Dr. Barry Gustin - Medical-Legal Expert Services

An interesting article appeared recently in the NY Times about lawsuits, plaintiffs, and lending.

The business of lending to plaintiffs arose over the last decade, part of a trend in which banks, hedge funds and private investors are putting money into other people’s lawsuits. But the industry, which now lends plaintiffs more than $100 million a year, remains unregulated in most states, free to ignore laws that protect people who borrow from most other kinds of lenders.

Unrestrained by laws that cap interest rates, the rates charged by lawsuit lenders often exceed 100 percent a year, according to a review by The New York Times and the Center for Public Integrity. Furthermore, companies are not required to provide clear and complete pricing information — and the details they do give are often misleading.

A growing number of lawyers, judges and regulators say that the regulatory vacuum is allowing lawsuit lenders to siphon away too much of the money won by plaintiffs.

To read the entire NY Times article:  Click Here

US District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania has recently ruled that three plaintiffs' medical expert witnesses meet the Daubert standard for scientific validity in Avandia lawsuits currently before the court. Avandia lawsuits are numerous, with some 3,500 cases filed in California state courts, and 1,200 in Pennsylvania, with all but 250 of those having been settled with GlaxoSmithKline – the maker of the diabetes medication.

The allegation with Avandia is that the drug can cause pathologic bone fractures, stroke, liver damage, and a myriad array of heart disorders that can result in a permanent disability or death.

Recently, I came across a useful code of ethics proposal for expert witnesses on an expert services website (IME) which was carefully thought out and crafted.  It should stimulate some interested discussion.  Please see below.

One of the most frequent medical malpractice issues is the failure to timely diagnose and treat cancer.  An issue that comes up in each case is how much damage was caused by the failure to timely diagnose the malignancy? Unlike a surgical or medication error which can be directly caused by a careless health care provider, cancer is usually not caused by the physician involved in the patient’s care.  In most instances the presence of cancer is the unfortunate consequence of nature.

Credibility is a key attribute in a medical expert witness, every trial lawyer would agree. The medical expert must come across as experienced, well-informed, sincere, and believable.  But how is this credibility determined when first seeking which experts to use on any given matter? What attributes provide the best predictors of how the expert will measure up in the eyes of a jury?

When hiring an expert, the most important quality to look for is someone who presents well.  Assess how he speaks, how he appears, and his degree of comfort with himself and his area of expertise.  If it is not possible to meet with him before hiring him, then ask for several references from attorneys for whom he has testified.  This is because, as a rule, jurors will tend to believe a medical expert who presents and appears well.  Of course, the content of his testimony is crucial too, but if this information cannot be conveyed properly, it will difficult for a medical expert to succeed.  The medical expert can have spotless credentials and plenty of experience, but if, for whatever reason, he does not present well to a jury, the jury may focus on the absence of those qualities and never really hear the testimony.

When expert witnesses are targeted for malpractice by the attorney's client, can experts turn and sue the attorney who hired them?  A California appeals court has ruled that they can.

May a medical expert witness switch sides in a lawsuit? Unlike the lawyers in a case, no rule expressly stops a medical expert from "hopping the fence." After all, the conventional wisdom is that the expert's allegiance is to the truth, not to any one party. But just because an expert has the opportunity to switch sides doesn't necessarily make it the right thing to do. Switching sides can have adverse consequences. For one, the expert could be disqualified. For another, the lawyer could be sanctioned. And if either of those happens, the medical malpractice case could be nonsuited.

Last week, the FDA finally forced the drug maker of Fosamax, an osteoporosis drug, to add a warning about the risk of a Fosamax thigh bone fracture.  Doctors who continue to prescribe Fosamax are continuing to expose themselves to medical malpractice lawsuits.

Fosamax (alendronate sodium) is a popular medication prescribed to treat osteoporosis and reduce the risk of fractures by preventing bone turn-over. However, side effects of Fosamax have been linked to decay of the jaw bone, known as osteonecrosis of the jaw, and reports of low-energy femur fractures, typically occurring with falls from standing height or less.

Many people both in medicine and in law talk incessantly about the need to enact aggressive tort reform to protect the healthcare and pharmaceutical industries from "frivolous" lawsuits.  This they claim will also short-circuit healthcare costs that are spiraling out of control.  Regarding protecting industries from unwarranted lawsuits, is this correct?

A physician's partner or colleague has been sued for malpractice, and that physician has been subpoenaed by the plaintiff to give testimony about what happened. The subpoenaed physician believes that his partner's/colleagues's care did indeed deviate from recognized standards. While he must be honest, he is also reluctant to say things that could ruin his friend's career, and perhaps jeopardize his relationship. Fortunately, the situation may not be as bad as it seems.

A physician can be compelled to testify about what he knows and what he did. But he cannot be subpoenaed to offer an opinion on what his colleague should have known or should have done. Courts distinguish between factual testimony -- the knowledge of what he saw, what he did, and what he said -- and what is thought about what someone else did--so called, expert witness testimony.