Lack of Informed Consent in a New York Medical Malpractice Case; Attorney Oginski Explains

Lack of Informed Consent in a New York Medical Malpractice Case; Attorney Oginski Explains


So now let’s talk about lack of informed consent. When your client tells you the doctor never
told me I could suffer this complication, do you think they have a valid basis for a
case? The answer is maybe. And I have to share this with you also. If you take on a case where that is the only
claim being alleged, that the doctor did not tell me I could suffer the following problems,
I’m going to strongly suggest to you to run very fast away from that type of case. And there’s a specific reason for that. You never, ever want to rest on the fact that
you have a case where the only claim being what’s called ‘lack of informed consent.’ What does that mean? It means the patient claims that the doctor
failed to give them sufficient information so they can make an educated decision about
whether this procedure was right for them. And if the patient didn’t have that knowledge
and information, then how could they possibly make an educated decision about whether or
not this was the right choice for them? So here’s what typically happens. The patient says “The doctor never told me
I could have this complication.” The doctor turns around and says, “Of course
I told them.” So now you have a classic he said/she said
situation. And if that’s all you’re resting your hat
on, on a medical malpractice case, I will tell you right now you will lose 100 out of
100 times. Why? Because juries in the state of New York like
doctors. They do. And here’s a couple of statistics that you
may not know about. The statistics are that 95% of all valid cases
in New York ultimately settle prior to trial. Of the remaining 5% that go to trial, two-thirds
of them are won by the doctors and hospitals. So the injured victim is at a significant
disadvantage when bringing a case to trial. Not that they can’t win but it’s a very challenging
effort. Okay. So now we’re talking about the scenario of
lack of informed consent. So why don’t you just bring a case against
the doctor for lack of informed consent? Because now a jury has to decide who they
like better. Do they believe the doctor who say I did,
I did go ahead and tell the patient about these risks, benefits and alternatives? And the patient says no, he didn’t. Now, here’s something else interesting. Imagine this. With every procedure, with every medication,
there are always risks associated with everything a doctor does. One of the most obvious — the biggest risk
ever — is you can die. You can die from anesthesia. You can die from the procedure. Okay? What do you think would happen if the doctors
told all of us that every time you’re going to have a procedure, there’s a likelihood
you’re going to die? How many of you think that patients would
ever have surgery? Have a procedure done? Most of us wouldn’t. Because we wouldn’t take that obvious risk,
even though it’s a very minor risk but it’s the most significant one. So what always winds up happening is I get
the call that says, “Mr. Oginski, I want you to evaluate my case. I think the doctor didn’t tell me about the
risks.” And I say really? Did they tell you about any risks? “Well yes. They told me I can get infections, I can get
bleeding, I can get injury to another organ.” Okay. And what injury did you suffer? “Well, I had cataract surgery and now I’m
blind.” Okay. Now. In case you don’t know, that is a risk and
a complication that can occur from well performed surgery. So I tell the patient, I say listen, are you
telling me that the doctor didn’t describe to you that you could go blind following this
procedure? “Yes.” Did you read the form that they gave to you? “Well, I had my husband read it.” Did he read it? “No, he just signed it. They said sign here.” Okay. So the bottom line is these doctors, for the
most part, tell the patients about the most significant or most likely risks. They don’t go into the detail of every possible
risk otherwise they’d be there for hours and nobody would ever have procedures.

One thought on “Lack of Informed Consent in a New York Medical Malpractice Case; Attorney Oginski Explains

  1. Have you ever had to explain this concept to your client?

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