Sunday, September 13, 2009

Have Plaintiff Experts Produce Their Records of Patients Like the Plaintiff for Review

This proposal was a resolution to be presented at the Pennsylvania Medical Society Business Meeting in October, at Hershey, PA. It was endorsed by the Board of Trustees of the Montgomery County Medical Society.

It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.


Pennsylvania Rule of Evidence 702 states, "If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." (1). The sociology of expertise now agrees, genuine expertise comes less from credentials, more from a track record and experience (2).

So, in accordance with Pennsylvania Rule of Evidence 702 (1), the treatment records of the plaintiff expert treating patients similar to the plaintiff for similar problems should be obtained in discovery. This discovery motion has justification in that expertise comes from experience and a track record, and less from credentials (2).

All identifiers of these plaintiff expert patients should be blacked out. Payment for the expense of such discovery should the same as charged to the plaintiff. These plaintiff expert treatment records should be reviewed for compliance with the standard of care the plaintiff expert claimed were not met by the defendant.

If the plaintiff expert does not have sufficient records to produce or refuses to produce such records, a motion to disqualify the expert should be filed with the court. He does not have enough experience to be an expert on the narrow subject of the claim. If there are not enough records because the condition is so rare, the rarity serves as a good defense. If the plaintiff expert's own practice records show any deviation from the proposed standard of care, consider filing pretrial motion to impeach the expert for a prior inconsistent statement. If the plaintiff expert is disqualified or impeached, the expert opinion is false testimony. The case should be dismissed in accordance with the Iqbal doctrine, and its limits (3), and all legal costs should be assessed to the personal assets of the plaintiff expert.

A demand for the treatment records of the defense expert should be opposed on the following grounds, 1) the burden of proof is on the plaintiff, and the defense is not even required to produce any testimony; 2) the defense expert may not be making claims as to what a standard of care is, but may be offering alternative causation or unforeseen intervening causes of the injury; 3) even if the defense experts records all comply with the plaintiff experts proposed standard of care, they may reflect defensive medicine or academic teaching duties (extra thorough examinations to teach student doctors), and not acceptance of a standard of care proposed by the plaintiff expert.

References
1. http://www.pacode. com/secure/ data/225/ chapter7/ s702.html
2. Collins, H., Evans, R. Rethinking Expertise, U of Chicago, Chicago.
P. 67.
3. Find at: http://www.law.cornell.edu/supct/html/07-1015.ZS.html; limits discussed at: http://blogs.wsj.com/law/2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/

Monday, September 7, 2009

If Opposing Experts Testify in Good Faith, the Case Should End for Lack of Jurisdiction and Justiciability

The problem. Over 80% of medical malpractice claims are weak and fail at that rate at every stage of the claim. It is this majority of weak cases that need to get deterred. If they are, the defense bar loses jobs, and the insurance companies lose profits. They will therefore refuse to aggressively get these dismissed early. Some method is needed to deter the weak testimony of paid off plaintiff experts. There should be no quarter given to them.

This scenario is a situation where the interest of the defendant and those of the plaintiff attorney are in accord. Both will benefit from not holding trial and avoiding its time and expense. It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.

There are 5 elements that must be proven in a medical malpractice suit, 1) an injury; 2) it was caused by the treatment; 3) nothing broke the chain of causation of the injury, such as patient non-compliance, bad luck events, other people's behaviors, etc.; 4) there is a standard of care; and 5) the treatment that caused the injury deviated from it. Experts are needed to establish the standard of care, and to establish the causation. It is reassuring that when a phenomenon exists and can be measured, the agreement of experts is excellent. Expert testimony has good inter-rater reliability. The court should feel reassured that any disagreement does not come from any inherent nebulousness of the subject matter.

The jury is supposed to find the facts. It is the "trier of facts." It is their job to find that the doctor did something or did not do something, when he did it. Facts.

It should be defense lawyer standard of due care to get the earliest dismissal of a complaint. Good faith (sincere) testimony of opposing experts means a scientific controversy exists, and the rhetoric in a court cannot resolve a scientific controversy (1). Only additional, scientifically valid data may resolve a scientific controversy.

A court should dismiss the case lacking justiciability (the limits upon legal issues over which a court can exercise its judicial authority) as early as possible to avoid wasting its time. Opposite expert testimonies violate both the Frye doctrine (2) used in Pennsylvania courts and the Daubert doctrine (3) used in federal court.

Claims of a deviation from doctor standards of due care within the knowledge of the jury, or having support from only a plaintiff expert, are within the ability of the court to judge, and where only the facts of treatment are in dispute, should proceed.

If an expert is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.

The defendant should discuss with the insurance company defense lawyer making the following preliminary motion, as early as possible after the completion of discovery, to dismiss the claim because opposing experts are testifying in good faith, and the court lacks technical ability or constitutional authority to resolve a scientific controversy.

The court should dismiss the lawsuit if 1) the experts disagree over the standard of due care; 2) agree about the standard, but whether the doctor’s treatment met it; 3) agree about the standard, that the doctor failed to meet it, but disagree over whether the deviation from standards caused the injury or merely preceded it. The jury may judge a claim where opposing experts agree about the standard of care, that if the doctor’s treatment deviated from it, it would have caused the injury, but disagree about the material facts of the treatment (if it happened, when it happened). The jury has the ability to determine what happened, then using the agreement of experts over material opinions about the standard, the hypothetical causation, but disagreement about the facts of treatment.

The court may also accept a claim the standard of care and of causation is within the knowledge of the jury, such as wrong site surgery, or that has no defense expert.

If one of the opposing experts is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.


Footnotes:
1. Sancho v. U.S. Department of Energy. F.Supp.2d, 2008 WL 4370009 (D. Hawaii) (Lack of subject matter jurisdiction in a claim that turning on a particle accelerator could create a black hole swallowing the earth). Lack of subject matter jurisdiction may be raised at any point of case. May be raised by the court itself. The Court has ability to answer legal questions not scientific ones. Its decisions are at the point of a gun, and may distort clinical practice if an unscientific opinion prevails. The jury has no ability to judge the science, especially after all with any knowledge have been excluded in voir dire. The jury will favor the more personally likable expert, or apply one of may cognitive biases. These results of lack of subject matter jurisdiction violate the procedural due process right of the civil defendant to a fair hearing.

2. Frye Decision: “...the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Opposite testimony on the standard of care implies lack of “general acceptance.” The experts are there to help the jury apply the standard of care to the facts. If they disagree, they are not helping but confusing the jury.

3. Daubert Decision: “Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.”

Thursday, September 3, 2009

Legal Hoaxing and Its Remedy

Problem.

Legal hoaxing is a term that had to be invented to describe the conduct of the PA DOT. It refers to repeated lying by government to the public about the wording of a law.

1) If a patient is not reported within 10 days of a list of diagnoses, the doctor becomes the legal proximate cause of any accident of his patient. This threat repeatedly made in a widely distributed pamphlet cannot be found in the statute. What can be found are footnotes about cases where doctors were sued for injuries caused by their patients, and were found not liable (see Notes of Decisions; Doctor Liability).

2) The doctor has notice of the law, and the law is not in violation of due process (void for vagueness) because the doctor reports the patient after clinical assessment of ability to drive. Clinical assessment is notice, and rebuts the void for vagueness problem. The law states reporting is mandatory after the diagnosis of a listed condition.

3) The state continually threatens prison sentences. It has never prosecuted a doctor. It preserves all laws with a law prohibiting desuetude. If this law itself has never been enforced, does the law against desuetude apply to itself?

Remedy.

A Rule 11 sanction against individual lawyers, albeit agents of the state, does not seem enough.

The best remedy is a per se summary judgment. If a state has to lie about its law, it constructively admits to its invalidity, ineffectiveness, and inability to pass constitutional muster. To deter legal hoaxing.