Dr. Barry Gustin - Medical-Legal Expert Services

A major revision to the federal rules governing expert witness reports is on track to take effect in December of 2010. Many lawyers and virtually all experts alike agree that the changes are long overdue.  No longer would Rule 26 of the Federal Rules of Civil Procedure allow full discovery of draft expert reports and require broad disclosure of any communications between an expert and trial counsel, as has been the case ever since the rule's revision in 1993.

Instead, under proposed amendments to Rule 26, those communications would come under the protection of the work-product doctrine. The amendments would prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still allowed would be full discovery of the expert's opinions and of the facts or data used to support them.

Is there a duty for physicians to serve as medical expert witnesses? The American College of Physicians (ACP) and other groups codify in various position papers that, as members of a profession with specialized knowledge and expertise that may be needed in judicial or administrative processes, the physician does have such a duty as a part of her or his professional activities.

When it comes to medical malpractice in the emergency medicine department, the usual problem is a missed diagnosis and the failure to either admit the patient or call in a consultant. Bad outcomes occur when emergency physicians fail to maintain a high index of suspicion.

An FDA panel has voted against the current version of the opioid risk evaluation and mitigation strategies (REMS) plan. Such a plan is critical to curb the misuse, abuse, and accidental overdoses related to these agents and to ensure opioids are used appropriately. However, experts feel the proposed approach does not go far enough to protect patients.  It is unclear if the FDA agrees with this.

Over the years, I have reviewed many cases and read many physician defendant depositions in medical malpractice actions.  I have found that there is no standard format used by attorney's to obtain important and relevant information from the defendant physician.  For your interest, the following is a list of questions I was able to glean from hundreds of physician defendant depositions.

When patients are transferred from one doctor to another, or from an outpatient setting to a hospital or nursing home, there is an increased chance of a serious mishap that can lead to a medical malpractice lawsuit. Who is ultimately found liable for fumbling the patient handoff may be up to a jury to decide years after the event. Plaintiffs' attorneys generally will sue everyone involved in the patients' care – at least initially -- regardless of their degree of accountability, until the facts are clear.

Problems with handoff communication are listed as one of the root causes in up to 70% of adverse sentinel events compiled by the Joint Commission. The potential for something to go wrong -- needed follow-up care that slips through the cracks or vital information that isn't communicated in a timely fashion -- can have life or death impact for patients. It's also a leading driver of malpractice lawsuits against health professionals.

Toxicologists when reviewing cases are often faced with a subject in question that had altered mental status as a consequence of the effects of illicit substances.  In this setting, dealing with aggressive patients can make a big difference in outcome. Patient death or injury resulting from the use of restraint and seclusion is an increasing concern in the field and in prison. Excessive and inappropriate TASER use has also been associated with sudden death.  A well-known 1998 article documented 142 restraint-related deaths nationwide over a decade, 40% of which were attributed to unintentional asphyxiation during restraint. Restraint not only poses a risk for patient harm but also is physically and emotionally traumatizing for staff involved in the incident. Many have pointed out that high restraint rates are now understood as evidence of treatment failure. Since the Joint Commission began tracking sentinel events in 1996, it has reviewed the deaths of 20 patients who were physically restrained. Since then, the Joint Commission has advocated standards based on prevention as an intervention and the use of restraint as a last resort only after the least restrictive measures are exhausted.

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Optimal medical expert witness management often makes the difference between successfully managing your case or undermining it.  Over the years I have identified ten common mistakes attorneys make when hiring and managing experts.  Any one of these mistakes can have significant consequences ranging from overspending to losing your case.  Here's the list of ten:

Why is medical expert witness testimony necessary and what qualifies an expert witness?  The overwhelming consensus in the legal community is that medical expert testimony is usually necessary to sustain a medical malpractice or personal injury action.  However, before the medical expert can be of value, he or she must satisfy the court requirements related to medical expert qualifications.

When you interview prospective clients, consider that the medical-legal action, be it medical malpractice, personal injury, product liability, toxic tort, overdose or whatever, often begins prior to the alleged negligence.  Whatever type of treatment, procedure, therapy or operation caused injury to your Client, the case really begins prior to that point in time. For example, was the medical treatment, procedure, operation, etc, truly indicated? Did the patient have sufficient conservative therapy as well as less dangerous alternative care? Was the patient truly informed of these alternatives?

The standard of care must be fully understood by a consulting medical expert witness who is involved in a medical legal action, particularly medical malpractice.  Let's talk about what constitutes standard of care.  Once a physician/patient relationship has been established, the physician is obliged to diagnose and treat the patient’s illness or injury with “due care”.  Failure to do so constitutes negligence and is actionable.

Methadone as a substitute for chronic narcotic medication can kill within the first week or two of taking it, leading necessarily to medical malpractice litigation.  Personal Injury attorneys both defense and plaintiff sooner or later will work on such a case.

Recently the American Society of Anesthesiologists Task Force on Chronic Pain Management produced, for the first time, in more than 10 years, produced new guidelines that cover a range of advances not included in the initial version published in 1997. 

Chronic pain is a common phenomenon seen in a variety of settings and is defined as pain of any cause not directly related to cancer extending in duration beyond the period of normal healing, and adversely affecting the function or well-being of the individual.  The purpose of the new guidelines is to optimize pain control, enhance functional abilities and physical and psychologic well-being, enhance quality of life, and minimize adverse outcomes such as the sudden death I describe above.

Medical expert witnesses in all medical disciplines including medical toxicology and pharmacology are essential to establishing whether or not the standard of care was met in any particular medical legal case.  The standard of care holds the medical professional to that specific behavior that would be expected of a reasonable person possessing the same or similiar skills or knowledge under similar circumstances.  In medical malpractice cases, the physician's actions must be measured against those expected of other similar physicians.  This often means that similar physicians are those in the same medical specialty.  There are exceptions to this caveat because physicians in different specialties can care for the same type of patients or perform the same type of procedures.  An example of this would be Orthopedic spine surgeons and Neurosurgeons who both operate on the spine.

