Legal Question in Personal Injury in New York

Re: Is not having surgery harmful to case?

Not having surgery can be a doubled edged sword. I've dealt with cases where the failure to have surgery negatively affected the plaintiff because the testifying doctors agreed that the damage from injuries would have been abated if the plaintiff had agreed to surgery. Each situation is unique, and you should get more than one opinion, but if you conclude that surgery would be therapeautic for you, you should go ahead regardless of the impact on your case. You can actutally explain it in your favor that you did everything you could to recover from your injuries. Juries ususally respect a plaintiff who are attempting to heal themselves.

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Re: Is not having surgery harmful to case?

The "value" of a personal injury case hinges on many factors, including liability issues, the injuries sustained, the treatment required, the permanency of those injuries, the effect of those injuries on the ability to work and other, more intangible factors like "pain and suffering", loss of services, etc. You have articulated a clear, honest reason as to why you wish to hold off on surgery, at least for now. I believe that the fears that you have about surgery are perfectly understandable and reasonable, and also believe that they can be explained to a jury. The fact that you honestly care about your health and not just trying to increase the value of your case may, in fact, make you a more believable witness and party.

I strongly believe in your right to make informed medical decisions and the need to make them for the right reasons. Your health, now and in the future, is the right reason. I have been practicing for over 20 years and always put the needs of my client first. While I don't know a lot about the specifics of your case based on your question, it does seem, at first glance, that it may be a good one. You should focus on your health, on the proper treatment for you and on getting better. In terms specifically of the surgery that a doctor has prescribed, you should get a second opinion since this really is one of the most important decisions you can make. I hope this helps. If you have any further questions, I would be happy to discuss them with you.

Re: Is not having surgery harmful to case?

Harmful is the wrong word. It can affect the value of the case. However, the doctor has to relate the need for surgery to your accident. I respect my client's right to make an educated decision. I also respect the right of my clients to decide that under no circumstance will they have surgery. With neck and back injuries, though lawyers and judges focus on herniations, medical doctors often look at other factors, such as whether the annular tissue is torn, whether there is impingement on the spinal cord, or issues related to the spinal canal. There are also minimally invasive methods of surgery, as well as other diagnostic approaches to determining the exact type of injury you have. In NY, most lawsuits don't have to be filed for three years. NY County moves cases fairly quickly, provided they remain in Supreme Court. As a result, if there is an ability to wait to file suit, you will have time to make your decisions. I tell my clients that I will not get involved in their medical decisions. However, if a case in progress, and deadlines are looming, I might have to ask them to make their decision, i.e. surgery or no surgery, and not remain on the fence. Your injuries are still in their early stages. Your case will be concluded within the next few years, but the injuries will last a lifetime. If you decide against surgery, should it be a viable option, you might get less for your case, but you eliminate the risks and worries of surgery. If you decide to have surgery, should it be a recommended as a viable option, you need to make sure it will help you physically, and not just increase the value of your case. If a jury believes your condition was pre-existing, you won't get any more money for the surgery. If you decide you want surgery in the future but aren't ready for it, that is where you run into a problem with your case, since jurors rarely believe that someone that hasn't had surgery will have it. There is also a jury charge that allows the jury to consider whether your condition is worse than it would be if you had surgery, and as a result, should the jury award less. You might need to make an appointment ith your lawyer to make sure you are on the same page. Similarly, based on your worries, you might want to get a second doctor's opinion, even if not covered by insurance. Pardon the pun, but you need to know that someone is watching your back (and neck).

Lawrence M. Simon, Esq.

www.BergenLaw.com