your injuries are not really as bad as you claim them to be.

The defense notifies us that they have retained a medical expert who confirms each of the defense's arguments.

Your doctor and his insurance company refuse to negotiate.

They've taken the position that they will not pay a dime to settle your case.

That means you're going to trial.

That means that you must put on all of your witnesses and evidence to support your claim.

At trial, we must show that you are more likely right than wrong that what you are claiming is true.

The jury need not sit around the courthouse for weeks trying to be 100% sure that what we are claiming is true.

Instead, we only need show that you are only slightly more likely right than wrong.

When we are at trial, we are required to bring in our medical expert to testify.

Our medical expert must be able to explain to the jury how your doctor violated the basic standards of medical care.

Our expert must be able to show to the jury how that doctor's carelessness was a cause of your injury.

We must also show that your injuries are significant or permanent.

During the course of trial, there are instances where a witness may say or do something that causes his testimony to be improper.

A witness may say or do something at trial that may create a legal problem.

There are instances where a medical witness may not be qualified to testify.

Or, the witness may testify about issues unrelated to the claims that are being made.

If an attorney raises an objection, and he most certainly will, if the judge agrees that his testimony was improper, the only thing the judge can do is to strike the testimony from the record.

In that instance, the judge will give the jury an instruction that tries to cure the problem.

The judge will tell the jury that they must disregard what they just heard.

The judge will tell them that they are not to use that testimony when they decide whether we are more likely right than wrong.

You might be thinking “How can the jury delete the information they just heard?”

That's an excellent question.

The reality is that they can't.

Imagine you hear someone ring a bell.

A moment later someone comes by and tells you to disregard that you just heard the bell ring.

Can you do that?

Can you unring the bell in your mind?

The answer is no, you can't.

Especially when it is highlighted by someone a few moments later telling you to disregard what you just heard.

The same thing happens when the judge tells the jury to disregard your medical expert's testimony.

You cannot un-hear what you just heard.

The fact that the judge tells you to disregard it, simply highlights what you just heard.

If the judge decides that our medical expert's testimony is inappropriate and instructs the jury to disregard that testimony, can we continue forward with our trial?

If the judge decides, for legal reasons, that our medical expert has testified improperly and then strikes all of his testimony, we've got a big problem.

If we do not have another medical expert immediately available to come in and testify that there was wrongdoing, that the wrongdoing caused injury and that your injuries are significant or permanent, there is no way that we can continue your trial.

In that instance, if we have no further witnesses, the judge will have no choice but to dismiss our case before the defense starts to put on any of their witnesses.

Our case we'll never get to the jury.

We no longer have all the necessary elements needed to show that we are more likely right than wrong.

There is however one type of malpractice case where we don't even need a medical expert.

That occurs when we claim 'res ipsa loquitor'.

That is a fancy legal term meaning “The thing speaks for itself.”

Let me give you a great example.

Let's say you go in for elective surgery for your left hand.

You are put to sleep using general anesthesia.

When you awaken, you learn that you suffered a burn injury to your right shoulder.

You're thinking "How the heck did that happen?"

"I only needed surgery to my left hand. Why do I have an injury to my right shoulder?"

The surgery to your left hand went fine, but during the course of surgery the drape covering your upper right shoulder caught fire and caused you a burn injury.

The only reason your burn injury occurred to your upper right shoulder is because a nurse was careless when moving the cautery instrument designed to burn blood vessels.

In that instance, where you are asleep and play no part in causing or contributing to your injuries, and the only people who were responsible for your well-being were the doctors and hospital staff, in that instance we do not need to bring in a medical expert to show that the doctors and hospital staff were careless.

We don't need to bring in a medical expert to explain to a jury of lay people how and why your burn injury occurred.

It's obvious.

The jury just has to use their common sense.

In that instance, we claim that your injury speaks for itself.

But-for this nurse's carelessness, your injury would not have happened.

In that instance we do not need to bring in a medical expert to testify at your trial.

However, you will find that the best trial attorneys still will bring in a medical expert to testify.

Why?

Simple.

To show the jury the sequence of events that occurred.

To give credibility that this should never have happened.

It is also critical to have the doctor explain how your injuries are significant and disabling.

Since most medical malpractice cases do not involve incidents like the one I just described, we are always required to bring in medical experts to help the jury understand how and why your injuries occurred.

If the judge throws out our expert's testimony and we have no other experts to support our claim, the judge will dismiss your case.

To learn even more, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer