CONTENTS:
- Who me? How I became an expert witness
- System errors and closed claims
- System errors: Can the hospital be held responsible?
- Oversight of expert witnesses
- Slimed? Checking the credentials of expert witnesses
- Is “hot-tubbing” an answer?
- Frivolous lawsuits?
Who Me? How I Became an Expert Witness
The author of this bulletin retraces his journey as an expert medical witness
<< HERE >>
“System errors account for 1/3 of closed claims…” Well, maybe.
I think the key point of this Doctors Company review is less dogmatic than their headline states. About 63% of claims remain provider error, and only 1% of claims are purely system error. The remainder are both provider and system. But, yes, if the system were better, perhaps the providers would do better. Click << HERE >>
When is it the “system’s” fault?
Can failure to properly train a resident become the primary cause of malpractice? If so, under whose coverage is the settlement paid? That is the question in a Wisconsin case in which an allegedly poorly trained resident administered a “wrong route” medication. Because Wisconsin’s “excess liability fund,” which is being asked to cover the settlement in this case, covers only malpractice, that fund is suing to transfer liability to the general liability policy of the hospital that trained the resident. The question strikes this physician as “hair-splitting,” but should be of interest to attorneys. Click << HERE >>
Expert testimony: Who should regulate it?
Role of Professional Organizations in Regulating Physician Expert Witness Testimony
Kesselheim, AS and Studdert, DM, JAMA. 2007;298(24):2907-2909
According to this December 26, 2007, article in JAMA, there is a perception that poor quality expert testimony by physicians is prevalent. This “Commentary” by Kesselheim and Studdert questions if oversight of such testimony by physician professional organizations is a means to effectively regulate it. The only other alternatives are judicial supervision and state regulation.
The authors suggest that “a ‘conspiracy of silence’ undermines the ability of plaintiffs to find witnesses, and ultimately limits access to justice for patients with legitimate claims.” They also suggest that there is a perception that oversight of physician testimony is insufficient to prevent or sanction it, and that “professional organizations are well positioned to ensure that physician experts accurately present specialty knowledge and practices.” However, skepticism of such regulation is natural because these same professional organizations often carry a deep-seated conflict of interest against malpractice claims and attorneys and lobby for reform of the system.
Finally, they suggest that regulation by professional organizations may benefit the defense more than the plaintiff, because access to the organizations’ programs may be limited to members. Whatever oversight systems exist or are developed, the authors state, will ultimately serve the public interest. You can view the full article << HERE >>
“Slimed by an expert witness…”
This review by Louise B. Andrew, MD, JD, of the ACEP Medical-Legal Committee, describes ways of verifying the credentials of an expert witness in a medical malpractice case. Interesting resources cited are www.dauberttracker.com and www.idex.com. I expect that the resources and approaches she suggests would apply to experts in all fields of liability or personal injury law. I disagree, however, with her statement that “some liability insurers cut costs by hiring inexperienced med-mal attorneys.” The attorneys I have worked with in the Pacific Northwest, both plaintiff and defense, have been experienced and professional. Check this link << HERE >>
Expert testimony: On the hot seat, or in the hot tub?
Our current system of resolving allegations of malpractice against a physician requires that expert witnesses for each side present their opinions separately to the court through deposition or trial testimony. Australian courts are trying an innovation called “hot-tubbing.” In this format, experts from each side present their opinions simultaneously, with an opportunity for each expert, the attorneys, and the court to confront, refute or question the opinions of the other. Thus far this approach seems to reduce the adversarial atmosphere, speed the process of litigation, and moderate marginal or overly polarized opinions of experts. Based on my own experience, this physician believes that such an approach would result in a reasonable outcome for both plaintiff and defendant. Click << HERE >> to read this analysis of “Hot-Tubbing” by Andrew Stephenson, partner with Clayton Utz in Melbourne, Australia.
Frivolous Lawsuits? Apparently Not
There is a strong correlation between the merits of an underlying claim of medical negligence and the amount paid to settle the claim. Three interesting articles on this subject published in 2007 are summarized and linked below.
- Philip Peters published his findings on the subject in the Iowa Law Review. You can read the abstract of this article on the Social Sciences Research Network website << HERE >> and download the entire article by clicking on the download icon in the upper left corner of the page.
- Dr. David Studdert from the Harvard School of Public Health produced an excellent review of 1452 closed claims from 5 different insurers, published in NEJM. I found one of the most interesting features of this article to be that 10% of claims were closed with payment when there was no documented error, and 16% of claims were closed with no payment when there was a documented error. Click << HERE >>
- Medical Economics editor Wayne Guglielmo provides his insight into the above research of Studdert et al. in this article << HERE >>
10 sneaky lawyer questions
This list is attached to an article by Berkeley Rice in Medical Economics entitled “How to survive a deposition.” Having myself been deposed by both plaintiff and defense attorneys, I find this amusing at best. These so-called “trick questions” are most often met with a swift “Objection” by skilled opposing counsel. Both defense and plaintiff attorneys should enjoy this one, clearly slanted for the physician reader. Click << HERE >> to see if any of these questions sound familiar.