Expert Witness Blog

Medical expert witness and Chief Editor of web-based eMedicine Dr. Erik Schraga would like legal professionals and experts to know that eMedicine offers continually updated clinical reference information which may prove useful in cases they are working on. The following excerpt on cardiology provides information on pulmonary embolism medicolegal pitfalls.

Medicolegal Pitfalls

Pulmonary embolism (PE) is an extremely common disorder. It presents with nonspecific clinical features and requires specialized investigations for confirmation of diagnosis. Therefore, many patients die from unrecognized pulmonary embolism. The other common pitfalls are as follows:

* Disregarding patient's complaints of unexplained dyspnea as anxiety or hyperventilation

* Blaming complaints of unexplained chest pain on musculoskeletal pain

* Failing to recognize, diagnose, and treat deep vein thrombosis (DVT)

* Failing to initiate an appropriate diagnostic workup in patients with symptoms consistent with pulmonary embolism

* Failing to initiate therapeutic anticoagulant therapy with heparin in patients suspected to have pulmonary embolism, before the V/Q scan or other investigations

Emergency medicine expert witness and Chief Editor of web-based eMedicine Dr. Erik Schraga would like legal professionals and experts to know that eMedicine offers continually updated clinical reference information which may prove useful in cases they are working on. The following excerpt on cardiology provides information on aortic stenosis medicolegal pitfalls.

Medicolegal Pitfalls

* Patients with severe valvular AS should receive appropriate counseling regarding their conditions, including restriction of physical activity and the need for surgery, if appropriate. Physicians should document these points in patients' records.

* In cases where the patient refuses AV replacement surgery, the patient needs to have a full understanding of the potential implications (including sudden cardiac death) of his or her decision.

* The patient who agrees to undergo aortic valve replacement needs to understand its possible consequences, including perioperative death, the need for lifelong anticoagulation depending on the type of prosthesis, the need for bacterial endocarditis prophylaxis, and the risk of prosthesis malfunction with potential need for reoperation at a higher operative risk.

* Discussion and careful documentation of these issues not only would help patients become familiar with their condition and therapeutic options, but also would help to avoid misunderstandings and potential litigation.

Prison authorities expert witness Richard Lichten gives an inside view on the causes of jail and prison riots:

Perhaps one of the best things the staff can do to keep control is to use the single most powerful weapon available to jail or prison staff… I am talking about the jail keys. There must be good, well thought out security procedures and then making sure those procedures are followed for inmate safety and security to be enhanced. Staff must conduct plenty of searches, keep accurate records, keep on top of maintenance, and most importantly, keep doors (which are called “gates” in jail), securely locked at all times to enhance security and safety. Remember the New Mexico State Prison riot in 1980? I learned that a poorly trained prison guard failed to lock the gate that separated the two sides of the prison which allowed the rioters to spread out and take hostages and kill other inmates throughout the entire prison. I will never forget the wording of a sign above the entrance to one of the large jails I was assigned to. It states, “Good security is not convenient.”

Emergency medicine expert witness and Chief Editor of web-based eMedicine Dr. Erik Schraga would like legal professionals and experts to know that eMedicine offers continually updated clinical reference information which may prove useful in cases they are working on. The following excerpt on cardiology provides information on myocardial infarction medicolegal pitfalls.

Medicolegal Pitfalls

* Failure to diagnosis a myocardial infarction is the leading cause of litigation against emergency department clinicians and cardiologists.

* Consider atypical presentations in elderly patients, patients with diabetes, and women. Assess all patients carefully, especially if they have significant cardiac risk factors.

* Review all ECGs that are obtained in a prompt fashion because time is crucial.

* Obtain cardiology consultation whenever the diagnosis is questionable.

* Consider an echocardiogram to assess wall motion abnormalities in difficult cases with nondiagnostic ECGs, such as with an LBBB.

Medical expert witness and Chief Editor of web-based eMedicine Dr. Erik Schraga would like legal professionals and experts to know that eMedicine offers continually updated clinical reference information which may prove useful in cases they are working on. The following excerpt on cardiology provides information on sudden cardiac death medicolegal pitfalls.

Medicolegal Pitfalls
* Failure to recognize and initiate early management of patients with ischemic heart disease is a pitfall. The importance of this cannot be overestimated because approximately 80% of SCD cases can be attributed to ischemic heart disease.
* Failure to use appropriate medical therapy for ischemic heart disease (eg, beta-blockers) can be a pitfall.
* Involving a specialist in cardiovascular disease in the care of patients who have had a cardiac arrest or have symptoms of ischemic heart disease, valvular disorders, or presentations with complex arrhythmias is very important.
* Failure to educate patients about the consequences of noncompliance with medical therapy is an important pitfall to avoid.

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Prison authorities expert witness Richard Lichten gives an inside view on the causes of jail and prison riots:

The jails and prisons must have easy to follow policy and procedures in place for rioting. One of the best ways to stop the fighting is with a very swift, sure, well supervised, well equipped, overpowering response by the emergency response teams. And these teams must have on-going, realistic, verifiable training.

In situations wherein the inmates are not fighting, but rather barricading themselves against the staff in an open revolt, time is not on staff’s side. It has been my experience that negotiating with barricading inmates ought not to last more than two minutes before taking action. While the staff negotiates with the inmates, inmate leadership is emerging, weapons are being fashioned, courage is being amped up, the inmates’ terrain is being fortified, and plans are being made. All of this makes it much more dangerous when the staff finally goes in tactically.

Jail expert witness Richard Lichten gives an inside view on the causes of jail and prison riots:

One of the reasons it is important to keep the jails and prisons fully funded is inmate and staff safety. In jail and prison, it is a given that inmates will fight. It’s going to happen, and it cannot be stopped. There are a number of things however the staff can do to lessen the violence and keep injuries to a minimum.

It is essential to have proper staffing, training, and supervision. Fewer staff members mean fewer officers walking around talking with the inmates. Sometimes inmates will tell officers about impending violence. Fewer staff means fewer patrols in the cell blocks and yard. With fewer staff the tension in the block and yard will not be felt. Feeling jail and prison tension is essential to do, but you must have staff there to do it. Fewer staff means important clues to danger will be missed. For example, when a number of inmates go to sleep with the clothes and shoes on trouble is brewing. Fewer staff means fewer inmates searched and fewer cell searches for contraband. And fewer staff means less opportunity to train for riots and other emergencies such as earthquake, fire, evacuation, and escape.

Law enforcement expert witness Richard Lichten gives an inside view on the causes of jail and prison riots:

I’m often asked which is more dangerous, and which is harder time, jail or prison. In my opinion and in the opinion of hundreds of inmates I’ve spoken with, hands down, jail is more dangerous and the time is much harder to serve. The reason for this is that in jail there is a very good chance young, non-violent inmates with little jail savvy will be housed in the same area with hardened, experienced, violent inmates who have no issue taking advantage of the uninitiated and vulnerable. Persons entering jail and prison for the first time have no idea how to act. They haven’t the slightest clue about showing respect to other inmates and have no idea how to interact with the staff. Remember, in jail it’s all about showing respect.

In jail you have far less privacy than in prison. You have far fewer chances to go to school and work, and you have far less recreation time. For example, in jail you might get your allotted three hours of yard time a week, where in prison you can spend hours a day in the yard. Believe me, yard time is a big deal. I’ve had many inmates tell me that they cannot wait to get to “catch the chain” so they can relax in prison.

In All Should Use Greater Care Handling Underwriting Information, insurance expert witness Akos Swierkiewicz writes:

In some instances, there may be an appearance of misrepresentation or omission due to the failure by the insurer to clarify responses to application questions. When presented with ambiguous or conflicting information, it behooves insurers to seek clarification prior to binding coverage or issuing the policy. For example, when an applicant found an application question inapplicable to its business, he amended it in a good faith attempt to provide accurate and complete information, and the insurer issued the policy without seeking clarifications. When a claim occurred, the insurer denied it, citing the answer to the modified question as evidence of misrepresentation.

In certain circumstances only litigation can resolve allegations of misrepresentation or omission. However, the exercise of greater care in obtaining and preparing underwriting information by applicants or brokers, and clarification of ambiguous information by insurers can substantially reduce the number of cases requiring litigation and inevitable delays and costs.

Medical expert witness and Chief Editor of web-based emedicine Dr. Erik Schraga would like legal professionals and experts to know that emedicine offers continually updated clinical reference information which may prove useful in cases they are working on. The following excerpt on cardiology provides information on atrial fibrillation medicolegal pitfalls.

Medicolegal Pitfalls

* Proper anticoagulation is extremely important in both paroxysmal and persistent atrial fibrillation.
* Anticoagulation before and after cardioversion is necessary.
* Use of antiarrhythmic agents requires regular, drug-specific follow-up testing.

Special Concerns

* Warfarin is contraindicated during pregnancy.
* Give special consideration to patients who are noncompliant and patients who are at risk for falling. These patients may be better off with antiplatelet agents such as aspirin.

In All Should Use Greater Care Handling Underwriting Information, insurance customs expert witness Akos Swierkiewicz writes:

The need for greater care with handling of underwriting information is not limited to applicants and brokers. Insurers should ask all pertinent questions in the application form because, in many instances, the applicant may be aware of important underwriting information but does not disclose it simply because it was not asked.

Application questions should be limited to seeking factual information rather than eliciting the opinion or judgment of the applicant. For example, when the applicant answered “no” to a professional liability application question as to whether future claims were expected, based on the applicant’s opinion or judgment, the insurer concluded that the response was a misrepresentation or omission just because a claim did occur.

In All Should Use Greater Care Handling Underwriting Information, insurance practices expert witness Akos Swierkiewicz writes:

The following are examples of alleged misrepresentations or omissions involving litigation:

* the broker asked the applicant to sign a blank application form, completed and released it to the insurer without providing copy to the applicant;
* the applicant did not review an application prepared by the broker, which contained a misrepresentation or omission;
* the broker did not ask the applicant about past losses and provided the wrong answer in the application;
* the applicant and broker did not communicate clearly about the scope of coverage and limits sought in the application;
* an application question was ambiguous to the applicant and the answer was incorrect;
* the insurer did not seek clarification of an ambiguous response to an application question.

In All Should Use Greater Care Handling Underwriting Information, insurance expert witness Akos Swierkiewicz writes:

State insurance laws generally allow the insurer to deny claims or rescind the policy for misrepresentation or omission, including concealment fact or incorrect statement, if:

* it was material either to the acceptance of the risk or to the hazard assumed by the insurer, or
* a reasonable insurer would have acted differently had it known the true facts, e.g. would have charged higher premium, restricted coverage or declined to issue the policy.

While most misrepresentations or omissions are unintentional, the insurer’s right to deny claim payment or to rescind the policy is not limited to intentional or fraudulent misrepresentation under a number state laws, when either of the above two criteria applies.

On his website, aviation expert witness John Ogle, MD, MPH, FACEP, lists FAA medical questions regarding a pilot applicant's medical history and information on how the FAA considers any problems with respect to flight safety. Here are13-24:

Medical History
13. Mental disorders of any sort; depression, anxiety, etc. (More...)
14. Substance dependence; or failed a drug test ever; or substance abuse or use of illegal substance in the last 2 years (More...)
15. Alcohol dependence or abuse (More...)
16. Suicide attempt (More...)
17. Motion sickness requiring medication (More...)
18. Military medical discharge (More...)
19. Medical rejection by military service (More...)
20. Rejection for life or health insurance (More...)
21. Admission to hospital (More...)
22. Conviction and/or Administrative Action History (More...)
23. History of nontraffic convictions (More...)
24. Other illness, disability, or surgery (More...)

In Product Experience or Expert Experience?, patent infringement expert witness James G. Rice writes:

Because patent litigation is one of the more complex areas of litigation, the expert witness is susceptible to making a critical mistake, for example, during a deposition. From my own experience, it appears that patent litigation is the foremost area of litigation in which technical issues can be strongly interwoven with legal issues. This can lead to the situation during a deposition where what may appear on the surface to be a relatively straight forward technical question can have critical underlying legal implications. I recall being asked during a deposition if a particular element of a claim was a "method." The wording of the claim was not entirely clear on this issue and a less experienced witness might have simply answered "yes" and thus inadvertently have testified in effect that the claim was invalid. Although the attorney the expert is working with during preparation for the deposition may be excellent, it is difficult, if not almost impossible, to anticipate all of the avenues the opposing attorney may take during the course of a deposition. This makes it all the more important that the expert have strong experience in patent litigation.

In Product Experience or Expert Experience?, patents expert witness James G. Rice writes:

Quite often when I receive an inquiry from an attorney about a new case, the case deals with a product or device that involves a very specialized and narrow area of design and engineering. A typical example of such a device would be a vacuum cleaner. The attorney will state that they are looking for an expert who has specifically worked in this specific segment of industry in the design and engineering of vacuum cleaners. They often will then state that they are having a hard time locating such an expert. The problem of course is that in such a very specialized area, such individuals are not widely available and are also highly unlikely to be working in litigation support. Even further, should the attorney be fortunate enough to find such an individual, it is frequently the case that they are not be willing to participate in litigation support.

In All Should Use Greater Care Handling Underwriting Information, insurance customs expert witness Akos Swierkiewicz writes:

Misrepresentations or omissions primarily originate from negligence by the applicant or broker during the course of the obtaining underwriting information and completing the application.

One of the major functions of brokers is to obtain accurate and complete underwriting information, which requires their active involvement in the process of gathering, preparing and communicating such information to the insurers, rather than just being the conduit to pass information from applicants to insurers. Brokers should also take the initiative and explain major provisions or conditions of the policy to applicants to minimize negative surprises when a claim occurs.

In All Should Use Greater Care Handling Underwriting Information, insurance practices expert witness Akos Swierkiewicz writes:

One of the tenets of insurance law is that parties to an insurance policy are expected to deal with each other in utmost good faith. Applicants for insurance or their brokers must disclose all relevant underwriting information fully and accurately to prospective insurers. If the application contains any misrepresentation or omits information that could affect the underwriting decision of the insurer, the standard of utmost good faith is not met and the insurer may deny coverage for claims or rescind the policy.

Allegations about misrepresentation or omission usually surface in the course claim investigations by insurers. In many instances the ensuing litigation may result in denial of the claim or rescission of the policy. Even if misrepresentation or omission is not proven, litigation inevitably causes significant delays in claims adjustment and direct and indirect expenses to the parties.

Law enforcement agent expert witness Richard Lichten gives an inside view on the causes of jail and prison riots:

It is a fact that to get along in jail or prison, you must stick with your own race. If you are in an area where there is rioting, you must participate to show respect to your race. If you have an opportunity to join in the riot and do not, you run the risk of getting a beating, or being sexually assaulted later on. In one of the large jails I was assigned to, some of the gang leaders would order a beating called, “30 seconds under the stairs.” That means you would be pummeled for 30 seconds under the stairwell in the dorms. Thirty seconds is a very long time to suffer a beating. Look at your watch for 30 seconds and think about how your face can be mashed into pulp in that time. The staff may see what is happening and come to your aid, but it will take at least that long to get back up, open the door, and run to you.

Prison authorities expert witness Richard Lichten gives an inside view on the causes of jail and prison riots:

Some of the reasons inmates riot are power issues between races, revenge for an assault/killing on the streets, showing disrespect to others, stealing from each other, being ordered to riot by the prison gang leadership, and power over who controls the drugs and other contraband such as cell phones and cigarettes just to name a few. When I talk of disrespect, I’m not talking about forgetting to say please and thank you. I’m talking about failing to use the “right” toilet, walking through someone’s personal space, using the “wrong” telephone, not cleaning up your assigned space, speaking with someone of another race, not standing up for your own race and so on.