You believe your doctor was careless.

You believe your doctor caused your injury.

Your injury is significant and permanent.

You decided to bring a lawsuit against your doctor and his medical group.

You claim he violated the basic standards of medical care.

You claim that wrongdoing caused you harm.

You have a board certified medical expert confirm (1) there was wrongdoing, (2) the wrongdoing caused you harm and (3) your injury is significant.

Your lawyer tells you your case will take about 2-3 years to resolve.

Your case might be settled.

Your case might go to trial.

Your case might be dismissed on a legal technicality.

There are many outcomes, none of which are guaranteed.

After a year and a half, all of your pretrial discovery is complete.

Pretrial testimony has been obtained of all witnesses.

You were questioned.

Your doctor was questioned.

One of your treating doctors was questioned.

The defense wanted you evaluated by a doctor of their choosing.

They wanted to confirm for themselves that your injuries really are as bad as you claim them to be.

Your attorney gave the defense copies of all your medical records.

Your attorney gave the defense permission slips, known as authorizations, to go directly to your doctors to get copies of your records.

All this investigation and pretrial discovery took one and a half years to complete.

The defense refuses to negotiate.

They feel they have a strong defense.

They feel they did nothing wrong.

They claim your doctor treated you appropriately at all times.

They also claim that nothing your doctor did caused or contributed to your injuries.

By the way...

They also claim that your injuries are really not as bad as you claim them to be.

Frustrating, isn't it?

You know they're wrong.

Your attorney knows they're wrong.

Your medical expert knows they're wrong.

So, your attorney notifies the court that you are technically 'READY FOR TRIAL'.

Your attorney files a document with the court known as a 'Note of Issue'.

This is a procedure that lets the court know that your case will now go on the trial calendar.

That does not mean your trial will start tomorrow.

It does not mean your trial will begin next month.

It does not mean your trial will proceed in six months.

Depending on the county in which your case is pending, your case may 'sit' on the trial calendar for many, many months.

Some counties are backlogged for a year.

Some, less.

Let's go back for a moment and talk about what happens the moment your attorney files that piece of paper called a 'Note of Issue'.

Most judges who handle medical malpractice cases here in New York have individual rules about when things must be done. 

Generally, after your lawyer lets the court know that you are ready for trial, the clock starts to run for the defense lawyer.

Many judges give the defense sixty days in which to ask the judge to dismiss your case.

Legally, that's known as a 'Motion for Summary Judgment'.

A 'motion' is nothing more than a formal written request asking the judge to take some type of action.

A 'motion for summary judgment' asks the judge to throw out your case before you ever get to trial.

The reason why a defense lawyer typically has sixty days to make this formal request is to allow him time to do his legal research and put together the legal papers detailing why you do not have a valid case.

The defense lawyer must show to the judge that there are NO questions of fact to be decided.

Instead, the defense must explain to the judge why, as a matter of law, your case must be dismissed.

Since this is a medical malpractice case, the defense must submit expert medical evidence, in admissible form, that you do not have a valid case.

It is not enough for the doctor whom you have sued to submit a sworn statement saying "I did nothing wrong. Really. You can trust me..."

The judge wants to see what a qualified medical expert has to say about this.

That means that the defense lawyer will have to hire a board-certified medical expert to review the records and pretrial testimony.

The defense's medical expert will have to reach the conclusion that the doctor being sued did not violate the basic standards of medical care.

He then has to explain why and how he arrived at that opinion.

But this is only half the story.

Once the defense lawyer has done his legal research and obtained a medical expert, he must prepare his 'motion' carefully.

The wording and substance of what he says and how he says it in his legal papers can make a huge difference.

The court will then give your attorney time in which to respond to this.

Your attorney will notify you that the defense is trying to get your case thrown out before you ever get to trial.

That will frustrate you.

That will annoy the heck out of you.

That will make you mad.


Because they defense is trying to get your case dismissed on legal technicalities.

You know they can't win on the merits.

But before you ever get to trial and battle the merits, you've first got to overcome this legal obstacle and beat the defense on this request.

Your attorney has a lot of work to do now.

He's got a very short timeline in which to do it.

He must get in touch with his medical expert.

He will send the defense's expert opinion to his own medical expert for comment.

He must then craft a statement for his own expert and dispute and discredit what the defense's medical expert has said.

He must then explain why the defense' theories don't hold water. (A reference to the pivotal scene in the movie My Cousin Vinny).

Your attorney must show, using his medical expert, using the pretrial testimony of all witnesses and any other evidence that there are questions of fact for a jury to evaluate.

For example, if your expert says that failing to diagnose a bowel perforation is a departure from good medical care and then the defense's medical expert says it's acceptable to not diagnose a bowel perforation during surgery, who does the judge believe?

You have competing experts.

Both are well credentialed.

Both make well-reasoned arguments.

In that instance where you have opposing medical experts giving differing opinions and conclusions about the same set of facts, the judge will likely decide that this is a question of fact for the jury to evaluate.

In that instance, the judge will deny the defense's request to throw your case out and your case will proceed to trial.

However, if the judge decides that there are no questions of fact and only issues of law, the judge has the ability to dismiss your case.

To learn about different type of motions, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer