Posts Tagged ‘expert witness’
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To show that a doctor committed fraud or deceit, whether in giving you advice, altering clinical records, or helping you with a case, you have to show the following:
1. The doctor knew, or should reasonably have known, the information was false or the records were altered.
2. The doctor intended that you rely on it, and you believed it was true.
3. You based your decision or action on the belief that it was true.
4. You suffered an injury or financial loss because of your reliance on the doctor’s misrepresentation. For example, you consented to surgery or delayed filing a malpractice suit until after the time limit ran out.
Destruction of evidence is a crime and so is tampering with a witness. And, you are now asking yourself why a doctor who alters clinical records, or threatens your expert witness with political reprisals if he testifies for you, cannot be fined or sent to jail. The answer is that he can. And, anybody else who tried it would probably be punished with a fine or jail sentence. But, doctors seem to get preferential treatment from the courts. Although altering clinical records and intimidation of medical expert witnesses or dental expert witnesses happens every day, it would be hard to find any instance of a doctor ever having been punished for doing them.
In a West Virginia case, the doctor called the patient’s expert witness and made threats against his life, if he testified against him. When the patient’s lawyer complained to the court, the judge had a chat with the doctor who explained that what he really meant was the expert would “get killed” by being embarrassed and humiliated on the witness stand. The judge agreed with him. End of complaint.
What about the doctor who offers to help you, then
deliberately destroys your case? You can also recover from him, and this will be dealt with later.
To show fraud in obtaining your consent, or in concealing the effects of medical malpractice or dental malpractice, you must have some proof, either statements made in the presence of a reliable witness or a promise in writing. If it is just your word against the doctor’s word, it tends to turn into a “shouting match”, which the doctor usually wins.
Fraudulent alteration of clinical records can be established by a medical expert or dental expert or by an authenticator of disputed documents (handwriting expert). In the New Jersey case mentioned earlier involving the neurosurgeons, the medical expert witness for the patient spotted the typist’s notations that the documents had been dictated a year later and must have replaced the originals, which had been destroyed. In a Long Island case, the plaintiff was able to prove the doctor had altered the medical records to cover his malpractice and deceive the court. The jury awarded punitive damages, in addition to compensatory damages.
Punitive damages are not covered by the doctor’s malpractice insurance. Therefore, if you discover your expert has conspired against you, or the records have been altered or destroyed with intent to deceive, it gives your lawyer leverage.
The Rule Is: In order to plead fraud or deceit, you must show there was a conspiracy between the doctors or the clinical records were deliberately altered with the intention of defeating your case. Just because the doctors know each other, or are friends and have discussed your case, or because records are lost or edited in preparation for trial, will not do it. You must show deliberate intent to deceive you.
l” style=”text-align: justify;”>Fraud and deceit by physicians and dentists are serious words. They mean the doctor either defrauded you or deliberately deceived you. There are usually four ways in which a doctor can be guilty of these unethical actions.
First, the doctor intentionally misleads you as to the nature
of your condition and what the treatment involves.
A North Carolina surgeon told a patient that a heart operation held no risk. The patient was not yet 40 years old, the operation was not really necessary, and he could have lived for many years without it. But, since the doctor had assured him there was not any risk, he decided to go ahead with it, just to be on the safe side. After the operation, the patient developed an air bubble to the brain and died.
Postoperatively, the patient’s family found out the operation was considered dangerous by heart surgeon, and as many as 10% of the people who have it die. Even though the doctor had performed the operation correctly and had not committed malpractice, he had willfully concealed the dangers of the operation to get the patient to agree to the surgery. The family sued, charging that the doctor had deliberately deceived the patient about the risks, and he did it for the money. The jury thought so, too.
Second, the doctor intentionally misleads you as to what went wrong with a treatment and gives you a false story to keep you from suing him, until the statute of limitations (time limit) runs out.
Third, the doctor alters or destroys his office records, or the hospital records, in order to conceal the truth from your lawyer and the jury. This is known as spoliation of evidence and is the most serious of all.
