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.

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.”

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