The elderly woman screamed into the phone, "I'm telling you I have a good case," she said. I literally had to hold the phone a foot away from my ear as her voice was excruciatingly loud. "What makes you believe you have a valid medical malpractice case?" I asked. She proceeded to tell me about how her doctor had done something terrible- horrible in fact. "It was inexcusable," she proclaimed.
"I understand that...but what permanent injury did you suffer as a result of this awful treatment?" I replied. I was met with silence. "Hello? Are you still there?" I asked. "Yes, I am," she answered, "But I don't have any injury," was her answer.
"In that case, it doesn't sound like you have a valid basis to proceed forward with a medical malpractice case in New York," I responded. Her reply sounded like her fingernails were being physically pulled out from her fingers, "I'M TELLING YOU I HAVE A GOOD CASE...THE DOCTOR DIDN'T KNOW WHAT HE WAS DOING!!"
I calmly asked this potential client how long she had been practicing law. Her response was "I don't need to be a lawyer to tell you I have a good case." (How's that for an answer?)
I also asked her when all this wrongdoing took place. Her answer was "Five years ago." I again, calmly told her that the time limit to bring a case in New York for medical malpractice cases is only 2 1/2 years from the date of the malpractice. If her treatment was beyond 2 1/2 years, there was no way I could help her. She said she heard about something called "Continuous treatment" that would extend the time to file a lawsuit. I explained that there is a legal concept known as the "Continuous treatment doctrine" which says that if you are being treated by the same doctor, for the same condition and complaint that you originally went to him for, in some LIMITED circumstances, we might be able to show that the treatment was continuous and ongoing and might be able to extend the time for you to file a lawsuit. However, I quickly added, that each case is "fact-specific" and I would need to look at every page of every document, and have it reviewed by a medical expert to determine if there is a valid basis to claim continuous treatment.
I also mentioned that if this doctor was part of a municipal hospital or municipal clinic, she'd have only 90 days from the date of the malpractice to file a claim against the municipal agency responsible for that hospital or clinic. Then she'd have only 1 year and 90 days to file a lawsuit from the date of the malpractice.
The bottom line was that without any injury, there was no case. Despite her screaming and strident insistence that she had a good case, she still wouldn't accept my rational explanation. I only hope she encounters another attorney who is just as patient and understanding as I was during this call.
Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice and injury cases for over 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.
Also, go over to http://medicalmalpracticetutorial.blogspot.com for Gerry's free instructional videos on malpractice & accident law.