The answer is no, he doesn't.
Let me tell you why.

In order to start a medical malpractice lawsuit against your doctor or hospital staff, we have to have a medical expert confirm that you have a good case. Our expert has to confirm that (1) your doctor violated the basic standards of good medical care, (2) that his wrongdoing was a cause of your injury and (3) that your injuries are significant and/or permanent.

You know you have a good case.
Your attorney suspects you have a good case.
Your medical expert confirms you have a good case.

That's it for the moment.
Only the three of you know how good a case you really have.
Now your attorney has to start your lawsuit by drafting papers alleging that your doctor was careless.

These papers are known as a 'complaint'.
He then has to deliver these papers to the doctor you are suing.
When your doctor gets your papers, he won't be able to tell yet how good a case you have.

Why not?
Because those papers are not specific enough.
Because your doctor will not have access to all your medical records at that point.

He won't know...yet.
But he will soon enough.
The doctor whom you sued will send your lawsuit papers to his insurance company.

The insurance company will read them and then forward it to lawyers they have on retainer.
Neither the insurance company or the defense attorney will know yet how good your case is.
Why not?

For the same reason that the complaint is not detailed enough for them to know.
Nor do they have your medical records so they can come to their own conclusion about how good a case you have.
What about the judge?

When will he learn how good a case you have?

Not yet.
Be patient and let me explain.
When the defense attorney responds to your allegations, he does so in a document known as an 'answer'.

The judge still has no clue what your case is about.
The court has not gotten involved in your case yet even though you've started your lawsuit.
Yes, you've filed your allegations with the court, but you're only at the very beginning of the case.

The judge assigned to oversee the discovery phase of your case, won't even meet the attorneys for many months.
Even then, he won't actually meet with the attorneys on your case.
Let me tell you why.

After the defense lawyer has responded to your claims by denying your allegations, your lawyer must prepare a document that details what you claim was done wrong and what injuries you have now because of that wrongdoing. That document is known as a bill of particulars. 

This will give the defense more information about your case.
It will explain how your doctor was careless.
It will explain what your doctor did wrong.

It will detail how bad your injuries are.
It will detail how long you were out of work and how much money you lost up till now.
The bill of particulars gives the defense the chance to learn more details about your case.

The judge still is not involved in your case yet.

At the same time as your lawyer provides this bill of particulars to the defense he must also give him copies of all the medical records he has obtained to review your case. "Here you go. This will show you exactly why we have a good case. Enjoy your reading!"

The defense attorney will go through the records your lawyer gives them to understand whether your claims have merit.
Interestingly, the defense will not trust us to give them accurate copies of the records we obtained. Instead, they want to get your medical records directly from your doctors and the hospitals where you were treated.

Ok. That means we have to give them permission slips, signed by you, that allow the defense to get copies of your medical records directly from your treating doctors and hospitals. Why do they do this? To get your records directly from the source. Why? So they can again review the records to determine if you have a good case or not.

Does the judge know yet how good your case is?
No he doesn't.
The judge still is not involved in your case yet.

When your attorney gives the defense lawyer the bill of particulars and permission slips (we call them authorizations), we also notify the court that we are now ready for a scheduling conference with the court. In New York we file a paper called a 'Notice of Medical Malpractice Action' which notifies the court that the attorneys are ready to have a conference in court to set up a schedule of when certain things will take place on your case.

It will take months for the court to notify the attorneys when to appear in court.
We call this a 'preliminary conference' or "PC" for short.
What exactly is this preliminary conference?

It's when both attorneys go into court and fill out a form directing WHEN things are to happen on your case.
It directs when each attorney must hand over copies of your medical records.
It directs when we have to give permission slips to the defense.

It directs when you will be questioned during your pre-trial question and answer session known as a deposition.
It directs when we will be able to question the doctor whom you sued.
It directs when you will be examined by a doctor for the defense and when his report must be turned over to us.

This is nothing more than a scheduling conference.
The judge does NOT get involved in these conferences.
If there is a dispute among the attorneys about when something must be exchanged, the judge's law clerk will usually intervene and help the attorneys resolve the issue. Rarely will the judge be called upon to resolve an issue during this conference.

"Are you telling me that after all these months after starting my lawsuit, the judge still has no idea whether my case is a good case?"

Yes. That's exactly what I'm saying.
The attorneys are expected to adhere to the discovery schedule that they agreed to during the preliminary conference.
Sometimes one side doesn't.

Then we may have to ask the judge to intervene and coax that attorney to do what he's supposed to do.
Even if that happens, and we have to formally ask the judge to take action, the judge will not learn just how good a case you have.
If we have to make a formal request for the judge to take action, we call that a 'motion'.

