Dr. Gustin's Blog

What Constitutes the Standard of Care for Medical Expert Witnesses in Medical-Legal Actions including Medical Malpractice

The standard of care must be fully understood by a consulting medical expert witness who is involved in a medical legal action, particularly medical malpractice.  Let's talk about what constitutes standard of care.  Once a physician/patient relationship has been established, the physician is obliged to diagnose and treat the patient’s illness or injury with “due care”.  Failure to do so constitutes negligence and is actionable.

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Chronic Pain: Avoiding Addiction, Death, Medical Malpractice

Methadone as a substitute for chronic narcotic medication can kill within the first week or two of taking it, leading necessarily to medical malpractice litigation.  Personal Injury attorneys both defense and plaintiff sooner or later will work on such a case.

Recently the American Society of Anesthesiologists Task Force on Chronic Pain Management produced, for the first time, in more than 10 years, produced new guidelines that cover a range of advances not included in the initial version published in 1997. 

Chronic pain is a common phenomenon seen in a variety of settings and is defined as pain of any cause not directly related to cancer extending in duration beyond the period of normal healing, and adversely affecting the function or well-being of the individual.  The purpose of the new guidelines is to optimize pain control, enhance functional abilities and physical and psychologic well-being, enhance quality of life, and minimize adverse outcomes such as the sudden death I describe above.

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Medical Expert Witnesses are Necessary to Determine Whether the Standard of Care was met

Medical expert witnesses in all medical disciplines including medical toxicology and pharmacology are essential to establishing whether or not the standard of care was met in any particular medical legal case.  The standard of care holds the medical professional to that specific behavior that would be expected of a reasonable person possessing the same or similiar skills or knowledge under similar circumstances.  In medical malpractice cases, the physician's actions must be measured against those expected of other similar physicians.  This often means that similar physicians are those in the same medical specialty.  There are exceptions to this caveat because physicians in different specialties can care for the same type of patients or perform the same type of procedures.  An example of this would be Orthopedic spine surgeons and Neurosurgeons who both operate on the spine.

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RES IPSA LOQUITUR, Medical Expert Witnesses, and your Medical Legal Case

Res ipsa loquitur is a Latin phrase meaning “the thing speaks for itself”. It is a legal doctrine which is sometimes used by plaintiffs in negligence actions and other medical legal cases, including medical negligence, and sometimes obviates the need for medical expert witness testimony. Accordingly, medical negligence may be presumed if the defendant hospital, for example, had exclusive control of whatever caused the injury. This may be so even in the absence of specific evidence that a negligent act was committed. It suggests further that in the absence of negligence, the injury would not have occurred. The burden of proof is thus shifted to the defendant to rebut the presumption of negligence.

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Chest Pain, Medical Malpractice, and Your Medical Legal Case

When a patient comes to an Emergency Room complaining of chest pain, the Emergency Physician is faced with complex and difficult decisions. Chest pain is a key issue in many medical malpractice actions, and is a facet in medical legal case evaluation that is poorly understood. The physician must decide whether a major diagnostic or therapeutic intervention should be used and then must decide whether the patient is to be admitted or sent home. choosing wrong may result in catastrophic consequences for the patient making the evaluation of chest pain on of the most challenging and studied presenting medical problems, from both the clinical and risk management point of view.


For attorneys involved in litigation concerning misdiagnosed chest pain, it is essential that the complexity of its evaluation be understood and appreciated.


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EMTALA Revisited by an Emergency Medicine Expert Witness

Previously, EMTALA was discussed in the context of emergency medicine expert witness testimony.  EMTALA (Emergency Medical Treatment and Active Labor Act) has increasingly become representative of much that is wrong with our healthcare system.  With overcrowding of the nation's emergency rooms, with diminishing capacity to pay for services, with increased acuity from delayed treatment, the incidence of EMTALA violations has been rapidly increasing.  Not long ago, I wrote an article about EMTALA for the legal publication, PLAINTIFF Magazine, June 2008. I include it here for your information.  Click on the following link to be directed to the article:   Click Here.

'Never Events' and Hospital/Physician Malpractice

A physician's patient, Mr. Jones, is not feeling well and has developed weakness, dizziness, fatigue and poor appetite. He is elderly, around 80 years old, and the physician decides to admit him to the hospital for evaluation and management. By and large, he is otherwise in pretty good health and is competent physically and mentally.

The physician's evaluation reveals that when Mr. Jones walks he is a bit unstable, a bit wobbly. The physician writes an order for "out of bed with assistance only". The nurses are aware of the order and before the doctor leaves the hospital he also explained that order to Mr. Jones. Mr. Jones told the physician that he understood and would comply with this order. However, after the doctor left, Mr. Jones decided to go to the bathroom on his own and did not call a nurse for assistance. Unfortunately, he fell and fractured his hip.

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EMTALA Violations, ER Overcrowding, and Litigation

The following excerpt on EMTALA (Emergency Medical Treatment and Active Labor Act) is taken from a paper written by Dr. Damon Dietrich and Dr. Michael Crapanzano. The paper is entitled, "Emergency Department Diversion and Overcrowding: A Public Health Crisis." The paper discusses EMTALA in the context of ED diversion (EDD) and ED overcrowding (EDO).

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What is Proximate Cause?

One of the most challenging aspects of proving a medical negligence is identifying and substantiating the proximate cause of the injury sustained by the plaintiff. Without proving causation, an otherwise meritorious case will be lost. The plaintiff must provide expert opinions that prove that the direct and legal cause (proximate cause) of the injury was a breach in the standard of practice by the defendant. Thus, proximate cause is the event(s) connected to the specific injury(s), or in other words, the proximate cause is the primary cause of the injury. It is essentially the determining event.

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