Dr. Gustin's Blog

Malocurrence vs. Medical Malpractice

Details: Published: Sunday, 31 January 2010 19:02

DOES A BAD MEDICAL OUTCOME MEAN THAT THE DOCTOR HAS BEEN NEGLIGENT?

NOT ALWAYS.

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.

LOSS OF CHANCE Doctrine Discussed...

Details: Published: Monday, 25 January 2010 23:26

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.

Locality Rules and Qualifying Testifying Medical Experts

Details: Published: Tuesday, 09 December 2008 10:25

ocality Rules and Qualifying Testifying Medical Experts: Where do these rules come from and why are they important? Many years ago, there truly was a disparity between the levels of medical care rendered in rural areas versus urban areas. Full-service hospitals were always located in large cities. Physicians and clinics in rural areas had limited facilities, and house calls were common. Standards of medical practice were different for each circumstance. The basic idea was that it would not be proper to hold a rural physician to the same standard as an urban physician. Medical organizations were concerned that if a rural practitioner were held to a higher standard in an environment that could not support those higher standards, physicians would avoid practicing medicine in rural areas. Also, in those days, there was no uniformity in training and there were no standardized board exams. For certain, urban physicians had better training and support than rural physicians.

Overqualified Medical Malpractice Expert Witnesses

Details: Published: Tuesday, 02 December 2008 23:47

It is common knowledge that hiring an underqualified medical malpractice expert witness is detrimental to a case. It might come as a surprise that hiring an overqualified expert could be just as harmful. I once heard a trial lawyer say, "why would anyone want to crack a walnut with a sledgehammer?" This often applies to medical negligence cases. Attorneys sometime assume that the better qualified and more famous an expert is, the better it will be for their case. A few years ago I was a designated Emergency Medicine expert on a case in rural Texas. The defendants were an Emergency Physician and a General Practitioner. The case had to do with a missed ectopic pregnancy, its rupture, and the unfortunate death of a young woman.

Ethics Violations and Medical Malpractice

Details: Published: Tuesday, 25 November 2008 16:26

Can physicians be sued for ethics violations? You bet they can! This blog entry will discuss some of the issues around medical ethics.

Health care practitioners have a code of ethics to which they must adhere. Because of the Hippocratic Oath, and the underlying power of their state and national licenses, they are held to a high ethical standard in their medical practice. Patients place their trust in physicians, and thus physicians are bound by this trust. Doctor-patient relationships by nature have open confidential communication as its foundation. In this context ethical principles must be strictly adhered to.

More On Same Specialty Testifying Medical Experts...

Details: Published: Wednesday, 12 November 2008 09:45

It is prudent strategy to have a testifying medical expert who is board-certified in the same medical specialty as the defendant physician. This ensures that the expert has the proper training to testify regarding the standards of care of the defendant practitioner with similar medical training. In this way, the expert cannot be impugned for being underqualified.

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

Details: Published: Friday, 07 November 2008 10:10

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.

The Controversial Case of Levine v Wyeth

Details: Published: Thursday, 30 October 2008 00:41

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".

Should you litigate without a medical expert?

Details: Published: Friday, 24 October 2008 11:18

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.

Malocurrence vs. Medical Malpractice

LOSS OF CHANCE Doctrine Discussed...

Locality Rules and Qualifying Testifying Medical Experts

Overqualified Medical Malpractice Expert Witnesses

Ethics Violations and Medical Malpractice

More On Same Specialty Testifying Medical Experts...

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

The Controversial Case of Levine v Wyeth

Should you litigate without a medical expert?

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