Dr. Gustin's Blog

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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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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