She is adamant.

She says she'd never have had surgery if he told her.

She says he never told her.

She says he never told her about the risks of surgery.

She says he never told her about the benefits of surgery.

Nor any of the alternatives.

She claims that he recommended this one surgical procedure to her.

He convinced her this is what she needed.

She liked her doctor.

She trusted her doctor.

She believed her doctor.

She had no reason to believe he'd steer her wrong.

She has the surgery.

It doesn't go well.

There are complications.

There's further hospitalization.

She needs corrective surgery to fix the problem.

She's upset.

She's angry.

She's furious.

She wants justice!

Now she has to spend months recuperating.

Now she has to pay even more money to doctors and surgeons to fix the problem.

Now she's going to be out of work even longer, losing more money.

In the hospital, while recuperating, her doctor tells her he's sorry.

He's sorry she had these complications.

"You must have done something wrong!" she angrily accuses her doctor.

"Actually, no, I didn't," he says calmly.

"The problems that you have are known risks of this surgery."

"They can happen even in the best of hands."

She doesn't see it that way.

"You didn't tell me about any of these risks," she exclaims with a finger pointed straight at him.

"Had I known that there was a chance I could experience these problems, I NEVER would have agreed to this surgery," she screeches.

He tries to tell her that he DID tell her about the risks of the surgery.

She's not having any of it.

"YOU DID NOT!" she yells.

He realizes that arguing with her is pointless.

Months later, still furious for having had this surgery and these complications she decides to speak to an attorney.

She wants to sue her surgeon for screwing her up.

She wants to sue him for not providing her all the information she needed to make a decision about what to do.

She wants him to pay for her suffering and the pain he caused because of these terrible complications.

She finds a trial attorney here in New York to investigate.


In a medical malpractice case in New York, an attorney cannot start a lawsuit just on the basis of what the patient claims was done wrong.

Instead, a thorough, detailed investigation must be done including obtaining and reviewing all of the patient's medical records by a qualified medical expert.

Our medical expert must confirm that (1) her doctor was careless, (2) his carelessness was a cause of her injury and (3) her injuries are significant or permanent.

Only if our medical expert can confirm each one of those things are we permitted to file a lawsuit on her behalf.

An experienced attorney obtains all of her medical records.

He scours each and every page of her large medical record.

He finds that there are two notations in the chart talking about informed consent.

The first is a note the doctor wrote about the patient's visit.

The other is a consent form the patient signed in order to give permission to her doctor to proceed with surgery.

Before I go further, let me explain briefly what informed consent is...

When a doctor recommends a procedure to a patient, he's supposed to give her sufficient information so that she can make an educated decision about whether this procedure is right for her.

If the patient does not have sufficient information necessary to make an educated decision, then the decision she makes is based on faulty or insufficient information.

That could be a problem.

That could be a problem if they suffer an injury or complication during a procedure.

In many instances, patients claim that their doctor FAILED to tell them about the risks associated with the procedure.

Likewise, doctors always argue that they DID tell the patient about the risks of having this surgery.

Who is right and who is wrong?

Who is more likely right than wrong?

Who is telling the truth?

Who is NOT telling the truth?

A physician is supposed to disclose the risks, benefits and alternatives to any treatment he proposes for this patient.

The patient is the one who has the ultimate say about what treatment or procedure they will have.

That's the ideal.

It does not always work that way.

Why not?

It's because patients rely on their doctors.

We rely on our doctors to give us the best medical advice possible.

We hope and expect that they will always do the right thing by us.

We hope they will not perform unnecessary surgery.

We hope they do not recommend a treatment simply to earn a fee.

We trust our doctors since they have specialized medical knowledge and training that most of us do not have.

There are many instances where a doctor will recommend a treatment to the patient

The recommendation isn't a list of options to choose from.

Instead it comes across as “Mrs. Jones, this is what we're going to do treat your problem.”

Mrs. Jones, believing that this is the best treatment for her, readily agrees.

When a patient suffers an injury or complication following treatment, they often argue that the doctor did not disclose this particular risk or complication prior to the treatment.

The patient argues that “Had I known this was a risk of the procedure, I never would have had the treatment.”

Let's take this one step further...

Let's assume an attorney has evaluated the case and a medical expert confirms that (1) there was wrongdoing, (2) the wrongdoing caused injury and (3) the injury is significant.

Let's also assume that most of the claims are based on the patient's statement that the doctor did not disclose the risks of this surgery.

The medical expert confirms that this doctor didn't discuss the risks of surgery with the patient.

This expert is relying on the patient's own statement that her doctor did not disclose the necessary risks before making an informed decision.

What if the doctor did tell the patient about the risks?

What if the patient simply forgot?

What if the patient might have forgotten those details?

This becomes a huge problem trial.

Let's say this case does go all the way to trial.

Imagine this scenario...

Dr. Goldberg, our expert is on the witness stand.

“Doctor, is it your conclusion, after reviewing the testimony in this case that Dr. Jones failed to tell this patient about the risks of surgery?


“Would you agree that failing to tell the patient about the risks of surgery would be a clear violation of the basic standards of medical care?”

“Yes I would.”

“Would you agree that good medical practice requires that a physician who is recommending surgery have a detailed discussion with the patient that discloses the risks of this surgery?”

“Yes I would.”

"Doctor, did you review the patient's testimony she gave before trial?"


