October 31, 2009

Medical Expert Witness On Medical Malpractice Part 7

In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on unauthorized treatment or lack of informed consent:

Virtually all states have recognized, either by express STATUTE or COMMON LAW, the right to receive information about one's medical condition, the treatment choices, risks associated with the treatments, and prognosis. The information must be in plain language terms that can readily be understood and in sufficient amounts such that a patient is able to make an "informed" decision about his or her health care. If the patient has received this information, any consent to treatment that is given will be presumed to be an "informed consent." A doctor who fails to obtain INFORMED CONSENT for non-emergency treatment may be charged with a civil and/or criminal offense such as a "battery" or an unauthorized touching of the plaintiff's person.

In order to prevail on a charge that a doctor performed a treatment or procedure without "informed consent," the patient must usually show that, had the patient known of the risk or outcome allegedly not disclosed, the patient would not have opted for the treatment or procedure and thus avoided the risk. In other words, the patient must show a harmful consequence to the unauthorized treatment.

October 30, 2009

Medical Insurance Expert Witness On Handoff Communications Part 2

Literature reports several tools that have been developed in hospitals to improve handoff
communication. One such tool used when patients are being transported to radiology or other
departments within the hospital is called a “round trip ticket”, a one page, patient-information
sheet that provides basic patient information. Simple questions are answered by checking off
boxes....
The DATAS tool was described for handoff communication between nurses such as shift
changes.
D - Demographic and diet
A – Assessments and allergies (to include new medications)
T – Newly ordered tests and tests results
A – Alerts such as isolation or Do Not Resuscitate
S – Status of patient within the care plan and discharge process
The SBAR was first described in the literature as the handoff communication tool used in
the military setting for communications between nurses and physicians. It has been adopted by
many hospitals and contains these key elements.
• patient Situation
• Background information (diagnosis, labs, medications, other pertinent clinical information
• Nurse Assessment of the current situation
• Request related to the problem being reported by nursing.
There are many other tools which have been developed by hospitals. Regardless of the
tool used it is clear that improving the process and qualify of information being handed off will
reduce errors and improve patient safety. The legal nurse consultant would be prudent to look
for evidence of effective handoff communication when review patient records.

October 29, 2009

The Life Of A Forensic Science Expert Witness

Adrienne Carlson of ForensicScienceSchools.org writes on The Life Of A Forensic Science Expert:

When your designation is tagged with the word “expert,” you can bet your last dollar that people expect you to be pretty smart and never make a mistake. And when you’re a forensic scientist, errors are the noose that could snuff out your career – you’re expected to be accurate and precise so that crimes can be solved and criminals put away for good. The life of a forensic science expert is one that has come through the college route – undergraduate, graduate, and even doctoral studies are a must when you expect to reach expert level. Besides this, you also have to gain a ton of experience by working with seniors in the field and assisting their research work.

As a forensic scientist, you are going to be responsible for analyzing evidence collected at crime scenes and providing expert testimony related to the evidence during trials. While some forensic scientists do go out in the field to collect evidence, this is a job that is usually done by forensic technicians or crime scene investigative technicians. Forensic scientists work closely with police and other law enforcement and investigative agencies in order to determine how and why a criminal act was perpetrated and to find the guilty person.

When testifying in court, as a forensic science expert, you must know your facts and be absolutely confident about them; otherwise you risk falling to pieces under the grueling cross examination of ruthless defense attorneys, which means that the whole case of the prosecution bites the dust. A good forensic science expert is able to read much more into the workings of a crime than just what the evidence seems to show. For example, besides analyzing the blood found at the scene of a crime, an expert will be able to tell you the position of the criminal and the victim at the time the crime took place by the blood spatter and the stains left on surrounding areas and objects.

Forensic science experts are sometimes under pressure from law enforcement agencies and the DA’s office to hold back certain facts that may prevent criminals from being convicted. As far as they are concerned, the case is open and shut and revealing unnecessary facts could only cloud the jurors’ minds. But an ethical forensic science expert knows that it is their job to provide all the evidence that is available and then let the jurors and the judge make their decision.

This guest article was written by Adrienne Carlson, who regularly writes on the topic of forensic scientist schools. Adrienne welcomes your comments and questions at: adrienne.carlson83@yahoo.com.

October 28, 2009

Expert Witness Disclosure

David V. Dilenschneider, Esq., Director, Client Relations (Litigation) LexisNexis on expert witness disclosure:

As I travel the country conducting presentations on how to research experts, one of the topics I address is the need to double-check an expert's FRCP 26(a)(2)(B) disclosure. If you are not familiar with that rule, it requires (in 26(a)(2)(B)(v)) that an expert disclose to opposing counsel, "a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition." The reason why such double-checking is necessary is because some experts do not make full disclosures, hoping to hide damaging prior casework from the opposition.

For those who might doubt that experts sometime deliberately omit from their lists damaging prior casework, check out the recent case of Siegel v. Warner Bros. Entm't, Inc., 2009 U.S. Dist. LEXIS 66115 (C.D. Cal. July 8, 2009). In that opinion the judge found it "disturbing" that the expert in question had failed to list in his disclosure a recent case in which his testimony had been excluded. The judge rejected the expert's excuse of "inadvertent mistake" and stated "the Court can only conclude that the failure was a deliberate effort to bury negative information." Id. at *16-17.

Ten years ago an attempt to bury negative information might have worked, but today, with so many resources now available online, the likelihood of success of such a strategy has been significantly diminished. Searches on an expert's name through case opinions, Daubert Tracker Case Reports, verdicts and dockets can help a researcher determine when that
expert has been less than forthcoming about his/her prior casework.

Excerpted from Expert Witness Research Forum at Martindale Connected.

October 27, 2009

Medical Expert Witness On Medical Malpractice Part 6

In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on gross negligence:

Within the context of medical malpractice, the term "gross negligence" refers to conduct so reckless or mistaken as to render itself virtually obvious to a layman without medical training. Examples include a surgeon amputating the wrong limb or leaving a surgical instrument inside a body cavity of the patient. Some states will permit a person to establish a cause of action for medical malpractice grounded in GROSS NEGLIGENCE without the need for expert TESTIMONY. A minority of states still permit an action for "res ipsa loquitur" ("the thing speaks for itself"), meaning that such an accident or injury to the patient could not have occurred unless there was negligence by the doctor's having control over the patient.

October 26, 2009

Zoning & Land Use Expert Witness On Successfully Locating A Retail Store Part 3

In Successfully Locating A Business, zoning and land use expert witness John J. Wallace writes on a retailer's biggest challenge:

A site may work within a center -- but will it work within a community or region? Any retail business serves a particular "trade area." This is the zone in which roughly 70 to 80 percent of a store’s customers live. Its boundaries are largely determined by driving time, competition, and demographics. For example, people will drive 20 minutes or more to visit a regional mall. But they expect to travel less than 10 minutes to pick up food, hardware, dry cleaning and other convenience items. If the drive is shorter to a competitor’s store, potential customers will probably go there. As for demographics, upscale stores like to locate in upscale communities, stores that target working people like to be in blue-collar areas, and so on. It’s just that simple, isn’t it?

Unfortunately, understanding a trade area is more complicated. In most centers, the anchor tenant defines the trade area for the smaller stores. Locating near a Sears outlet, for example, gives neighboring stores access to regional shoppers with a particular demographic. Being near a Macy’s offers different possibilities. A Safeway pulls in another crowd, mostly from neighborhood residents, without much regard for demographics.

What’s important to recognize is that there is no overcoming the power of the anchor tenants in defining your trade area. In fact, the managers of the anchor tenant stores can probably give you a good idea of whether a center’s space will work for your use. Try to talk to them while you are considering a space. Talk to the other merchants as well. As long as you are not in competition with them, other store operators should be very interested in helping you make the center succeed.

October 25, 2009

Medical Insurance Expert Witness On Handoff Communications Part 1

In Handoff Communication, medical insurance expert witness Ms. Kathy G. Ferrell, BS, RN, LNCC writes:

Handoff communication is simply the relay of information from one healthcare provider to another. Every day nurses are responsible for relaying information regarding patient care to physicians, nurses, radiology, laboratory, dietary and many other health care providers.

A breakdown in this communication has been reported by The Joint Commission
(accrediting body for hospitals) as the root cause of 65% of adverse events that occur in
hospitals. In 2006 The Joint Commission mandated that hospitals improve the effectiveness of
handoff communication including a process whereas the healthcare provider had an opportunity
to ask questions and have them answered.

Literature reports several tools that have been developed in hospitals to improve handoff
communication. One such tool used when patients are being transported to radiology or other
departments within the hospital is called a “round trip ticket”, a one page, patient-information
sheet that provides basic patient information. Simple questions are answered by checking off
boxes. For example: Can the patient ambulate and transfer independently? The nurse
completes the top portion of the ticket before the patient leaves the nursing unit. Someone in
the receiving unit completes the bottom portion of the ticket to relay pertinent information back
to the patient’s nurse. This format is used to inform the patient’s nurse about any important
event or changes in the patient’s condition that occurred while he was away from the unit.
Names of all staff members involved in the patient care are included on the form for any
questions that might arise.

October 24, 2009

Expert Witness Disclosure Rules Part 4

In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Until the law on the issue settles there are some practical steps counsel should take to address hybrid witnesses:

(1) Make sure that the witness really is a “hybrid” witness. The fact that the witness happens to be a treating physician, for instance, might not be the end of the analysis. See, e.g., Kirkham v. Societe Air France, 236 F.R.D. 9, 12-13 (D.D.C. 2006) (noting that a treating physician may be “retained or specially employed” under Rule 26 and thus an expert from whom a report is required if, among other things, they base opinions on something other than their own examination of the party such as the medical records of another physician or if they are compensated or expect compensation for their time preparing to testify);

(2) Know the court’s local rules. Some courts reduce the uncertainty on the issue by addressing certain hybrid witness questions via local rules. See, e.g., N.D. Miss. and S.D. Miss. Uniform R. 26.1(A)(2)(d) (“A party shall designate treating physicians as experts pursuant to this rule, but is only required to provide the facts known and opinions held by the treating physician(s) and a summary of the grounds therefor.”);

(3) Determine whether the judge handling the matter has an individualized “chamber” rule or standing order providing guidance with respect to hybrid witnesses. E.g., Sowell v. Burlington Northern and Santa Fe Ry. Co., No. 03 C 3923, 2004 WL 2812090 at *1 (N.D. Ill. Dec. 7, 2004) (“This court maintains a Standing Order regarding the disclosure of testimony by treating physicians, which provides in relevant part: . . . Testimony by a treating physician as to causation or prognosis or future impact of the condition or injury is subject to the report requirement of Rule 26(a)(2)(B).” (emphasis in original)); and

(4) If issues concerning hybrid witnesses are evident at the beginning of the case, consider addressing them at the pre-trial conference stage of the litigation.

October 23, 2009

Aviation Expert Witness On Air Rage Part 5

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

The problem appears to be growing, based on limited data from a few airlines; it is obvious that the industry needs a central database of uniform reporting to measure scope and changes in the incidence rate.
• It is a multifaceted problem, requiring cooperative efforts from many different directions--e.g., airlines, law enforcement, prosecutors and judges, not to mention public awareness. Tough prosecution and sentencing can be an effective deterrent.
• There is no single reason for disruptive behavior. Some contributing factors include alcohol, smoking bans, crowding, and lengthy flights. Psychologically, the loss of control, problems with authority figures, and "loss of entitlement" (i.e., a VIP having to obey the rules) seem to be recurrent themes.
• Flight attendants bear the brunt of disruptive passenger events, crewmembers can suffer severe injuries from the most violent offenders.
• Airlines are developing training programs to deal with disruptive passengers, although not all carriers have responded with equal vigor to the problem. Small commuter aircraft present special problems since the cockpit may not have any separation from passenger seats; but the small cabin area also can constrain certain disruptive behavior.
• Airlines, like drinking establishments, may find themselves liable and negligent if a person to whom they have served excessive alcohol causes injury to others, even after they have left the destination airport (i.e., while driving). Airlines may want to consider limiting the amount of alcohol served.
• Convicted criminals and deportees pose a special risk; and sometimes they are put on airplanes without adequate safeguards, supervision, or even notification to the crew.
• Pilots and flight attendants need to be trained in confrontation management, which requires both psychological and, to a lesser extent, physical skills. (Crewmembers cannot and should not be expected to deal with a violent passenger the way a policeman or security officer would.)
• U.S. federal statutes and regulations, plus the Tokyo Convention of 1963, make it illegal to interfere with aircraft crewmembers in performance of their duties. These laws must be enforced to the fullest extent. The International Civil Aviation Organization (ICAO) is reviewing international laws on this topic to insure that action is taken against offenders when they arrive at their airport regardless of the aircraft country of registration.
• Representatives of the Executive Office of U.S. Attorneys and the General Counsel of the U.S. Department of Transportation need to follow up with gave commitments that their agencies would devote the resources necessary to prosecute these cases.

October 22, 2009

Medical Expert Witness On Medical Malpractice Part 5

In Medical Malpractice Overview, medical expert witness Eugene DeBlasio writes on substandard care, treatment or surgery:

The standard of care which is owed to people as a patients is that which represents that level of skill, expertise, and care possessed and practiced by physicians found in the same or similar community as the relevant one, and under similar circumstances. However, the advent of "national board" exams for new doctors and "board certifications" for doctor-specialists has resulted in a more uniform and standard practice of medicine not dependent upon geographic locality.

All licensed physicians should possess a basic level of skill and expertise in diagnosing and treating general or recurring types of illnesses and injuries. Thus, a general practitioner who has administered substandard cardio-pulmonary resuscitation (CPR) to a heart attack victim (who subsequently dies as a result of the substandard care) cannot defend that he or she was not a "cardio-pulmonary specialist." A general practitioner from virtually any other area in the United States could most likely testify as to the level of care and expertise that is to be expected under the circumstances. Conversely, a board-certified cardiopulmonary specialist could not testify that the general practitioner should have done everything that the specialist might have done with his advanced skill and training. Nor, under the locality rule, could an oncology specialist in private practice in Smalltown, U. S. A., be held to the same standard of care as an oncology specialist in a large urban university teaching hospital that has state-of-the-art equipment and facilities.

Because doctors are often reluctant to testify against their colleagues (referred to by lawyers as the "conspiracy of silence"), it may be difficult to find an unbiased expert willing to testify against a negligent doctor or label the care as substandard. This is resistance applies even when they practice on opposite sides of the country: they may know one another from the national board certifications or fellowship programs established for specialists. Moreover, truly competent doctors usually communicate with one another for professional "brainstorming" on diagnosing or treating some conditions or may collaborate in research or academic publications.

October 21, 2009

Zoning & Land Use Expert Witness On Successfully Locating A Retail Store Part 2

In Successfully Locating A Business, zoning and land use expert witness John J. Wallace writes on a retailer's biggest challenge:

As customers move through a center, whether on foot or by car, the repeated exposure to signage provides a form of advertising. A concentrated shopping area can generate a sense of activity and critical retail mass that initially attracts people, then keeps them coming back.

Consider that it is almost impossible for small stores to operate successfully from second floors, half-floors, subfloors or any other spot out of the retail line of sight, and without frontage to the flow of shoppers. Second floors only work when the anchor tenants have entrances on that level to generate shopper traffic. Otherwise, upper levels generally provide very poor retail locations. Some center owners solve the problem by turning second story retail space into offices or professional personal service establishments. Others have encouraged ground floor tenants to expand upward and include another story, while retaining a ground floor entrance.

Many shopping malls have side malls, retail clusters projecting oft the main mall. The relative strengths and weaknesses of these illustrate the principles of site selection. In side malls, the limited visibility of stores and their signage translates into reduced customers and, usually, reduced rent. Perhaps 20 percent of visitors to the central mall will venture into these out-of-the-way areas. In side malls, stores often are not visible from the main shopping area, but they are visible to each other. So, successful side malls leverage their internal visibility and isolation from the main mall to create distinct shopping destinations, often geared to smaller or specialized markets. They either include their own anchor store, or collectively function as a destination. As customers move through a center, whether on foot or by car, the repeated exposure to signage provides a form of advertising. A concentrated shopping area can generate a sense of activity and critical retail mass that initially attracts people, then keeps them coming back.

Consider that it is almost impossible for small stores to operate successfully from second floors, half-floors, subfloors or any other spot out of the retail line of sight, and without frontage to the flow of shoppers. Second floors only work when the anchor tenants have entrances on that level to generate shopper traffic. Otherwise, upper levels generally provide very poor retail locations. Some center owners solve the problem by turning second story retail space into offices or professional personal service establishments. Others have encouraged ground floor tenants to expand upward and include another story, while retaining a ground floor entrance.

Many shopping malls have side malls, retail clusters projecting oft the main mall. The relative strengths and weaknesses of these illustrate the principles of site selection. In side malls, the limited visibility of stores and their signage translates into reduced customers and, usually, reduced rent. Perhaps 20 percent of visitors to the central mall will venture into these out-of-the-way areas. In side malls, stores often are not visible from the main shopping area, but they are visible to each other. So, successful side malls leverage their internal visibility and isolation from the main mall to create distinct shopping destinations, often geared to smaller or specialized markets. They either include their own anchor store, or collectively function as a destination.

October 20, 2009

Medical Insurance Expert On Using Legal Nurse Consultants In Client Interviews

In Use of a Legal Nurse Nurse Consultant in Client Interviews, medical insurance expert witness Ms. Kathy G. Ferrell, BS, RN, LNCC writes:

Nurses learn communication and interviewing strategies as part of their basic interpersonal and assessment skills in the first semester of training. It is a basic skill that nurses use on each patient admission (or visit to the physician in his office); on each day the patient is in the hospital and even at the beginning of each nursing shift on each hospitalized patient. We are
skilled in active listening and the subsequent collection of critical data.

The rapport established between the plaintiff and the attorney and/or staff at the initial interview may have far reaching consequences in terms of the accuracy and completeness of information obtained. Plaintiffs need to believe that the attorney and staff are advocates, working
on their behalf, in order to maintain a trusting and amenable relationship. During the initial interview the legal nurse consultant can:

• Use her medical knowledge and expertise to elicit a detailed, accurate clinical health
history.
• Identify damages resulting from the alleged negligence of the potential defendant.
• Identify preexisting conditions which may influence the case.
• Identify other medical conditions the plaintiff may have, based on the medication history.
• Identify factors that may influence future health care compliance.
• Identify need for future medical care or evaluations which can be added to damage
tabulations.
• Identify health perceptions, support systems; or otherwise view the plaintiff as a total
person, rather then just signs and symptoms.
• Identify losses such as body parts, functions, independence, and any other type of
physical, emotional or intellectual loss.
• Identify treating physicians, other health care professionals, pharmacies, and insurers
• Identify previous involvement with the legal system.
• Identify the plaintiff’s reasons for wanting to file a lawsuit.
• Provide a clear understanding to the plaintiff of the future course of action, beginning with
knowledge that the information will be provided to the attorney who will make the decision
on the merits of the case.
• Educate the plaintiff that the heath care provider’s license may not be suspended or
revoked in the event of a successful outcome to the case and that loss of monetary
compensation may be the only effect suffered by the defendant health care provider.
• Educate the plaintiff about reasons for continuing therapies and the importance of
compliance with medical plan of care.

October 19, 2009

Pollution Expert Witness On Poulty Production

Poultry production in the Illinois River watershed multiplied over the past half-century, a scientist testified Thursday in Oklahoma's pollution lawsuit against the Arkansas poultry industry. Companies went from producing about 12 million birds in 1950 to about 152 million in 2002, said J. Berton Fisher, one of Oklahoma's expert witnesses.

Oklahoma is suing 11 poultry producers, including Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cargill Turkey Production LLC, George's Inc., George's Farms Inc., Peterson Farms Inc. and Simmons Foods Inc., accusing them of polluting the one million-acre watershed with bird waste. Pollution expert witness Fisher also testified about how the watershed's hills, thin soils and rocky, porous terrain allowed contaminants to seep into streams and groundwater. For decades, farmers have used chicken litter as a cheap fertilizer to grow other crops. Oklahoma argues runoff from those fields contains bacteria that threatens the health of people who fish and raft in the watershed each year.

Excerpted from www.newstin.com.

October 18, 2009

Annuitites Expert Witness Terminology

When hiring an annuities expert witness, it may be a good idea to study the appropriate terminology. The Annuities Institute offers an extensive list of annuity terms including:

Annuity
An annuity is a contract issued by a life insurance company that provides for tax deferral of investment income until withdrawn from the contract. An annuity can also be referred to as a contract or agreement by which one receives fixed payments on an investment for a lifetime or for a specified number of years.

Deferred Annuities (Tax Deferred)
Deferred annuities are annuity contracts for people who want to save on a tax-deferred basis for many years, and then convert to a payout schedule once they retire. Contrary to an immediate annuity, taxes on deferred annuities do not become payable until some years after its purchase. The single premium or regular premiums are capitalized during the deferred period, then the built up capital is converted into an annuity. Deferred annuities typically stipulate that payments be made to the Annuitant at a later date, such as when the annuitant reaches a certain age.

Equity Indexed Annuity
An annuity whose returns are based upon the performance of an equity market index, such as the S&P 500, DJIA, or NASDAQ. The principal investment is protected from losses in the equity market, while gains add to the annuity's returns.

Fixed Annuity (fixed rate annuity)
Fixed annuities are an investment vehicle offered by insurance companies that guarantee a stream of fixed payments over the life of the annuity. The insurer, not the insured, takes the investment risk. Fixed annuities are sometimes called a fixed dollar annuity.

Fixed Deferred Annuity
With fixed annuities, an insurance company offers a guaranteed interest rate plus safety of your principal and earnings. Your interest rate will be reset periodically, based on economic and other factors, but is guaranteed to never fall below a certain rate

Flexible Premium Annuity
A flexible premium annuity has a regular periodic payment that varies.

Immediate Annuity
An immediate annuity is an annuity which is purchased with a single payment and which begins to pay out right away.

October 18, 2009

Aviation Expert Witness On Air Rage Part 4

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

The significant increase in load factors experienced over the last 10 years have given rise to considerable overcrowding, which for some individuals causes aggression, and deep frustration, and a propensity toward air rage. Most airlines have cut back on amenities like meals, boarding passes, and even leg room, so people who normally never cause a problem may feel compelled to lash out in frustration. As I fly as a coach passenger in the B-757 I feel like I am in a cattle car, wedged in the middle seat between two larger than normal size individuals, unable to move. When the person in the seat in front of me slams back their seat to recline, I am jammed in the gut by my computer. Standing in line with only three blue-rooms, unable to pass in the aisle when the food carts are in use is enough to cause frustration too most passengers. As the airlines try and fill all seats, the crowding conditions will continue and only exacerbate the already unacceptable situation.

The airlines deport thousands of illegal immigrants each year. Many are a high risk because they have been indicated for criminal acts and not escorted by armed INS agents. These individuals are being sent back against their will and none to happy about it. On a flight from Los Angeles to El Salvador two-dozen criminal immigrants were on board, just out of jail. Several stole liquor from the service cart and became drunk; a 12-year-old girl was inappropriately touched by one of the men. Additionally, some of these deportees have contagious diseases that are common to their areas and can affect other passengers.

Another potential area of concern is the transport of mentally ill patients who are suppose to be escorted and kept under surveillance at all times. The escort should have adequate restraining devices and alert the flight attendant on how to handle the patient in the event of an emergency. There have been several cases where no escort was provided and the patient became very disturb and difficult to deal with.

October 17, 2009

Acoustics Expert Witnesses On Acoustic Forensic Applications

In Acoustic Signal Analysis For Forensic Applications, acoustics expert witnesses Durand Begault and Christopher Peltier write:

Acoustical analysis of audio signals is important in many legal contexts for determining the authenticity, originality, and continuity of recorded media; determining the circumstances of events in question that may have been recorded; for determining the audibility of signals; and for identification or elimination of talkers as a match to an unknown exemplar.

Recorded media are analyzed in forensic applications using both familiar techniques (waveform and spectral analyses) and more novel methods (e.g., ferro fluid development of media; specialized tape heads with nonstandard reproduction characteristics; crystal microscopy; detection and matching to power grid frequencies). Audibility analyses frequently require careful reconstructive field measurements and criteria in excess of normally accepted standards. Voice identification-elimination protocols must account for examiner bias and exemplar quality and can be described using a receiver operator curve (ROC) model.

October 17, 2009

Medical Expert Witness On Medical Malpractice Part 4

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

The most common way in which doctors are negligent by failing to treat a medical condition is when they "dismiss" the presenting symptoms as temporary, minor, or otherwise not worthy of treatment. This situation may result in an exacerbation of the underlying condition or injury, causing further harm or injury. For example only, an undiagnosed splinter or chip in a broken bone may result in the lodging of a piece of bone in soft tissue or internal bleeding caused by the sharp edge of the splintered bone.

Erroneous treatment is most likely to occur as a result of a misdiagnosis. However, a doctor who has correctly diagnosed a disease or condition may nonetheless fail to properly treat it. Other times, negligence is the result of a doctor attempting a "novel" treatment that fails, when in fact a more conventional treatment would have been successful.

October 16, 2009

Medical Insurance Expert On Using Legal Nurse Consultants

In Using A LNC As A Expert Fact Witness, medical insurance expert witness Ms. Kathy G. Ferrell, BS, RN, LNCC writes:

Although treating physicians have an understanding of the care given to a patient, they seldom have the time to read a medical record from start to finish. Even if requested to do so by the attorney, the demands on a physician’s time prevent him from having the needed hours to read a medical record and provide the attorney with a detailed report of the care given to a patient. Even if the physician was able to perform this service, the cost would be prohibitive for many plaintiff or defense attorneys.

Family members are often acutely aware of the care received by the patient, but have no knowledge of its significance and are unable to explain the reasons for such care to a judge or jury. On the other hand, the legal nurse consultant (LNC) has the special knowledge, training and skill to educate the triers of fact about the care given to a patient as documented in the medical record. This can be extremely important in very complex and lengthy medical cases. The LNC serving as a fact witness does not express opinions about the quality of care or the treatment given, but educates the judge and jury on the care given and the patient’s response to this care.

In this role, the LNC evaluates, summarizes and explains the contents of the medical record. The LNC then produces a report for the hiring attorney. The LNC in this role most often gives testimony as to the facts of the case at mediation or deposition. Her testimony aids in understanding the extent of patient’s injuries, treatments, pain and suffering.

October 16, 2009

Zoning & Land Use Expert Witness On Successfully Locating A Retail Store Part 1

In Successfully Locating A Business, zoning and land use expert witness John J. Wallace writes on a retailer's biggest challenge:

California’s innovative shopping centers are home to many retailing firsts -- and today they are home to many first-time retailers. This new breed of store owner tends to be strong on operations, such as merchandising and service, and weak on business experience. Thus, they often run afoul of retail fundamentals -- particularly site selection.

Locating a retail store in today’s centers has become more subtle and complex, but it remains the single most important factor in a merchant’s success. Even for established and successful retail chains, location typically accounts for more than 90 percent of the variation in performance among outlets.

The first thing to grasp about site selection is that the basic principles haven’t changed in a long time. Despite many experiments and variations, no center has really found a better layout than the familiar dumbbell design. In this architectural design, major department stores or other destination retailers anchor either end of a shopping mall. The smaller stores line the mall itself. By the same token, there is no better urban shopping arrangement than some variation on a "Main Street." Here, shoppers looking up and down the "street" can see every store, and, as they travel its length, they pass every business.

October 15, 2009

Insurance Expert Witness On Bad Faith Cases - Part 12

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

Insurance bad faith cases offer an early opportunity for resolution for several reasons. First of all, they are expensive to prepare and try. Capturing the case early, evaluating the damages, and looking at the down the line costs should motivate both sides to review the case to see if mediation at an early stage is prudent. Second, insurance bad faith cases present a unique opportunity for an early evaluation. If there are coverage issues, they can be evaluated by reviewing the policy provisions and the applicable law. Because there is already a “paper trail” called a “claims file,” there is an excellent source of information for preparing a chronology of claims handling and learning what was done and why. Once the pertinent files are obtained, you should have considerable information about the claims handling, and the reasoning, or lack of such, behind it.

The pertinent insurance company files can be obtained and reviewed early in the case. This may include underwriting and claims files as well as industry and company manuals as a means for evaluating how the claim was handled – that is, what was done and why. The client and client representatives, such as brokers should be interviewed and files obtained for review. On the defense side, the company personnel should be interviewed to determine the basis for underwriting and claims decisions.

In some cases the parties might agree on limited early discovery with a view towards mediating once they have completed this preliminary discovery or informal exchange of information.

October 14, 2009

Dram Shop Expert Witness On Improving Public Safety Part 2

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

The business model under which the alcoholic beverage industry operates can be antithetical to the elements of responsible retailing. In many cases tips; a significant part of servers’ income, come from “good service” which often equates to heavy pours of alcohol, frequent replenishment, and a wink and a nod at increasing intoxication levels. Beverage retailers often utilize questionable promotions, two for one or all you can drink specials, for example, to gain a competitive advantage or to maintain marketing parity with other retailers. The choices bar owners and bartenders make in over-serving their guests often eliminate the choices their guests might have in moderating their drinking behavior.

No one will argue that the impaired driver in an alcohol related crash is blameless. The decision to have the first, second or perhaps the third drink rests solely with the drinker. At a certain point, however, the drinker loses his or her ability to make rational decisions about further alcohol consumption. The drinker’s ability to engage in appropriate behavior and make rational decisions is diminished. It is a truism worthy of a scientific designation; the more alcohol one consumes, the lower one’s ability to assess their own intoxication and assess their own ability to safely operate a motor vehicle. This most certainly creates a “Catch 22” logic model in which the person the retailer often believes responsible for determining whether their faculties are impaired becomes more and more impaired with each drink the retailer serves.

October 13, 2009

Aviation Expert Witness On Air Rage Part 3

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

What are some of the reasons for the increase in passenger disturbances? Serving unlimited alcohol on flights, particularly in first and business class is encouraged by many airlines. With the decrease in cabin pressure at normal cruising altitudes, boarding the flight on an empty stomach can cause inebriation much more quickly. Additionally with airlines prohibiting smoking on their flights, smokers tend to substitute alcohol for cigarettes. Arriving early for a flight and the long delays experienced at most airports, therefore boarding the aircraft already inebriated. It is often difficult for the passenger agent with the brief contact they have with the passenger’s prior and during boarding to detect that a passenger has had too much to drink.

Paying several hundred or even thousands of dollars for an airline ticket seems to give some people the sense they can do whatever they please on an airplane. Many of the passengers are successful entrepreneurs, business leaders, or even professional athletes or entertainers who are use to being in control of their personal and professional lives and resent giving up control to airline employees. They may resent obeying safety rules, fastening seat belts, returning to their seats during expected turbulence, and turning off devices like cell phones or laptop computers.

October 12, 2009

Expert Witness Disclosure Rules Part 3

In Be Alert for the “Hybrid” Witness Editor-in-Chief of Daubert Online Patrick J. Kenny writes:
Still other courts hold that no report is required from a hybrid witness, regardless of the nature of the opinion testimony they will provide, if they were not “retained or specially employed” to provide expert testimony. E.g., Denson v. Northeast Ill. Regional Commuter Railroad Corp., No. 00 C 2984, 2003 WL 1732984 at *1 (N. D. Ill. Mar. 31, 2003) (“There is no indication that any of the three treating physicians from whom plaintiff may elicit expert opinions was retained or specially employed for that purpose. Therefore, the report requirement does not apply for their testimony.”).

Though hybrid witness issues most often arise with respect to testimony from treating physicians, they also plainly can arise in other contexts as well. See, e.g., St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 246 F.R.D. 56, 59 (D.D.C. 2007) (allowing a hybrid witness to testify as to “information gained in his role as Executive General Adjuster with respect to the incident in question” but not to “offer his independent opinions regarding causation, or damages assessments made either after litigation commenced or independent of his assessment of damages as a function of his job as an insurance adjuster”).

October 11, 2009

Medical Expert Witness On Medical Malpractice Part 3

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.

Most doctors are trained to think and act by establishing a "differential diagnosis." Doing so calls for a doctor to list, in descending order of probability, his or her impressions or "differing" diagnoses of possible causes for a patient's presenting symptoms. The key question in assessing a misdiagnosis for malpractice is to ask what diagnoses a reasonably prudent doctor, under similar circumstances, would have considered as potential causes for the patient's symptoms. If a doctor failed to consider the patient's true diagnosis on his/her differential diagnosis list or listed it but failed to rule it out with additional tests or criteria, then the doctor is most likely negligent.

October 10, 2009

Insurance Expert Witness On Bad Faith Cases - Part 11

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.

October 9, 2009

Dram Shop Expert Witness On Improving Public Safety Part 1

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.

October 8, 2009

Aviation Expert Witness On Air Rage Part 2

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.

Unfortunately in the past, many airlines were not too supportive of flight crewmembers encounters with disruptive passengers, however, the airlines have finally recognized that workplace assaults on employees is unacceptable and will assist in providing medical as well as legal assistance during any criminal proceedings.


October 7, 2009

Expert Witness Disclosure Rules Part 2

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)).

October 6, 2009

Medical Expert Witness On Medical Malpractice Part 2

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.

Once the requisite doctor-patient relationship is established, the doctor owes to the patient the duty to render care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances. The "circumstances" include the area of medicine in which the physician practices, the customary or accepted practices of other physicians in the area (the "locality rule"), the level of equipment and facilities available at the time and in that locality, and the exigent circumstances, if any, surrounding the treatment or medical service rendered. The requisite degree of skill and expertise under the circumstances is established by "expert testimony" from other practicing physicians who share the same or similar skill, training, certification, and experience as the allegedly negligent physician.

October 5, 2009

Insurance Expert Witness On Bad Faith Cases - Part 10

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?
2. What is the amount of the contract claim? Is the amount sufficient to justify a substantial compensatory award? Is the fact that plaintiff has been deprived of these sums sufficient justification for a significant emotional distress award?
3. What is the amount of compensatory damages that is likely to be awarded for economic loss, emotional distress and attorneys’ fees? The greater the amount of compensatory damages, the larger the potential for punitive damages. This is particularly true in a “cap” state such as Indiana in which three times the compensatory award may pose a much greater exposure to punitive damages than the monetary cap of only $50,000.
4. How long has the plaintiff been a policyholder (in a suit by an insured)? A jury will expect the insurer to “give slack” to an insured who has been a policyholder for a substantial period of time. Reluctance by the insurer to give the benefit of the doubt to long-standing insureds who have continued to fuel the company coffers with premium payments may create a jury climate for a punitive claim.
5. What is the length of time from claim to compensation? The longer the period from the time of the initial injury to trial (or payment of what was rightly owed), the higher the punitive potential. A lengthy period of denial only bolsters the perception that insurance company claims personnel are taught to hold on to the insurer’s money for as long as possible in order to maximize profits.
6. What is the likely credibility of the company witnesses? The story of the claims handling is influenced by the believability of the insurance company’s witnesses, who may be subject to impeachment and/or may be shown to have taken an adversarial posture against the insured, which is inconsistent with the principles of good faith claims handling.
7. What is the overall perception of the insurance company? That is, what picture will the jury have of the insurer? Promises of “Good Hands,” “Good Neighbor” and “Piece of the Rock” give the jury the impression that the insurer can be trusted, but these advertising slogans may be perceived as just marketing tools for attracting customers, with no intention of meeting these standards of customer concern, care or treatment. Also, if the insurer is perceived as being very wealthy (even if the jury will not hear evidence of financial wealth until a later aspect of the trial), this perception can affect the jury’s determination.

October 4, 2009

Orthopedic Surgeon Expert Witness On MedMal Case

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.

Excerpted from the newstribune.com

October 3, 2009

Aviation Expert Witness & Air Rage Part 1

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.

October 2, 2009

Expert Witness Disclosure Rules

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.

October 1, 2009

Medical Expert Witness On Medical Malpractice Part 1

In Medical Malpractice Overview, medical expert witness Eugene DeBlasio explains:

Medical malpractice is negligence committed by medical professionals. For negligence to be "actionable" (having all the components necessary to constitute a viable cause of action), there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach. The simplest way to apply the concept of proximate cause to medical malpractice is to ask whether, "but for" the alleged negligence, the harm or injury would have occurred.

When determining whether the conduct of a member of the general public is negligent, the conduct is judged against a standard of how a "reasonably prudent person" might act in the same or similar circumstance. Conversely, when determining whether a medical professional has been negligent, his or her practice or conduct is judged at a level of competency and professionalism consistent with the specialized training, experience, and care of a "reasonably prudent" physician in the same or similar circumstances. This constitutes the "standard of care" or professional "duty" that a physician owes to his or her patient. If the physician breaches the standard of care and his patient suffers accordingly, there is actionable medical malpractice.

The term "patient" generally refers to a person who is receiving medical treatment and/or who is under medical care. In many states, other licensed medical professionals such as chiropractors, nurses, therapists, and psychologists, may also be sued for malpractice, i.e., negligently breaching their respective professional duties owed to the patient. The following sections refer generally to medical malpractice as it relates to medical doctors/physicians.