Dr. Gustin's Blog

Factual Testimony vs. Medical Expert Witness Testimony: What's the Difference?

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.

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Alternative Dispute Resolution and Medical Malpractice Cases

Binding arbitration is often discussed as one way to reform our medical malpractice tort system, and the movement towards binding arbitration has been gathering steam for the past few years.

Many physician groups have formed medical malpractice insurance risk-retention groups. These groups require that patients sign an arbitration agreement before receiving care and treatment. The agreement states that any lawsuit brought against a group member must be decided by binding arbitration, before a private arbitrator, rather than by a jury.  If a patient won't sign the agreement, they cannot see a physician from that group.  Even large medical professional insurance companies are now running pilot programs that involve binding arbitration.

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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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