Dr. Gustin's Blog

Managing Your Medical Experts When They Disagree With Each Other

It happens frequently between opposing medical experts in litigation. One side brings on a consulting medical expert to look for holes in the work of the testifying medical experts on the other side.  But what happens when one medical expert exposes another medical expert's work as flawed – and both medical experts are working for you?  What if your own expert comes to you and questions the methods or conclusions of another of your experts?

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Revision to Federal Rule 26 Expert Reports

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.

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Are Physicians Obligated to Serve as Medical Expert Witnesses?

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.

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Medical Malpractice in the ER: Maintaining a "High Index of Suspicion"

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.

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The FDA and Control of Opiates, a disaster perpetuated!

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.

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Questions asked of Defendant Physicians in Deposition

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 a defendant physician.  For your interest, the following is a list of questions I was able to glean from hundreds of physician defendant depositions.  Attorneys asked these questions, and I list them here only because it is interesting to see the wide range of approaches.


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Avoiding Medical Malpractice When Patients are Handed Off to Other Physicians

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.

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De-escalating the Toxicologically Altered Aggressive Individual

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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Ten Mistakes Attorneys Make Regarding Medical Experts

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:

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