Imagine two boxers.
Both are wearing boxing gloves.
Both climb into a boxing ring.

This fight is being overseen by a referee.

When the ref yells "FIGHT!" one boxer will throw the first punch.
No boxer in their right mind is simply going to stand there,  with his hands down, and continue to take punches to the head. It just doesn't happen.
Why not?

Nobody likes getting hit in the head.
Not even the strongest professional boxers.
Instead, they use their footwork to get away from the punch.

They use body movements to evade the punches.
They will slip a punch.
They will duck.

They will bob and weave.
They will roll.
In return, they will answer the original set of punches with their own.

That's known as a counterpunch.
A good boxer will use his feet to get out of range of a punch.
Then, in order to counterpunch, he'll use his feet to get into punching range.

And on it goes.
Each boxer has an agenda.
The goal is to knock the opponent out.

If you can't knock your opponent out, then you've got to gain sufficient points to win a judge's decision in your favor as being the better boxer.

Believe it or not, bringing a lawsuit is a lot like a boxing match.
The key difference is there's no physical fighting.
There is a 'boxing ring'. 

That's the courtroom.
That's where the legal gladiators battle out your case.
The person who brings the lawsuit, known as the plaintiff, is the one who throws the 'first punch'.

In a medical malpractice case in New York, after a medical expert has confirmed that you have a valid basis to start a case, your attorney has to prepare papers to start the lawsuit. 

This is known as the summons and complaint.
That's the start of the 'boxing match'.
The plaintiff throws the first jab.

The doctor you are suing doesn't yet know that he's the target of this 'boxing match' but will soon.
Your lawyer has to deliver the lawsuit papers to the doctor and the doctor must then reply to your allegations.
The doctor will answer the allegations with a document called an 'answer'.

That will be the doctors' counterpunch to your first punch in this case.

But you should know something important...
When the doctor answers the allegations in your case, he's going to bob, weave, duck, parry and avoid all responsibility for what happened to you.
He'll do that by raising 'affirmative defenses'.

Here's what I mean.
When you accuse the doctor of violating the basic standards of medical care, the doctor will slip that allegation and say "I did NOTHING wrong! Why are you even suing me?" 
You threw a straight punch right to his head and he easily slipped the punch and denied all responsibility.

You now throw a hook to the side of his head by claiming that his wrongdoing caused you harm.

The doctor ducks and rolls that punch and says "I didn't do anything wrong, but if I did, it didn't cause you injury!"
Watch out for the next move, because a good trial lawyer can see the counterpunch coming a mile away.
The doctor then says "I did nothing wrong! Instead it was YOU who caused your own injuries."

"BOOM!" That counterpunch landed right on your chin.
"What do you mean the doctor's saying I caused my own injuries?" you scream out in pain.
"I was asleep during surgery. How could I have caused my own injuries?" you seethe with anger.

The doctor and his attorney are good fighters.
His attorney has been in the 'ring' many times before.
He has some fancy footwork and is adept at legal maneuvering which will make you dizzy.

The defense then argues that "If I did something wrong AND it caused you harm, your injuries are not as bad as you claim." 

What the doctor is really doing is parrying your continual onslaught of punches.
He's avoiding all responsibility and then shuffling his body and feet to move away from those devastating uppercuts to his chin, the hooks to his head and those fast jabs to his nose. He's not standing in one place letting you pound him for a knockout.

After you've started your lawsuit and the doctor has answered your allegations, your case then proceeds through the discovery phase. That's where each side gets to prod, poke and explore the strengths and weaknesses of the other side.

It's just like a boxer who is testing the other side by throwing repeated jabs to his opponent to see how he reacts each time. Does he duck each time? Does he slip the punch. Does he defend by putting his hands up? Does he expose his belly when you throw high? Is his liver exposed?

What happens when you fake a punch? How does the other side react?
In your lawsuit, the same thing happens.
The doctor and his attorney get your medical records.

They scour them to see where your weaknesses are.

Then, at some later point, the attorney for the doctor will question you about the facts of your case.
He'll prod you.
He'll (metaphorically) poke you.
He'll ask you hundreds and maybe thousands of questions.

All to find your weakness.
Did you follow your doctor's orders?
Were you compliant with instructions?

Did you return to the doctor's office when told to do so?
Did you take the medicine you were prescribed?
Did you refuse any treatment?

The moment you expose a weakness in your case, the defense will take advantage of it.
They will use it to counterpunch your claim into oblivion.
They will not wait till trial to use it on you either.

They will often ask the judge to throw your case out of court before your case ever gets to trial.
The 'ref' in the courtroom is the judge.
The judge decides if you've been following the 'boxing' rules.

If you haven't, you run the risk of being thrown out of the ring and never being allowed back in.
Same thing in boxing.
If you hit below the belt, the ref can warn you or you could be disqualified for failing to follow the fight rules.

You think that just because your doctor was careless and caused you harm that you will have an easy straight path to victory with your knockout punches. Actually, the defense will do everything in their power to duck, weave, parry, bob and slip your punches to avoid being knocked out. Then, you've got to watch out for those powerful counterpunches and will have to do some legal maneuvering yourself to eliminate getting your case dismissed.

To learn more about how your lawsuit is like a boxing match I invite you to watch the quick video below...



Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer