Dr. Gustin's Blog

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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What the Court Looks for in Medical Expert Witness Testimony

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.

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Where Does Your Medical-Legal Case Really Begin?


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?


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