In a New York case, a woman was sent home from the hospital with pneumonia and she died. When the family’s lawyer obtained the hospital chart, all the reports of laboratory tests were normal. Since that did not square with the patient’s condition, the lawyer obtained a court order to see the original records in the hospital laboratory. It turned out that when the doctor was notified he was being sued for medical malpractice, he went to the hospital and removed the original laboratory report slips that showed his patient had a raging infection. He substituted forged reports that showed a normal white blood count when he sent her home. When that was brought out at trial, the jury not only gave the victim’s family an award for compensatory damages but added an amount for punitive damages, to punish the doctor for attempting to deceive the court.
Since reports of surgical operations and discharge summaries are very important, most hospitals require doctors to dictate the report of an operation before he leaves the surgical suite and the discharge summary within 48 hours after his patient is discharged from the hospital. The dates these reports are dictated and transcribed are indicated by a notation in the lower, left corner that read like this: D: 01/22/09, T: 01/24/09.
In a New Jersey case, a team of neurosurgeons botched a major brain operation, and the patient died. When the patient’s family filed a lawsuit for medical malpractice, and their lawyer obtained the medical records from the hospital, he discovered the report of the operation and the discharge summary had been dictated and typed a year after the patient died and two months after the lawsuit had been filed. Under hospital policy, the doctors would have been suspended and would not have been able to admit patients to the hospital, if the chart had not been completed. But, they had been admitting patients all along, since the patient died, so it was obvious they had destroyed their original reports and substituted falsified reports. The secretary was honest and noted the correct dates she typed the revisions and exposed the doctors’ scheme to deceive the court. The patient’s family won at trial.
Not all cases of alteration of medical records and spoliation of evidence are as easily detected as in this New Jersey case. Sometimes it requires an Authenticator of Disputed Documents (handwriting expert) to prove it to the satisfaction of the court. In a Virginia case, the authenticator found that the doctor had used a pen that was not even manufacturer until after the dates on his handwritten note. If you can show medical records have been altered or destroyed, it puts you in a strong position.
Fourth, a doctor offers to help you with your medical malpractice case or dental malpractice case or promises to be your expert witness. At the last minute, he fails to appear to testify or changes his opinion on the witness stand.
A Utah lawyer was suing an anesthesiologist for medical malpractice, which resulted in the death of a patient during surgery. The surgeon, who had performed the operation was critical of the anesthesiologist and offered to act as the lawyer’s medical expert witness. The lawyer did not bother to look for another expert or obtain any other opinion. The surgeon was also helpful in preparing an airtight case against the anesthesiologist, and there was never any question that the surgeon was responsible, too.
Three weeks before the case was due to go to trial, the surgeon announced that he would not be able to act as the expert witness “for personal reasons.” When the lawyer went to an independent expert, who was located in another city, he was astonished to learn that the surgeon, who had been so helpful, was the one who had committed malpractice and should have been sued. The lawyer did not have a case at all against the anesthesiologist. The surgeon had led the lawyer along until it was too late to sue him. When confronted, the surgeon admitted he never had any intention of testifying. It was too late to find a substitute expert, and the case was lost.
You were treated by many doctors over a period of time and cannot be sure which one was responsible or whether they all were. This is the most difficult type of malpractice case to win for the following reason
1. Medical malpractice lawsuits against multiple defendants require an enormous amount of paperwork and added expense.
2. Juries might believe that one or two doctors committed malpractice but are reluctant to believe that all the doctors and two or three hospitals were all negligent.
3. Jurors are turned off by what they see as harassment suits against innocent people.
4. The most important reason is that the lawyer for each defendant will make a summation speech to the jury at the end of the case, which means that the jurors will hear multiple arguments against you and only one argument – your lawyer’s – in your favor. That loads the odds heavily against you, and such cases are usually lost.
An airline attendant sued a California dentist for dental malpractice that resulted in her losing most of her teeth. However, in the course of her work, she had been treated by four other dentists in different cities, during and after the poor work done by the California dentist. Her lawyer had an impossible job of trying to sort out who was responsible for what, and he could not drop any of the defendants, because their work was overlapping. She finally dropped her case.
The Rule Is: As your attorney makes discovery and finds out what really happened and who was responsible, you drop your complaint against everybody who was not responsible and try to end up with not more than 1 or 2 opponents in court.
The Doctor Made a “Slip of the Wrist.”
Be careful of the mishap which can be defended as a “slip of the wrist” or unforeseeable accident. We all make honest mistakes, and medicine and surgery are arts and not exact sciences. If the statistical chances of a bad result from the operation you had are 2%, and your doctor testifies that he has done over 200 and yours is the first one he ever had to go wrong, the jury will probably go along with him. No one is perfect, and doctors are only expected to adhere to good and accepted medical practice.
Unless the doctor has persuaded you to go ahead with surgery or treatment on the basis of a promise of specific, good results, such as in Cosmetic Plastic Surgery, the law says that he only undertakes to treat you and does not guarantee any results. However, if there was a Pattern of Negligent Behavior – he was negligent on more than one occasion while treating you – it blocks the simple mishap defense, and your case is much stronger.
The Local, Small Town Doctor
The physician who looks and acts the part of the sincere, dedicated, well-qualified doctor, and who is well thought of in the community, can be a tough opponent, no matter what he did. The jury is going to believe his version of what happened, because the jurors like and trust him.
In a case in upstate New York, a neurosurgeon had a patient who died. The doctor was in his 80′s – too old to open somebody’s head – and made terrible errors, which caused the patient’s death. No doubt about it. Technically, it was an open-and-shut case. The widow sued and brought in well-qualified professors in Neurological Surgery and Pathology as her medical expert witnesses. The doctor’s medical expert was a pathologist with dubious credentials, who showed microscopic slides that he said were from the patient but were proven to be from another person and exposed as fraudulent. No matter! The doctor was a beloved old, local character who knew practically everybody in town. The jury was not about to find him guilty of malpractice – and it didn’t.
The Rule Is: Eminent doctors and famous hospitals can usually brush off weak or dubious lawsuits. Juries are reluctant to believe that they would do anything wrong. They are tough opponents and you must have a strong case if you hope to win. One way your lawyer can neutralize local popularity or prestige of a formidable opponent is by a legal maneuver called Change of Venue.
Over 60% of malpractice cases are decided in favor of the defendant. The majority of cases are not decided by chance but by the actions of the attorneys involved. Simple, preventable errors make the difference between winning and losing.
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>Reasons for Losing Cases
The three main reasons why plaintiffs’ attorneys lose cases:
1.) The complaint was without merit and the action should never have been commenced, because there was no departure from good and accepted practice. Medicine and Dentistry are not exact sciences, and the best-planned treatment can end disastrously. Bad results alone do not make a prima facie case. Every successful malpractice action begins with an identifiable departure from good and accepted practice.
2.) Failure to secure the assistance of a qualified medical or dental expert, who can give reliable guidance during the conduct of the case and can testify effectively. Do not commence an action until you have secured a competent medical or dental expert.
3.) Failure of the attorney to acquire a thorough grasp of the technical, medical or dental questions involved. Like the law, medicine and dentistry cannot be learned by home study or seminars. Only thorough, in-depth research and interpretation of the literature can adequately prepare an attorney to conduct a malpractice case.
If you avoid these three fundamental mistakes, you can more than double your chance of winning.
How do you avoid these errors?
1.) Either before you accept a case, or while you can still amend the pleadings, and certainly well before the statute runs on any possible defendant, obtain a reliable analysis of the case and an opinion as to its merit.
2.) Secure the assistance of the best medical or dental expert available, even if it means paying more. There is no second prize in a malpractice action.
3.) Utilize all the facilities at your disposal to familiarize yourself with the technical details of your case. You must obtain the latest and most comprehensive literature and by all means seek assistance from your expert or someone who can explain it in terms you can understand. Before you commence discovery, you must know as much about the technical questions involved as possible.
The most important of these three is the second, getting the best expert witness you can find, because a good expert can get you over the other two hurdles. A medical or dental malpractice case is no better than its expert witness.
What do you look for in a good expert? There is probably no such thing as a perfect expert, who is ideal for every case. The inexperienced physician or dentist may make costly errors, but the experienced testifier may be attacked as a hired gun. The big city professor may be resented by the jury as an outsider, but the local doctor may take a dive under political pressure.
What are the qualities that make winning experts?
1.) He or she should be certified by a recognized specialty board.
2.) The expert should have at least five years experience in clinical practice or teaching and not have been retired for more than two years.