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Res ipsa loquitur is a Latin phrase meaning “the thing speaks for itself”. It is a legal doctrine which is sometimes used by plaintiffs in negligence actions and other medical legal cases, including medical negligence, and sometimes obviates the need for medical expert witness testimony. Accordingly, medical negligence may be presumed if the defendant hospital, for example, had exclusive control of whatever caused the injury. This may be so even in the absence of specific evidence that a negligent act was committed. It suggests further that in the absence of negligence, the injury would not have occurred. The burden of proof is thus shifted to the defendant to rebut the presumption of negligence.

When a patient comes to an Emergency Room complaining of chest pain, the Emergency Physician is faced with complex and difficult decisions. Chest pain is a key issue in many medical malpractice actions, and is a facet in medical legal case evaluation that is poorly understood. The physician must decide whether a major diagnostic or therapeutic intervention should be used and then must decide whether the patient is to be admitted or sent home. choosing wrong may result in catastrophic consequences for the patient making the evaluation of chest pain on of the most challenging and studied presenting medical problems, from both the clinical and risk management point of view.

For attorneys involved in litigation concerning misdiagnosed chest pain, it is essential that the complexity of its evaluation be understood and appreciated.

The physician's evaluation reveals that when Mr. Jones walks he is a bit unstable, a bit wobbly. The physician writes an order for "out of bed with assistance only". The nurses are aware of the order and before the doctor leaves the hospital he also explained that order to Mr. Jones. Mr. Jones told the physician that he understood and would comply with this order. However, after the doctor left, Mr. Jones decided to go to the bathroom on his own and did not call a nurse for assistance. Unfortunately, he fell and fractured his hip.

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Click here for the full paper.

ABSTRACT

Medical negligence claims evolve from polluted medical care. The allegedly substandard care leaves a carbon footprint which can be traced to its origins. Experience with common themes in medical malpractice lawsuits, and an intimate, first-hand knowledge of what proper healthcare delivery actually involves, allows a prospective analysis of negligence claims with the intent to avoid litigation, rather than sustaining the scars of a trial-and-error education.

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Sometimes a physician or hospital has liability when using defective products or equipment, but this is not too common.

As background, the courts have usually imposed strict liability principles against those engaged in the production and commerce of defective products and equipment. They reason that it is unfair and unethical to expect an unsuspecting public to have the knowledge or skill necessary to determine product safety. It has been determined repeatedly that the public should be able to trust those engaged in the manufactur and sale of products. Because the public cannot be expected to protect themselves in such situations, those engaged in the production and commerce of such products and who benefit from their sale, must bear the cost of injuries. The resulting litigation becomes a so-called product liability action.

NOT ALWAYS.

Bad medical outcomes do not necessarily justify a finding of medical negligence. There must be a negligent act that causes the bad outcome. Although such outcomes may suggest to a layperson that negligence has occurred, the attorney must prove that the patient received medical treatment that did not comport with the standard of practice and that the patient suffered significant damages as a result. Actually, there are four requirements, all of which must be present: duty; breach of standard of care; harm; and causation. Their presence or absence should be determined by professional medical case evaluation specialists like myself.

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Let me introduce myself. I am Dr. Barry Gustin, a California-based practicing Emergency Physician and Toxicologist, Public Health consultant and Forensic Expert who has worked in the field of Medical Forensics as an effective and successful consultant and testifying expert for several decades. As the former Medical Director of the nation's largest and most well-known medical-legal organization, American Medical Forensic Specialists, Inc., I have personally reviewed tens of thousands of medical-legal cases. As the primary founder of the American College of Forensic Medicine, I have been in a unique position to participate in the development of the field. The purpose of this blog is to share my knowledge and experience with you.

This blog is intended to provide trial attorneys with information relevant to h/h personal injury practice. I will try to update it with new material on a weekly or biweekly basis so stay tuned.

Health care practitioners have a code of ethics to which they must adhere. Because of the Hippocratic Oath, and the underlying power of their state and national licenses, they are held to a high ethical standard in their medical practice. Patients place their trust in physicians, and thus physicians are bound by this trust. Doctor-patient relationships by nature have open confidential communication as its foundation. In this context ethical principles must be strictly adhered to.

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There are exceptions, however. If the expert has a lower level of training than that held by the defendant physician, he/she may still be able to opine provided that 1) he/she completed the same lower level of specialty training and 2) the standard of care in question is ordinarily associated with that lower level of training.

In Short v. Atlantic Care Regional Medical Center, the medical malpractice action was dismissed, the dismissal being upheld on appeal, for failure to provide an affidavit of merit from a medical expert qualified to comment on the relevant standards of care. The plaintiff filed an affidavit of merit from a general practitioner who was determined to be NOT statutorily competent to provide an opinion as to whether the defendant Board-certified Orthopedic Surgeon had deviated from accepted standards of practice under the Affidavit of Merit statute in that State.

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By now most trial attorneys have heard about the case Levine v. Wyeth which will be argued before the U.S. Supreme Court on November 3, 2008. Ms. Levine is a 60'ish year old Vermont women who inadvertently had the drug Phenergan injected by "IV Push" into a hand artery by a physician's assistant. This led to gangrene and amputation of her hand and then later her arm up to her elbow. The medical negligence case was settled last year for $700,000.00. Levine has now sued Wyeth in a product liability action alleging that the product labeling is inadequate. She contends that the Phenegan label should state that it should never be given by direct "IV push".