Personal Injury Law

NY MEDICAL MALPRACTICE-Liability is Clear But Damages Are Not; Learn Why

By Gerry Oginski

The world of a New York medical malpractice lawyer is not black and white. The stories that potential clients come in with are never black and white. Many are shades of grey.

Here's what I mean. A child was having a CT scan in a Westchester hospital. There is a reason why signs posted around CT scans say that no metal objects are allowed in. The reason is that the CT scan uses a very powerful magnet. Any metal objects will be attracted to the magnet, and stick to it. Unfortunately for that little boy, a technician was walking by with a metallic canister. That canister became an instant projectile and killed the little boy. The liability was clear cut. In fact, the president of the hospital admitted their fault the next day in a televised news conference. Unfortunately, that did not end the matter.

You see, to a parent, every child is worth more money than the world. Every parent would rather have their beautiful child rather than have to visit a cemetery and think about the hundreds of thousands or millions of dollars the hospital paid as compensation for the terrible tragedy that they have been caused to endure. The problem that was not black and white is an agreement between the hospital lawyers and the family's lawyers on the value of this little boy's life. Because the hospital and the family could not agree on an amount, the family was forced to litigate and have a jury decide how much the family should be entitled to as full and fair compensation.

Although the liability was clear, the injuries, also known as "damages" in legal terms, were not so clear.

Here's another example: A man who had twenty dental implants inserted improperly was without any teeth in his mouth for over two years. Liability in the case appeared certain. Damages, or injuries, were again disputed. "The patient could have had treatment earlier that would have limited his damage," said the defense attorney. "Yes, but your client put him in this position and now he has no money to have corrective dental treatment," was the reply.

Here's an even better example:
A young man put his arm though a glass window. In the emergency room the doctor incorrectly stitched up the nerve that controls function to his fourth and fifth fingers. Three months later, after the patient had continued to complain of nerve problems to his hand, and after having surgery to explore the wound, did the patient learn that the nerve was sewed up causing the nerve to die since there was no blood flow to that nerve.

The operative report was clear: "The ulnar nerve was tied off, resulting in death of the nerve." Unfortunately for this man, the ulnar nerve should never have been touched. The doctor mistook the nerve for a blood vessel and put stitches into it. Even worse, the hospital staff failed to recognize the ongoing nerve injury on every follow-up visit.

Liability was clear. Damages were not.

Shades of grey allow the defense attorneys to argue that even though their doctor or hospital staff rendered improper medical care, the injuries that the patient suffered are not that bad or not permanent. If true, the value of an injured victims' case becomes limited. However, where the injuries are permanent and affect your daily activities, then with proper documentation and expert witnesses, the value of your case can be significant.

About Gerry

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice, wrongful death and injury cases since 1988. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 250 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something for you. For more information, call him personally at 516-487-8207.

Also, go over to http://medicalmalpracticetutorial.blogspot.com for Gerry's free instructional videos on New York Medical Malpractice, Wrongful Death & Accident law.

Full post as published by New York Medical Malpractice Blog on November 29, 2008 (boomark / email).