3.) He or she should have an impeccable reputation in the medical or dental community and, preferably, a connection with a medical school.
4.) The expert should have the ability to identify legal as well as clinical issues in a case and to explain them in simple, understandable terms.
5.) He or she should have testified at least once before, so the expert is less likely to waffle or panic under attack by opposing counsel.
6.) He or she should be located far enough away form the situs of the action to be beyond reach of the local, medical or dental establishment but close enough that travel is neither too expensive nor time consuming.
7.) The expert’s fees should be reasonable and consistent with those charged by comparable professionals. Fees that are too high or too low are danger signals that may indicate a hired gun or an unreliable witness.
How do you find this ideal expert?
There are four ways. Any one of them can produce a good or bad expert, who will win or lose your case. The one that appears the least expensive and easiest may turn out to be the most expensive and risky. Here is how to avoid pitfalls that await the unwary attorney who sets out to find a credible expert.
I. The Local Amateur
1.) He or she is the most dangerous and uncertain. The so-called conspiracy of silence is really a conspiracy of intimidation. A doctor easily can be made to see that he or she is risking a career by testifying against a colleague. Local experts are notorious for their tendency to recant their testimony or bow out just before trial and throw your case into the legal equivalent of cardiac arrest.
2.) Doctors, who value their professional connections, will not testify against local colleagues. One who does probably does not have the standing or repute to be an effective witness.
3.) Unless you have an unusually large circle of friends in the medical or dental profession, it is unlikely you know a doctor with the necessary board certifications or credentials, who will also testify for you, and your expert may not be qualified to testify.
4.) The local doctor, who offers to help you, may really be helping the defendant by feeding you false information and lulling you into a sense of false security until it is too late.
5.) If he or she is a relative or close friend of anyone in your law firm, the expert may be disqualified as having an interest in the case.
II. The Medical or Dental Authority
Some authors and lecturers recommend seeking a doctor who has published works which agree with the allegations of your case. This approach is expensive and rarely successful.
1.) The old-school-tie spirit is much stronger in medicine and dentistry than in law. Most doctors have a deep-seated aversion to plaintiffs’ attorneys and will not even talk to you, much less help you sue another doctor. The more eminent the doctor, the more this holds true.
2.) Appeals to eminent doctors to testify “in the public interest” or “to help clean up the medical profession” are simply naïve and doomed to failure. Doctors know perfectly well that your interest is financial and that medical and dental disciplinary committees are the proper forum for policing their colleagues.
3.) The time and expense involved in traveling around the country, seeking interviews with eminent doctors, is usually prohibitive.
III. The Solo Expert
This is the professional witness, who advertises his or her services directly in the legal media. He or she may be a superb expert or a disaster.
1.) Opposing counsel, and malpractice insurance carriers, also read the ads in legal media, and if a doctor has ever advertised his or her services, he or she is open to collateral attack as a professional witness.
2.) The professional witness may claim fictitious credentials, conceal adverse data, or have testified as an expert outside his or her specialty, all of which destroy the expert’s credibility. You may be unpleasantly surprised at trial.
3.) He or she has no backup. If the solo expert drops out or is disqualified, your money is lost, and you are back to square one, possibly at a critical moment in your case.
4.) Solo experts tend to be very expensive, charging up to $2,500.00 or more to review a file and up to $10,000.00 or more per day for courtroom testimony.
IV. The Medical Legal Service
The basic function of a medical legal service is to provide accurate case evaluations and qualifiable medical and dental expert witnesses, who will testify for plaintiffs and defendants.
1.) A good service will utilize reputable, qualified physicians and dentists, offer ongoing back-up and ancillary services, and charge reasonable fees that are clearly spelled out.
2.) Their preliminary case evaluations should be performed by a specialist qualified in the specialty involved. Preliminary case evaluations by qualified specialists not only point your case in the right direction from the beginning but protect you against countersuit for legal malpractice.
3.) The service should be able to guarantee you experts from the different specialties your case involves and back-up experts, if your expert must withdraw from the case.
4.) A medical legal service should be able to provide you with an expert in your geographic area but far enough away to be immune to peer pressure offshore merchant account by the local medical or dental establishment.