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Archive for February, 2012

Do you always need a medical expert witness or a dental expert witness to explain a doctor’s malpractice to the jury? You do, but there is an exception. The function of a medical expert witness or

a dental expert witness is to explain technical arguments in simple terms the jury can understand. In medical malpractice and dental malpractice cases, each side hires doctors as expert witnesses, to explain its version of what happened to the jurors.

What if you cannot find a doctor, who is willing to be your expert witness and testify on your behalf? If you do not have an expert witness, the judge will probably rule that you have failed to make a Prima Facie Case, which means you have failed to show you have a valid complaint, and the judge will dismiss your case before the jury even hears your arguments.

Can you get around that obstacle, or do you just let your case go? Theoretically, if you know a lot about medicine, you could take the witness stand and explain your side of the argument, but you would have very little chance of winning. Your expertise would be

no match for the specialists testifying against you, and you would be an easy mark for a skilled, defense lawyer.

Winning a medical malpractice or dental malpractice lawsuit is like winning a boxing championship – you actually have to beat the champ. A tie will not do. In a medical malpractice or dental malpractice lawsuit, the doctor you are suing can act as his own expert, because he is an expert – and win.

There is another way you can go. If the malpractice is so obvious that the average juror can understand it without an explanation, there is a legal theory called Res Ipsa Loquitur, which means “the thing speaks for itself”, and in most states, you do not need an expert witness. In an Illinois case, a patient had a myelogram (injection of dye into the spinal canal) to diagnose the cause of back pain. During the injection, he felt a severe pain in his leg and afterward found that his leg was permanently paralyzed. Since he was not lame when he walked into the hospital, and paralysis is not a normal and usual complication of a myelogram, the court held that the average juror could understand there was malpractice, and he did not need a medical expert witness to explain what happened. In a Kansas case, a surgeon left a gauze sponge in a woman’s abdomen. The court ruled it was common knowledge that leaving a sponge in a patient was malpractice, and the woman did not need a medical expert witness.

As we discussed earlier, in the case of the defective artificial lens implant, the fact that a product is defective, and causes injuries, does not relieve the doctor of his duty to use it carefully.

A Louisiana woman continued to have a lot of

pain after a hysterectomy. The surgeon told her it was normal and would gradually go away. After a few months with no improvement, she went to another doctor, who took an x-ray and discovered part of a surgical clamp that had broken off was still in her abdomen. Of course, she sued the manufacturer of the instrument, claiming that it broke, because it was defective. She named the hospital as a defendant, because the scrub nurse, who was responsible for handling and counting the surgical instruments during the operation, failed to tell the doctor there was a piece missing from one of them. If she had told him, he could have located the missing piece and removed it, then and there. She also sued the surgeon for medical malpractice for failure to: 1.) note the broken instrument while he was operating; 2.) heed her complaints after the operation and take an x-ray, which would have revealed the metallic foreign object in her abdomen; and 3.) remove it promptly, which would have relieved her pain.

A good example of injury from improper use of a safe remedy was a New Jersey case in which a woman was getting weekly vitamin B-12 injections from her family doctor. During one injection, the needle hit the sciatic nerve, which runs down the back of the leg, and gave her permanent “foot drop.” She could not lift her foot, and her toes dragged on the ground when she walked. The doctor claimed it was the fault of the vitamin solution, which irritated the nerve (that was true), but the court said it was also due to his improper use of the medicine. Vitamin B-12 is only good for pernicious anemia, which the patient did not have. The shots were useless. It was medical malpractice for him to have exposed her needlessly to the risk of nerve injury, just to get her money for a weekly office visit and injection.

The Rule Is: When you are injured by a product, you can sue the manufacturer, wholesaler, and retailer, including the hospital, and you have to show that your injury was of a type that could be caused by the defect. You can also sue the doctor for medical malpractice if your injury was partly due to improper use.

     
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