"Did that testimony allow you to conclude that Dr. Jones did not discuss with the patient the risks of surgery?”

“Yes. The patient testified during her pretrial question and answer session that Dr. Jones did not discuss with her any of the risks of this surgical procedure.”


This doctor, testifying as an expert, makes the fatal mistake of relying on the patient's memory to reach his conclusion.

He also relies on the patient's testimony she gave at trial.

This trial testimony is identical to what she said two years earlier during her pretrial answers.

In that testimony, she claimed Dr. Jones did not discuss the risks of the surgery with her.

Here's why it's a problem...

It's now time for the defense attorney to begin his cross examination.

This defense attorney is smart.

He's an experienced trial lawyer.

He knows he can destroy this witness's credibility with just a few short questions.

“Dr. Goldberg, you told us that you reached your conclusion based upon the patient's pretrial testimony and her trial testimony. Is that correct?”


“You came into court and told this jury that you are an impartial medical expert, is that true?”

“Yes it is.”

“Before coming into court today Doctor, did you read Dr. Jones's pretrial testimony?”

“Yes I did.”

“Doctor, let me read to you what Dr. Jones said...”

“I'm now reading at page 17 of Dr. Jones's pretrial testimony.

Q: Dr. Jones, would you agree it's important, as the patient's surgeon, to discuss with the patient your proposed surgery?

A: Yes.

Q: Would you agree it's important for you to discuss the risks of surgery?

A: Yes.

Q: Would you agree that failing to disclose the risks of surgery to the patient would be a violation from the basic standards of good medical care?

A: Yes.

Q: Would you agree that failing to tell the patient alternatives to the surgery would also be a violation from the basic standards of medical care?

A: Yes.

Q: Would you agree that failing to disclose the benefits of this surgery would also be a violation of the basic standards of medical care?

A: Yes I would.

Q: Dr. Jones, did you discuss the risks of the surgery with this patient?

A: Yes I did.

Q: Did you discuss the alternatives to the surgery with this patient?

A: Yes I did.

Q: Can you show me where you documented your discussions?

A: Right there in my progress note on page 3, I have a detailed note indicating I discussed with the patient all the risks, benefits and alternatives to surgery.

Q: Dr. Jones, other saying you discussed the risks, benefits and alternatives, do you have a note that discloses exactly what you said to the patient and what she said to you?

A: No, that would be burdensome and take a tremendous amount of time. My custom and practice is that when I have a discussion with the patient about the risks and benefits of the surgery that I use these initials "Discussed R/B/A with patient" to confirm that we had this informed consent discussion.

**Turning back now to the medical expert being cross examined**

“Dr. Goldberg, did you read that testimony when evaluating this case?”

“Yes I did.”

“In reaching your conclusion that Dr. Jones did not discuss the risks with the patient, did you take into consideration his pretrial testimony that he swore he told the patient about the risks?”

“Yes I did.”

“Doctor, let's recap for a moment...

We have here a patient who swears that her surgeon, Dr. Jones did not discuss the risks of the procedure with her.

Dr. Jones on the other hand swears that he did discuss the risks with her.

Dr. Jones documents in his notes that he had such a discussion.

You were not present during the conversation between Dr. Jones and this patient, correct?”

“You don't know what was said during this office visit, do you?”

“No, I do not. I'm relying only on the records and the testimony.”

“That's exactly my point. The medical records from Dr. Jones's office clearly reflect that he had that conversation with the patient about the risks of the surgery, correct?”


“The testimony in this case conflicts between patient and doctor, correct?”


“Yet for some unknown reason, you have chosen to believe the patient simply based on her testimony rather than believing the doctor's testimony, isn't that true?”


In this scenario, that's exactly what happened.

The doctor has made himself vulnerable to attack because he simply believed the patient's word over the doctor's word.

That's a dangerous thing to do for an expert.


Because the doctor cannot be in a position to decide who is more likely right than wrong.

It is not the expert's function to decide who is more credible.

That's actually the jury's function.

The jury is the one to decide who they believe and who they don't.

The doctor is there to describe the standard of care and what was done correctly and what was not done correctly.

This scenario of conflicting statements by patient and doctor create a classic “he said/she said” scenario.

When the jury is faced with this issue, they will have a problem with it as well.


Because the jury was not present in the doctor's office when the doctor and patient had this conversation.

Who is the jury to believe in this scenario?

Are they to believe the sympathetic injured patient?

Or, are they to believe the doctor who comes across as straightforward and honest and has medical records to confirm that he had such conversation?

'Lack of informed consent' is usually only one part of a claim that a patient brings in a medical malpractice lawsuit.

The patient must show that she is more likely right than wrong that her doctor did not disclose the risks of the surgery.

She must also show that had she known of those risks, she would not have had this surgery.

However, you will find that the best trial attorneys in New York will not proceed forward with a case based only on lack of informed consent.

That's because the opposing experts will always come up against a he said/ she said scenario.

That leads juries to side in favor of the doctor more often than not.

That's why it is so critical to have an expert who's able to determine that the medical care and treatment the patient received violated the basic standards of medical care. As long as there are clear violations from the standard of care that resulted in significant injury, now you have a substantial case that also includes a claim of lack of informed consent.

To learn more about informed consent cases here in New York, I invite you to watch the quick video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer