Expert Witness Blog

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.

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)

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.

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.

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.

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.