Dr. Gustin's Blog

Using the Right Medical Experts for Case Evaluation, Medical Record Review, and Expert Witness Testimony

Finding the right medical experts for case evaluation, medical record review, and Expert Witness Testimony is a challenge for even the most seasoned trial attorney.  Just as it is harmful to your medical malpractice case to litigate without a medical expert, it is also damaging to litigate with the wrong medical expert, that is, using medical specialists from the wrong medical specialties. As a general rule, the medical expert should have the same professional qualifications as the defendant physician.

In Short v. Atlantic Care Regional Medical Center, the medical malpractice action was dismissed, the dismissal being upheld on appeal, for failure to provide an affidavit of merit from a medical expert qualified to comment on the relevant standards of care. The plaintiff filed an affidavit of merit from a general practitioner who was determined to be NOT statutorily competent to provide an opinion as to whether the defendant Board-certified Orthopedic Surgeon had deviated from accepted standards of practice under the Affidavit of Merit statute in that State.


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The Controversial Case of Levine v Wyeth

By now most trial attorneys have heard about the case Levine v. Wyeth which will be argued before the U.S. Supreme Court on November 3, 2008. Ms. Levine is a 60'ish year old Vermont women who inadvertently had the drug Phenergan injected by "IV Push" into a hand artery by a physician's assistant. This led to gangrene and amputation of her hand and then later her arm up to her elbow. The medical negligence case was settled last year for $700,000.00. Levine has now sued Wyeth in a product liability action alleging that the product labeling is inadequate. She contends that the Phenegan label should state that it should never be given by direct "IV push".

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Should you litigate without a medical expert?

It would not be wise. Attorneys and pro se plaintiffs sometimes think that their case is such a "slam dunk" that they don't need a medical expert. Don't make this mistake! Attorneys expose themselves to legal malpractice if they choose not to produce an expert and they lose. In Cole v. Atlantic Health Systems, Inc., Appellate Division, A-6320-03T2, June 20, 2005, the plaintiff's complaint was dismissed for failure to provide an expert report. Although a medical expert had been engaged to provide an opinion, he was forced to withdraw for health reasons, and plaintiff, counting on what she felt was a clear cut case of negligence, failed to engage a substitute medical expert in time.

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Welcome to Dr. Gustin's Blog

Hi everyone!

Let me introduce myself. I am Dr. Barry Gustin, a California-based practicing Emergency Physician and Toxicologist, Public Health consultant and Forensic Expert who has worked in the medical-legal field as a consultant and testifying expert for several decades.

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