by

In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on failure to diagnose or erroneous diagnosis:

Generally, a delay or failure to diagnose a disease is actionable, if it has resulted in injury or disease progression above and beyond that which would have resulted from a timely diagnosis. This situation may be difficult to prove. For example, a patient may ALLEGE that a doctor failed to timely diagnose a certain cancer, resulting in “metastasis” (spread of the cancer to other organs or tissues). But experts may TESTIFY that “micrometastasis” (spreading of the disease at the cellular level) may occur as much as ten years before a first tumor has been diagnosed, and cancerous cells may have already traveled in the bloodstream and lodged elsewhere, eventually to grow into new tumors. Therefore, it may be difficult in some cases to establish that a patient has suffered a worse prognosis because of the failure or delay in diagnosis.

If a patient is treated for a disease or condition that he or she does not have, the treatment or medication itself may cause harm to the patient. This is in addition to the harm caused by the true condition continuing untreated.

Continue reading

by

STRATEGY FOR NEGOTIATIONS The environment for seeking redress for insurance company wrongs is not always “plaintiff friendly.” While juries may be sympathetic, the barriers posed by evidentiary rules, punitive “caps,” and the views of judges and appellate courts to class actions or large punitive “windfalls” must be evaluated before committing your law firm to these suits. They require careful planning and consideration before filing.

Tort reform and the courts’ approaches to punitive damages claims have made some carriers feel more secure that bad faith and punitive damages are not a threat as they were in the 1970’s and 1980’s when insurance bad faith cases matured.

Now, there are still cases where punitive damages are warranted, but the commitment of time, money and the client’s emotional and physical resources is large. For example, Ray Bourhis, a well known insurance bad faith lawyer in San Francisco, has written a telling story of one of his more recent insurance bad faith cases. Anyone doing insurance bad faith work is well advised to read this book.

by

In Dram Shop Laws – Improving Public Safety, dram shop expert witness Maj. Mark Willingham of Alcohol Solutions, LLC, writes:

A foreseeable and preventable tragedy unfolds several times a day somewhere in the United States. Over fifteen thousand people are killed and thousands more are seriously injured in impaired driving crashes in the United Sates each year. Even more shocking is that half of these deaths and injuries can be attributed to drivers who were coming directly from a beverage license premises where they were over-served or allowed to over-consume alcohol.

Beverage alcohol is the only universally available consumer product that has the capacity to cause changes in the consumer’s emotional state, his or her cognitive ability, gross and fine motor skills, and can diminish the drinker’s ability to make rational decisions. Beverage alcohol is widely sold and consumed in businesses that are primarily accessible through the use of personally operated vehicles creating a reasonable expectation that many customers will also drive those vehicles away from the bar or restaurant. Many will be under the influence of the intoxicating effect of the product and unable to safely operate those vehicles. At least 80 million trips are made annually in the United Sates by drivers with a BAC over .08.

Continue reading

by

In Air Rage, aviation expert witness Capt. Bob Norris writes:

A recent issue of a major air carrier’s employee publication noted an almost 200-percent increase between 1994 and 1995 in reports filed with the company by flight attendants describing interference from passengers. The interference included assaulting, threatening, or intimidating crewmembers performing their inflight duties. During this same period, the number of physical assaults experienced by flight attendants at this carrier increased threefold.

An assaults is an action taken toward an individual that creates the threat of bodily harm, the fear of physical injury or that involves actual physical contact of a threatening nature. Abusive or suggestive language, which does not create the threat of violence or harm, even though it may be offensive, is not considered assault. The flight attendant who has been assaulted will have to file the complaint.

Continue reading

by

In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Courts do not agree on this point. Some hold that a hybrid witness who did not prepare an expert report may testify only as to those matters on which they are testifying as a fact witness. E.g., Bynum v. MVM, Inc., 241 F.R.D. 52, 54 (D.D.C. 2007) (holding that a treating physician “‘may describe what she has seen, describe and explain her diagnosis and the treatment she prescribed'” but without a Rule 26 report “‘a treating physician may not testify as to issues of causation, foreseeability, prognosis, and permanency.'” (further citations omitted)).

Other courts hold that a report under Rule 26 is not required if the witness’s proposed opinion testimony, regardless of its substance, arises solely from the witness’s personal knowledge. E.g., Martin v. CSX Transp., Inc., 215 F.R.D. 554, 557 (S.D. Ind. 2003) (“a physician ‘whose proposed opinion testimony will come from his knowledge acquired as a treating physician, is not someone from whom a Rule 26(a)(2)(B) report is required.'” (further citation omitted)).

by

In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on actionable malpractice:

State laws govern the viability of causes of action for medical malpractice. The laws vary in terms of time limits to bring suit, qualifications of “expert” witnesses, cognizable theories of liability, and proper party defendants/proper party plaintiffs. Notwithstanding these differences, there are common requisites for all cases.

First and foremost, a physician must owe a duty to patients before his or her competency in performing that duty can be judged. In U. S. JURISPRUDENCE, a person has no affirmative duty to assist injured individuals, -in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.) A doctor dining in a restaurant has no duty to come forward and assist injured others if they suffer a heart attacks while dining in the same restaurant. If the doctor merely continues with his meal and does nothing to help, the ailing others would not have an action for malpractice against him, notwithstanding their harm. However, once a doctor voluntarily decides to assist others or come to their aid, he or she becomes liable for any injury that results from any negligence during that assistance.

Continue reading

by

In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

THE SEVEN POINT TEST FOR EVALUATING A “BAD FAITH” CASE Here is a quick checklist for looking at the potential for bad faith and punitive damages in an insurance tort case:

1. What is the personal plight of the insured/claimant plaintiff? In short, how sad is the story? Will the story justify “ringing the bell” in the minds of the jury?

Continue reading

by

A Bellingham, WA, neurosurgeon being sued for medical malpractice testified that modern medicine hasn’t progressed enough to prevent the brain damage his patient suffered at St. Joseph Hospital in October 2004. Dr. David Goldman took the witness stand Thursday, Oct. 1, and told a Whatcom County Superior Court jury he did everything possible to prevent the damage Carol Martin suffered Oct. 7, 2004, following neck surgery. Goldman performed that surgery on Martin, but a blood clot formed in her neck afterward, a rare but known complication. That restricted her breathing, caused swelling and eventually led to severe, permanent brain damage.

“This was a very bad outcome, and we all felt terrible about this tragedy,” Goldman testified. “There is nothing I think I could do. This is the limit of what modern medicine can do. That’s very hard to accept and live with, but that’s my job.” Otorowski and Golden called orthopedic surgeon expert witness Dr. Mark Palumbo to the stand last week to criticize Goldman’s care of Martin and say it was below the standard of care.

Martin, her husband, Stanley, and her children sued Goldman, anesthesiologist John Schroeter and the hospital in 2007. The trial finished its third week Thursday and continues Monday. The Martins’ attorneys, Christopher Otorowski and Thomas Golden, have estimated damages to be $3.7 million to $5.4 million.

Continue reading

by

In Air Rage, aviation expert witness Capt. Bob Norris writes:

Air rage. It’s a catchy name to encompass a wide variety of behaviors from passengers that pose a serious threat to safety of flight. It is becoming an unfortunate reality that passenger assaults on airline employees have increased significantly over the last several years. Cathy phrase or not, air rage is becoming an unfortunate reality for flight crewmembers to deal with. Thankfully, the vast majority are relatively simple acts of defiance, but sometimes the interference escalates to truly obnoxious behavior or even brutal violence it can have a significant safety of flight issue. With the majority of aircraft being flown by two-pilot cockpit crews, having one of the pilots going into the cabin to assist in resolving a dispute or an altercation can have a significant impact, if the pilot is subsequently incapacitated. With the 9/11 incidents, pilots are no longer allowed to leave the cockpit to assist in an altercation.

Fear mongering reports in the media and popular films frequently leave the impression that the main safety threats to commercial air carrier operations involve bombs, terrorist hijackings, and hazardous cargo. However, the reality belies some of these notions. Pilot and flight attendant reports indicate that passengers themselves are an unexpected source of many inflight safety problems, ranging from the merely annoying, to those that pose serious interference with crew duties and a potential risk to aircraft structural integrity.

Continue reading

by

In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:

Though generally straightforward, the expert disclosure provisions of Rule 26 do contain “gray” areas with respect to which counsel should be alert. For instance, parties must disclose the identity of all witnesses they might use at trial to present evidence under Rules 702, 703 or 705 of the Federal Rules of Evidence. Fed. R. Civ. P. 26(a)(2)(A). If such a witness either is retained or specially employed to provide expert testimony, or if the witness’s job duties as a party’s employee regularly involve giving expert testimony, the disclosing party also must provide a written report prepared and signed by the expert containing certain information specified in Rule 26(a)(2)(B). Whether and to what extent the report requirement applies to a non-retained witness who also happens to qualify as an expert on some topic, a so-called “hybrid” witness, is not as clear.

The 1993 Advisory Committee Notes to Rule 26 do not provide much guidance. They note that the report requirement of Rule 26 “applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.” Id. advisory committee’s notes (subdivision (a)(2)). Thus, a “treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.” Id. What is not as clear, though, are the topics on which a non-retained witness who otherwise could provide expert opinion testimony (such as a treating physician), but who did not prepare a Rule 26 report, may testify at trial.