During this written request, we have to describe briefly what your case is about. However, that's NOT the opportunity to tell the judge what a great case you have. The judge isn't interested in that yet. Instead, we are now interrupting his workday to listen to this immediate dispute. The judge is ONLY interested in resolving this dispute that has brought the discovery in your case to a halt.

He needs to keep this case moving forward. 
His focus will be on unclogging the problem so we can continue with the exchange of discovery.
What's the problem?

It may be that the defense wants 20 years worth of your medical records.
We argue that they're only entitled to 3 years worth.
The judge must resolve this issue and he still won't know whether you have a great case yet.

In a few months you will be questioned by the defense lawyer in your attorneys office.
The judge won't be there to listen to your answers.
There's no jury there to listen to your answers.

But there will be a court stenographer there to record all of the questions you're asked and all of your answers.
Your answers represent your sworn pre-trial testimony.
Even though this is happening in your attorney's office, your answers carry the same exact weight as if you're testifying at trial in court.

The judge still has no idea whether you have a good case.

Within a few weeks or months, we will have a chance to question the doctor you sued.
In his lawyers' office.
Again, there's no judge there to hear the questions or the answers.

There's no jury there either.
Just the doctor, his lawyer, a court stenographer and me.
Again, the judge won't know what the questions were or what answers the doctor gave.

While this discovery process is going forward, the court wants the attorneys to report to the judge whether everything is proceeding on schedule. This is known as a compliance conference or a status conference.

The whole purpose of this conference is to let the court know whether discovery is proceeding as it should or whether there are problems that need to be resolved. In most cases, these conference are held with the judge's law clerk. Sometimes if there is a dispute that cannot be resolved with the law clerk, one or both attorneys will ask to speak to the judge.

The purpose of speaking to the judge will be to resolve a discovery dispute.
"Judge, the defense is refusing to produce their doctor despite the fact that we've scheduled his deposition five times now."
The judge's goal during this brief conference is not to tell him how good your case is. He's not interested in that yet. His goal is to resolve this immediate dispute and move your case forward. Any details about the facts of your case are incidental at the moment and only related to why discovery is not moving forward.

The judge does not yet want to know how many experts have said you have a good case.
The judge does not need to know what your lawyer thinks of your case.
Nor does the judge want the defense lawyer's opinion about case.

He only is concerned with moving the discovery process forward so your case can get to trial.

After your deposition, you are directed to appear for a physical examination by a doctor that the defense chooses.
You're told this physician is not going to treat you but only to examine you for the defense.
Weeks later, this doctor generates a report about his examination.

That report is NOT sent to the judge.
It's only sent to the defense attorney.
The defense attorney then sends a copy to your lawyer.

The judge has no idea what the defense's doctor thinks about your case or your current disabilities.

After all depositions have been done in your case and after all your medical records have been provided to the defense, your attorney will notify the court that the discovery phase of your case has finished. That means technically your case is ready for trial.

We have to file a document with the court that now puts your case on the trial calendar. 
This filing is called a 'Note of Issue'.
In this document we also ask the court for a jury trial.

In these civil cases where an injured patient is seeking money as a form of compensation for all the harms, losses and damages you suffered from your careless doctor, we have the option of having your case decided only by the trial judge or by having your case evaluated by a jury.

The judge still has no idea whether you have a good case.

It will be many months before the attorneys are called into court for a pre-trial settlement conference.
In some counties in New York, it might take nine months for the court to call us in for a settlement conference.
It might take twelve months.

It might take six.
That's because of the backlogs that exist in each county.
During that time, the judge knows nothing about your particular case.

Finally, after many months of waiting, the court notifies the attorneys that they are to appear for a pre-trial settlement conference.

This is the time that the judge will learn what your case is really about.
This is the time that your attorney will tell the judge what a good case you have.
This is the time that your lawyer will explain why your experts have confirmed you have a meritorious case.

This is the time the judge will see if your case can be settled without the need to go to trial.
This is the time the judge will ask the defense attorney what their position is and whether they have money to try and settle.
Often the defense lawyer is unable to give the judge an answer since the insurance company has not yet 'conferenced' the case with the attorney and their experts.

"Judge, can we get a few months to see if the insurance carrier is willing to negotiate? They'll have conference this case by that time and I will have an answer for you at the next conference," the defense lawyer says to the judge.

This is really the first time that the judge assigned to oversee discovery on your case will learn just how good a case you have. 

To learn whether you can speak to the judge during this settlement conference, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer