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How many times have you read the headlines in the newspaper "Man wins $20 Million," "Woman awarded $35 Million Dollars after slipping on banana peel," "Jury verdict of $17 Million for brain damaged infant."

Don't you feel envious, even for just a moment? Don't you feel jealous that someone, somewhere, is going to get all those millions of dollars?

Well, that might be your first impulse, but looking at the facts you realize that you wouldn't want to trade places with that injured victim- ever.

During closing arguments in a trial, an attorney will talk about how much money they feel their client is entitled to. A good analogy is to imagine someone taking out a classified ad in the newspaper with the following headline: "$10 Million Dollars- Free! Just show up tomorrow morning." Don't you think every single person in the world would show up?

But wait! Before you can get your "Free $10 Million Dollars" you first must be a victim of medical malpractice. You must suffer brain damage because the anesthesiologist put the airway tube into your stomach instead of your airway. How many people do you think would still line up outside the door seeking the "Free $10 Million Dollars?"

There may be some crazy folks who don't care what they do for that kind of money. But hold on...what if there are more conditions before you can get that money?

Before you can ever see one dime, you have to be permanently and forever disabled; confined to a wheelchair, have no bowel control, and require a full-time nurse to attend to your every need. You need help eating, feeding, going to the bathroom, waking up and going to sleep. You need physical therapy 5 days a week, and you can only communicate with your family with grunts and moans.

How many people do you think would still take the money under those circumstances?

I don't know anyone who would go to that length to get $10 Million Dollars- even if someone was giving it away 'Free'. The next time you read the news headlines where some injured victim won millions of dollars don't think what they'll ultimately receive after appeals are exhausted. I guarantee you, they'd rather have their health than any amount of money. That money isn't going to make them healthy and whole again. It'll only provide the best medical care they can buy to support them and their broken family.

The next time you see an injured victim winning a large award, take a close look at the facts of the case, and the injuries that person suffered before wishing you were in their shoes. Doing so will make you a better person.

Attorney Oginski has been in practice for over 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client's are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client's case from start to finish.

Gerry represents injured people in injury cases and medical malpractice matters in Brooklyn, Queens, New York City, the Bronx, Staten Island, Nassau and Suffolk Counties. You can reach him at http://www.oginski-law.com, or 516-487-8207. All inquiries are free and totally confidential.

# posted by sr8653 : 11:59 PM  0 comments

QUESTIONS TO ASK THE DEFENDANT DOCTOR

WARNING:
Preparation is the entire key to a doctors deposition. You must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.

1.Most lawyers ask the same boring questions at the beginning of every deposition:

a.State your name and address
b.State your qualifications, pedigree, schooling, etc.

Comment: OK, this is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctors deposition this way. Why not go right to the heart of the case with the very first question? You can always get the doctors credentials later or at the end. Besides, the credentials are usually found online or in a curriculum vitae, and dont help except to establish where he went to school and whether hes board certified in any specialty. On more than one occasion the doctor has been disoriented by this approach. They are usually prepared for questions in a lock-step manner and do not expect something so unusual, but legally permissible set of questions right off the bat.

2.Go ahead- ask why they operated on the wrong side of the brain as your first question. Objection, no foundation, says the defense attorney. So where does it say in the CPLR I need to lay a foundation question? Despite this exchange of ideas, if you get such an objection, then simply ask:

a.Didnt you operate on my client on this date?
b.Isnt it true you operated on the wrong leg?
c.Why?

3.I always advocate asking the why question at deposition. It is much better to know the reasons why a doctor did or didnt so something now, rather than save the question for trial. At trial, the reason may be devastating to our case, and if so, I want to know about it now. Besides, when you question a doctor at trial, as an adverse witness, you never want to ask a question in which you dont know the answer. If you do, you subject yourself, your client and your case to inherent risks that could jeopardize the case.

4.Make the doctor read his notes into the record. This is important for anyone who is trying to decipher the doctors handwriting later on. Your expert will definitely need to know whether the scribble is important, and the only way to do that is if the doctor explains, on the record, what his scribble means.

5.Be polite. At all times. You cant imagine how many lawyers dont listen to this recommendation. They think they know it all, are sarcastic, belligerent, annoying, and really annoy everybody in the room. The doctors attitude in responding changes as well. No longer is the doctor as verbose. No longer does the doctor look like the perpetrator. Rather, he might begin to look like a victim if attacks against him and his credibility are kept up.

6.You can still make all your points without being hostile, angry, yelling or screaming. The old saying you get more with honey than with vinegar speaks volumes. Naturally, youre not going to bend over and sweet talk your way to getting the doctors admissions about how he screwed up. But, the key is being professional and knowledgeable. You gain more respect from your adversary- (dont worry about respect or lack of it from the doctor) by being respectful than you do if you are antagonistic.

7.There are times when you want to rile the physician. You want to know if you can push his buttons. You want to know how easily it is to rankle his composure. If its easy to do at deposition, your trial strategy toward this witness just got that much easier.

8.Find out about conversations the doctor had with the patient, family members and other doctors. Remember, conversations are rarely recorded in a hospital record. Make sure you ask the doctor to confirm or deny comments that your client has testified about. Most often, the doctor will claim they no longer recall the conversation. But, if your client does, its much more possible that the conversation occurred. If the doctor denies making certain comments, then you know you have different facts about the same conversation, and a jury will have to ultimately decide who is telling the truth.

9.Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked.

a.Ask whether their hospital privileges have ever been suspended or provoked.

b.Always ask whether the doctor has given testimony before.

i.Ask whether it was an an expert for plaintiff or defendant
ii.Ask whether they were a treating physician
iii.Ask what type of case it was, and the name of the case
iv.Ask whether they were paid for their time in Court to testify in that matter

10.In New York, in a medical malpractice deposition, you must ask opinion questions. The doctor- as a defendant is required to answer expert questions and give answers about his medical opinions.

a.Do you have an opinion, with a reasonable degree of medical probability whether the treatment rendered to Mrs. X was appropriate and within the standard of care?

b.If you have an opinion, what is that opinion?

c.Confront the doctor with other opinions in the medical community that disagree with his school of thought and ask what he thinks of those opinions.

d.Ask the doctor to admit to certain facts- Heres an example:

i.Isnt it true the patient got Ex-lax at 10 p.m.?

ii.Isnt it true that patients with colon tumors shouldnt get ex-lax?

iii.Are there any circumstances when you would prescribe this medication for a patient who had this tumor?

iv.Would you agree that if the patient got ex-lax at 10 pm that would be a departure from good care?

v.Would you agree that the only reason the patient suffered injury was because she got ex-lax at 10 pm?

vi.Would you agree that had she not gotten the ex-lax at 10 pm, she wouldnt have suffered the bowel perforation?

11.Make sure you rule out other potential causes of injury besides the malpractice that you are claiming occurred here. The reason you do this is to learn the potential defense to your case. The defense will always come up with some explanation as to why your argument is not valid. Better you should learn it during the deposition than to head to trial without knowing what their defense will be.

12.Ask many open ended questions. Ask who/ what/ where/ when/ why/ how. By doing this, you will get the doctor to talk and explain. If the doctors is going on and on without directly answering the question- and his attorney is letting him- thats ok. Let him keep talking; you might actually get some useful information. When he stops talking simply say Maybe my question wasnt clear doctor. What I was looking for was.can you answer that question? Always take the blame if the doctor says the question is not clear. Dont respond to him by asking What didnt you understand about my English language question?

13.Ask about medical definitions.

a.What is an endocervical curettage?
b.What is a myocardial infarction?
c.What is hypoxia?
d.Ask whether these definitions are commonly accepted within the medical community, or whether there are other schools of accepted definitions.

14.Ask whether theyve reviewed any medical literature or textbooks prior to coming to the deposition.

a.Did you bring any with you?
b.Which ones did you review?
c.What did you learn from the article? Did it support your position here, or was it contrary to your position?

