Dr. Barry Gustin - Medical-Legal Expert Services

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 medical-legal field as a consultant and testifying expert for several decades. As the former Medical Director of the nation's largest and probably best known medical-legal organization, American Medical Forensic Specialists, Inc., (AMFS) 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 directly in the development of the field of Forensic Medicine. 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".