Dr. Gustin's Blog

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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Health Care Reform: From an Attorney/Physician Perspective

Healthcare reform which hit a big road block a month ago, is beginning to gather steam again. I came across an interesting review and perspective on the topic and thought I would share it with my readers. It is written by Dr. David O'Dell who is also an attorney and a business specialist. (MD, JD, MBA). You can read his paper directly by Clicking Here.

Avoiding Medical Negligence Claims

The following very interesting white paper was written by David O'Dell, MD, JD and the full paper can be viewed on his website: http://www.myexecutiveweb.com/dodell/contact_me/index.htm

Click here for the full paper.


Medical negligence claims evolve from polluted medical care. The allegedly substandard care leaves a carbon footprint which can be traced to its origins. Experience with common themes in medical malpractice lawsuits, and an intimate, first-hand knowledge of what proper healthcare delivery actually involves, allows a prospective analysis of negligence claims with the intent to avoid litigation, rather than sustaining the scars of a trial-and-error education.

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Issues around Defensive Medicine and Medical Malpractice Risk

Every day, doctors face pressure to choose between practicing defense medicine or trying to lower healthcare costs. A patient comes in, and even if the physician thinks the best treatment is 'wait and see,' they must think twice about that course of action. If he or she misses a diagnosis and the patient sues, the attorney will blame the doctor for not having done more diagnostic tests.

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Talking about Product Liability and Medical Legal Experts


Sometimes a physician or hospital has liability when using defective products or equipment, but this is not too common.

As background, the courts have usually imposed strict liability principles against those engaged in the production and commerce of defective products and equipment. They reason that it is unfair and unethical to expect an unsuspecting public to have the knowledge or skill necessary to determine product safety. It has been determined repeatedly that the public should be able to trust those engaged in the manufactur and sale of products. Because the public cannot be expected to protect themselves in such situations, those engaged in the production and commerce of such products and who benefit from their sale, must bear the cost of injuries. The resulting litigation becomes a so-called product liability action.


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Organizing the Medical Record for Healthcare Expert Witness Review

In preparation for your healthcare expert witness's review of the case, at the outset, counsel should make sure that ALL the relevant medical records have been obtained and are ready for submission. These include, but are not limited to, emergency room records or admission chart, operative reports, progress notes, nurses' notes, physicians' orders, lab reports, x-rays and other films, consultants' reports, social worker notes, discharge summaries, autopsy reports, and death certificates. The medical expert will base his/her opinions solely on the information submitted.


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Malocurrence vs. Medical Malpractice



Bad medical outcomes do not necessarily justify a finding of medical negligence. There must be a negligent act that causes the bad outcome. Although such outcomes may suggest to a layperson that negligence has occurred, the attorney must prove that the patient received medical treatment that did not comport with the standard of practice and that the patient suffered significant damages as a result. Actually, there are four requirements, all of which must be present: duty; breach of standard of care; harm; and causation. Their presence or absence should be determined by professional medical case evaluation specialists like myself.

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LOSS OF CHANCE Doctrine Discussed...

This controversial doctrine is being seen with increasing frequency in medical negligence cases in which the patient had some chance of survival, or chance for a better outcome, that could have been 50 percent, or lower, prior to the alleged medical negligence. We see the emergence of this doctrine in its increasing use by plaintiff attorneys in claims against treating physicians for failure to act in a timely manner in many but not all states. The loss of chance can involve failure to timely diagnose an illness (especially cancer), failure to timely refer a patient to a specialist, failure to call for emergency assistance, failure to timely perform surgery, failure to timely admit or transfer a patient, and failure to prescribe appropriate medications, often involving cancer medications.

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