15.Finally, but not last, ask about credentials, schooling, licensing, board certification- but you should already have this information before your deposition when you research the defendant doctor. I always advocate doing a Google search on the physician to see if theyve authored anything or if theres anything out there online thats worthwhile knowing. I recently learned from an online search where the defendant doctor was fired from his residency and sued the chairman of his department. Needless to say, this information proved very useful at deposition.

___________________________

There have been many books written about how to conduct depositions. The most important factor about taking a doctors deposition has, in my opinion, been the experience of the attorney doing the questioning. Anyone can read from a list of prepared questions. It takes an experienced attorney to listen to the answers and know where you want to go and then develop a strategy on how to get there while protecting your clients rights to the best of your ability.

For more information, please feel free to call me, 516-487-8207

Gerry Oginski

Gerry Oginski is an attorney with over 16 years of experience handling medical malpractice and injury cases involving car accidents, trip and falls, defective products and medication errors. His consultations are always free. He invites injured victims and their family members to call with any legal questions they may have about their injuries or their accident. The consultation is free, and there is never any pressure or obligation at any time. Call Mr. Oginski today and get the information you need to help you through the legal minefield; 516-487-8207, or visit his website at http://www.oginski-law.com

# posted by sr8653 : 8:22 PM  0 comments

Elder abuse is the term used to refer to any knowing, intentional or negligent act by a caregiver or any other person that causes harm to an elderly adult. Most of the nation's abuse against the elderly occurs in nursing facilities and hospitals where families have entrusted the care of their elderly loved one.

The National Center on Elder Abuse (NCEA) periodically collects, analyzes and publishes statistics on abuse of the elderly in the United States. It is estimated that over 500,000 elderly adults are abused each year, and a shocking 84% of those abuse situations remain hidden. Some reports estimate that a startling 5 million elderly adults may be abused each year. It is very difficult to say how many older Americans are abused, neglected or exploited because surveillance of these facilities is limited and the problem remains greatly hidden.

Types of Abuse

There are many different types of abuse that an elderly person can suffer including:

Physical abuse
Sexual abuse
Emotional abuse
Neglect
Abandonment
Financial Exploitation

Signs of Physical Abuse

Bruises, abrasions, broken bones, or burns
Open wounds
Cuts
Signs like broken eyeglasses or torn clothing indicating a struggle

Signs of Sexual Abuse

Bruises around breasts and genital area
Unexplained venereal disease or infection
Torn or bloody undergarments
Unexplained vaginal or anal bleeding

Signs of Emotional Abuse

Upset or agitated
Withdrawn and non-communicative
Exhibits any unusual behavior
Appears more timid or quieter than usual

Signs of Neglect

Malnutrition
Dehydration
Poor hygiene
Bed sores
Unsanitary living conditions
Untreated health problems

Signs of Abandonment

The elder is left at a nursing facility or hospital
The elder is left at some other public place like a church or grocery store

Financial Exploitation

Financial exploitation is one of the most insidious forms of elder abuse, and it is the most prevalent. Financial exploitation is estimated to be the type of abuse in half of all elderly abuse cases that are reported.

Elders who are frail and not fully able to take care of themselves are vulnerable to abuse. Family members, contractors, telemarketers, church leaders, financial advisers, and healthcare workers are the most common predators on the elderly person's money. Elderly adults who have been financially exploited are often left without the resources they need to care for themselves. Sometimes older adults made destitute by financial exploitation have to turn to public aid for their necessary care.

There are steps to take to ensure your elderly loved one is not taken advantage of by greedy caretakers, family members or healthcare professionals. Power of attorney is a useful legal tool that allows an individual to designate some other party to manage their funds in the event that they are unable to do so.

If your elderly loved one has been abused, neglected or has even died due to someone else's negligence in Missouri or Illinois, please contact the Nursing Home Abuse and Negligence Lawyers at Brown & Brown, Attorneys at Law.

# posted by sr8653 : 7:52 PM  0 comments