Personal Injury Law

New York Medical Malpractice- So You Think You Have A Good Case?

By Gerry Oginski

You think your injuries are worth lots of money?

You think you have a 'slam-dunk' case that can't be defended? A 'smoking-gun' that suggests there is no way the doctors or lawyers would try and defend your case?

You think that your injuries are so bad that anyone who takes one look at you would pay you every penny you ask for.

You think that your prior lawsuits are not going to matter, because this one is much more significant with injuries that are much worse. You feel that your past psychiatric history will not be an issue in this malpractice case because your injuries do not involve treatment with your psychiatrist. You feel that your bankruptcy that you only declared last month is not worth telling your medical malpractice lawyer, since your current problems have nothing to do with your bankruptcy. And to top it off, you feel that your prior criminal conviction also has nothing to do with your potential medical malpractice case, because the doctor's actions do not have anything to do with the time you spent in jail for something you 'didn't do'.

Guess what, my friend...you have some significant issues that need to be discussed.

Your clear-cut malpractice case sounds far from clear-cut. It is rare that a New York medical malpractice case is so clear-cut that a doctor or his attorney would "beg for mercy" and capitulate immediately. It is also extremely rare for a defense attorney or their insurance company to recognize the extent of your injuries and again "beg for mercy." Medical malpractice lawsuits in New York, Brooklyn, Bronx, Queens, Staten Island, Nassau & Suffolk counties are the most fought-over and litigated matters in the court system. The defense attorneys are among the most experienced and knowledgeable in the trial bar. They make their living defending doctors and hospitals.

If you look at the statistics for medical malpractice cases in the State of New York, you would see that of those cases that go to trial, the defense wins over 2/3 of the cases. That's a very large statistical percentage.

Getting back to the other issues you felt were not important- let me tell you that failing to tell your lawyer about your current bankruptcy will get your lawsuit dismissed from Court- unless your lawyer takes the necessary steps to get approval from the bankruptcy trustee to proceed forward with a lawsuit in your behalf. Also, you better tell your lawyer about your prior conviction. You will definitely be asked that question at your deposition, and if you do not tell your lawyer about it at the beginning of your case, not only will your lawyer be upset, but he may question what other significant matters you have been hiding from him.

The worst thing you could do if you have been convicted in the past is to lie about your conviction history. Why? Because if you've have been convicted or plead guilty in the past and you deny every having been convicted, I guarantee you that the defense will do a criminal background check on you. When you get to testify at trial, just be aware that your credibility will be destroyed at trial.

Are you aware that in order to prove a successful medical malpractice or medical negligence case in New York, your attorney must be able to show that there were departures from good and accepted medical care. He must also show that those departures were a substantial factor in causing your injuries. Your injuries must be significant and permanent. Importantly, all three of those elements must be confirmed by either your treating physician, or a medical expert who has reviewed all of your medical records. If any one of those elements is missing, then there is no way to prove a successful case.

So, getting back to the original question: "You think you have a valid medical malpractice case?" You might, but those other 'insignificant' issues you were going to leave out will play a bigger role than you thought. The value of your injuries may be much different than you originally thought. Just because your neighbor got a certain amount of money for their injury case, may not mean that you will get the same or even more. Every case and every injury is different. When you meet with an experienced malpractice lawyer, make sure to tell him (or her) about those skeletons in your closet. Your discussions remain confidential. Good luck in your quest for justice.

Full post as published by New York Medical Malpractice Blog on May 21, 2008 (boomark / email).