Your doctor told you to have a breast sonogram.

You didn't.

Your doctor told you to have a mammogram.

You didn't.

Your doctor told you to follow up with a breast surgeon to evaluate that breast lump.

You didn't.

The reasons why you didn't are not important right now. 

The fact is that you didn't do what your doctor told you to do.

A year later your breast lump is bigger.

Much bigger.

You go back to your doctor.

He asks whether you had all those tests and expert follow up like he told you to do last year.

You say "No I didn't."

He looks at you with frustrated eyes.

He can't believe you didn't do what he told you to do.

You immediately get evaluated.

Days later you are diagnosed with advanced breast cancer.

Metastatic breast cancer.

Stage IV.

Your breast surgeon asks why you didn't come to him a year ago when your doctor recommended that you see him.

Your answer doesn't really matter.

The fact is that your cancer has spread.

Throughout your entire body.

To your brain.

To your lungs.

To your liver.

He gives you maybe six months to live.

You're devastated.

Your family is devastated.

They're angry.

You're angry.

Angry with yourself.

Angry for not following through and doing what your doctor told you to do.

Your breast surgeon tells you that if you had seen him a year earlier, you would have been Stage I or Stage II.

Your prognosis would have been excellent with treatment.

Now, not so.

Your family convinces you that you must sue.

They've convinced you that your original doctor should have diagnosed your condition.

They all feel that if he had treated you appropriately, he'd have diagnosed your breast cancer.

He should have followed up with you to make sure you went for your testing.

They feel he was careless in not making sure you did what he recommended.

Your attorney finds a medical expert who confirms that your doctor violated the basic standards of medical care.

Your expert claims that as a result of your doctor's carelessness, your breast cancer went undetected for an entire year.

Your breast cancer went untreated for an entire year.

That destroyed your life.

You start your lawsuit.

You feel you have a strong case.

Your attorney convinces you that you have a strong case.

You're devastated to learn that your doctor and his attorney claim that you are responsible for your own injuries.

Not him. YOU.

You convinced yourself that your doctor failed to do what he should have done.

Your attorney convinced you that your original doctor is solely responsible for your cancer spreading throughout your body.

You firmly believe, after listening to your attorney and your family that your doctor did not treat you appropriately.

That's why you are shocked to hear that your doctor is pointing a finger at you.

You're shocked to hear that your doctor says YOU are totally responsible for your own injuries.

This is known as an affirmative defense.

Your doctor argues that he did nothing wrong.


Instead, he says YOU are to blame.

For your own injuries.

"If only you had listened to me," he claims.

The medical records confirm that into you originally complained of a breast lump.

You brought it to his attention.

Your doctor examined you.

He felt the breast lump.

He was concerned.

He was concerned it was cancer.

He sent you for tests.

He sent you to a specialist.

It's all confirmed in his records.

You acknowledge he told you to do these things.

What did he tell you to do?

He told you to get a sonogram of your breast.

He told you he wanted you to have a mammogram.

He wanted a breast surgeon to evaluate your lump and to take a biopsy.

There is no doubt about what your doctor wanted to have done.

It's as clear as black and white.

It's recorded in your medical records.

Your doctor knew this lump was worrisome.

He knew that the breast lump could be cancer.

He knew that these tests would help evaluate your lump.

Your doctor knew that a breast surgeon was better qualified to evaluate whether your breast lump was benign or malignant.

You, for whatever reason, disregarded your doctor's orders.

Maybe you felt your breast lump was getting smaller and didn't need to be evaluated.

Maybe you had other issues going on in your life.

Maybe you couldn't get an appointment in the radiology center.

Maybe you couldn't get an appointment with a breast surgeon.

Maybe you didn't have any health insurance and didn't have money to pay for those tests or that office visit.

Excuses don't matter at this point.

The reason why you did not do what your doctor told you to do don't matter.

They don't matter for your prognosis.

They do matter for your lawsuit.

They do matter to explain why you waited.

They do matter to help a jury understand why you delayed in following your doctor's orders.

The defenses raised in this case are simple.

Your doctor says if you had done what he told you to do, your breast cancer would have been diagnosed.

At an early stage.

A stage that was treatable.

A stage where your cancer had not yet spread.

It was localized.

It was treatable.

Your doctor claims that you allowed the condition to spread.

You and you alone are responsible for this deadly condition.

Is your doctor correct?

Even your own breast surgeon confirmed that if you had been diagnosed and treated earlier, your prognosis would be excellent.

You talk to your attorney about this.

He tells you that the defense has a valid argument.

He tells you that your medical records confirm that your doctor told you to get these tests.

Your memory is vague and not so good anymore.

Maybe he did.

You just don't remember now.

You begin to have doubts about your case.

You begin to wonder whether you did the right thing suing your doctor.

After talking to your attorney you realize you no longer have a strong case.

In this scenario, if your case goes to trial, there is a very good likelihood the jury will find that the doctor did everything correctly.

There is a good likelihood that the jury will believe that if you followed through on the doctor's orders, you would not be in this position now.

Even though the jury may sympathize with you, they may have no choice but to rule in favor of the doctor.

Just because you are suffering from a devastaing disease, doesn't always mean your doctor was careless.

Before filing a medical malpractice lawsuit, it is critical to look at your own actions to see whether you did or didn't follow your physician's recommendations.

If you didn't, why not?

Had you done so, would your outcome be different?

To learn what happens at trial if you didn't follow your doctor's instructions, I invite you to watch the quick video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer