Dr. Gustin's Blog

Are Attorneys Liable for their Expert's Opinions?

When expert witnesses are targeted for malpractice by the attorney's client, can experts turn and sue the attorney who hired them?  A California appeals court has ruled that they can.

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When Medical Experts Switch Sides in Medical-Legal Cases

May a medical expert witness switch sides in a lawsuit? Unlike the lawyers in a case, no rule expressly stops a medical expert from "hopping the fence." After all, the conventional wisdom is that the expert's allegiance is to the truth, not to any one party. But just because an expert has the opportunity to switch sides doesn't necessarily make it the right thing to do. Switching sides can have adverse consequences. For one, the expert could be disqualified. For another, the lawyer could be sanctioned. And if either of those happens, the medical malpractice case could be nonsuited.

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Fosamax Causes Femur Fractures: A spate of Medical-legal lawsuits

Last week, the FDA finally forced the drug maker of Fosamax, an osteoporosis drug, to add a warning about the risk of a Fosamax thigh bone fracture.  Doctors who continue to prescribe Fosamax are continuing to expose themselves to medical malpractice lawsuits.

Fosamax (alendronate sodium) is a popular medication prescribed to treat osteoporosis and reduce the risk of fractures by preventing bone turn-over. However, side effects of Fosamax have been linked to decay of the jaw bone, known as osteonecrosis of the jaw, and reports of low-energy femur fractures, typically occurring with falls from standing height or less.

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Is More Medical Legal Tort Reform Necessary?

Many people both in medicine and in law talk incessantly about the need to enact aggressive tort reform to protect the healthcare and pharmaceutical industries from "frivolous" lawsuits.  This they claim will also short-circuit healthcare costs that are spiraling out of control.  Regarding protecting industries from unwarranted lawsuits, is this correct?

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Factual Testimony vs. Medical Expert Witness Testimony: What's the Difference?

A physician's partner or colleague has been sued for malpractice, and that physician has been subpoenaed by the plaintiff to give testimony about what happened. The subpoenaed physician believes that his partner's/colleagues's care did indeed deviate from recognized standards. While he must be honest, he is also reluctant to say things that could ruin his friend's career, and perhaps jeopardize his relationship. Fortunately, the situation may not be as bad as it seems.

A physician can be compelled to testify about what he knows and what he did. But he cannot be subpoenaed to offer an opinion on what his colleague should have known or should have done. Courts distinguish between factual testimony -- the knowledge of what he saw, what he did, and what he said -- and what is thought about what someone else did--so called, expert witness testimony.

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Alternative Dispute Resolution and Medical Malpractice Cases

Binding arbitration is often discussed as one way to reform our medical malpractice tort system, and the movement towards binding arbitration has been gathering steam for the past few years.

Many physician groups have formed medical malpractice insurance risk-retention groups. These groups require that patients sign an arbitration agreement before receiving care and treatment. The agreement states that any lawsuit brought against a group member must be decided by binding arbitration, before a private arbitrator, rather than by a jury.  If a patient won't sign the agreement, they cannot see a physician from that group.  Even large medical professional insurance companies are now running pilot programs that involve binding arbitration.

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Managing Your Medical Experts When They Disagree With Each Other

It happens frequently between opposing medical experts in litigation. One side brings on a consulting medical expert to look for holes in the work of the testifying medical experts on the other side.  But what happens when one medical expert exposes another medical expert's work as flawed – and both medical experts are working for you?  What if your own expert comes to you and questions the methods or conclusions of another of your experts?

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Revision to Federal Rule 26 Expert Reports

A major revision to the federal rules governing expert witness reports is on track to take effect in December of 2010. Many lawyers and virtually all experts alike agree that the changes are long overdue.  No longer would Rule 26 of the Federal Rules of Civil Procedure allow full discovery of draft expert reports and require broad disclosure of any communications between an expert and trial counsel, as has been the case ever since the rule's revision in 1993.

Instead, under proposed amendments to Rule 26, those communications would come under the protection of the work-product doctrine. The amendments would prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still allowed would be full discovery of the expert's opinions and of the facts or data used to support them.

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Are Physicians Obligated to Serve as Medical Expert Witnesses?

Is there a duty for physicians to serve as medical expert witnesses? The American College of Physicians (ACP) and other groups codify in various position papers that, as members of a profession with specialized knowledge and expertise that may be needed in judicial or administrative processes, the physician does have such a duty as a part of her or his professional activities.

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