Comments on: The Trial of a WhiteCoat – Part 5

By: red rabbit

red rabbit — Fri, 31 Jul 2009 02:35:01 +0000

I’m no lawyer (I’m a doc) but I am an English speaker, and with respect Max:

“Assuming your “70%” refrain is true (it isn’t), I don’t know what bearing that has on any particular case. It’s like a doctor believing that, because most chest pain isn’t a heart attack, chest pain never means you have a heart attack.”

… is a lousy analogy. That wasn’t the argument. The argument was, with so many invalid claims accepted and put forth by lawyers, there ought to be some recourse against the lawyers who accept and put forth said invalid claims.

It’s a bit more like, sharp chest pain radiating to the right great toe isn’t a heart attack, and any doctor who orders trops on someone with this type of chest pain ought to be unemployed.

Incidentally, I agree.

By: Happy Talk On Medical Malpractice Reform

Happy Talk On Medical Malpractice Reform — Mon, 20 Jul 2009 10:21:36 +0000

[...] great, but good luck applying that standard. Consider Whitecoat’s trial, in which the case seems to be hinging on the fact that the got the right diagnosis and performed [...]

By: June 23 roundup

June 23 roundup — Tue, 23 Jun 2009 04:08:07 +0000

[...] 5 & 6 of White Coat’s malpractice-suit saga [opposition's expert witness; emotional [...]

By: Supremacy Claus

Supremacy Claus — Sat, 20 Jun 2009 00:53:07 +0000

About 30% of claims get any payment from insurance.

Kenneth E. Thorpe, “The Medical Malpractice ‘Crisis’: Recent Trends and the Impact of State Tort Reforms” (paper presented at the Council on Health Care Economics and Policy conference,
“Medical Malpractice in Crisis: Health Care Policy Options,” Washington, D.C., March 3, 2003); and CBO calculations based on data from the Physician Insurers Association of America.

By: Supremacy Claus

Supremacy Claus — Thu, 18 Jun 2009 11:22:34 +0000

This motion has the potential to cut the medmal business by a lot. Not only will the plaintiff bar resist it to the utmost, but so will the defense bar, the insurance business, and judges. They would all lose jobs. The doctor may have to hire a private attorney from outside the medmal field, perhaps from the civil rights arena.

By: Supremacy Claus

Supremacy Claus — Thu, 18 Jun 2009 03:25:58 +0000

A change in the Rules of Evidence should allow discovery of non-testifying experts. This does not violate attorney-client privilege. If the attorney has shown the record to 12 experts who refused to support the claim, then finds a derelict, retired, non-experienced, disgraced clinician, desperate to pay his living expenses, with testimony providing over 10% of income, shouldn’t the jury know that? What a bunch of experts say is OK as a practice is the standard of care. What one derelict says is the standard is not.

By: Supremacy Claus

Supremacy Claus — Thu, 18 Jun 2009 03:19:11 +0000

If opposing experts are testifying in good faith (truthfully), a scientific controversy exists. It cannot be resolved by rhetoric in court, but only by additional scientific data. The court should dismiss the case as outside its subject matter jurisdiction. Only cases that are within the knowledge of the jury or that have an expert support only the plaintiff should go forward past the first motion to dismiss.

When opposing experts testify, the jury will vote for the one it likes, as a person. This biased decision violates the procedural due process right of the civil defendant to a fair hearing, something found by the Supreme Court.

This defense has never been used. It should be tested. If judges allow it, much of the opprobrium brought on the court for the medmal debacle would be resolved.

If one of the experts can be shown to be testifying in bad faith (lying), then all legal costs should be assessed to the assets of the expert after a mistrial is called. If the expert is lying about a fact, then perjury charges should be pressed by the judge.

An example of a case within the knowledge of the jury is a wrong site surgery, or a blood transfusion to the wrong person.

By: Supremacy Claus

Supremacy Claus — Thu, 18 Jun 2009 03:10:48 +0000

If a doctor has made a mistake that hurt a patient, settling is the moral thing to do. The doctor buys insurance to reassure the patients some compensation will follow a mistake. That is what it is for. On the other hand, there is a duty to defend clinical care to the utmost if the opposite is true.

By: Matt

Matt — Wed, 17 Jun 2009 18:51:39 +0000

Well, you wouldn’t know what the basis was, you’d just know that there had been another one. You don’t think your assumption would be that they were shopping for a “whore”?

Consulting other law firms doesn’t mean much. If you were to come into my office today with a medical malpractice case and sat down and told me the story I’d likely refer you to someone else as I don’t handle them very often. Has little to do with the merits of your case, and more to do with the economics of taking those cases. But you’d have consulted with at least one firm before you found one to take your case.

I look forward to your expert posts.

By: WhiteCoat

WhiteCoat — Wed, 17 Jun 2009 18:15:13 +0000

Depends upon the basis for the opinion.
I can assert that the world is flat, but that doesn’t make it true. I can substantiate my assertion with 14th Century statistics, but those statistics were suspect, and if those were the only statistics I used, it would make my opinion suspect.
I also know that the plaintiff consulted 3 other law firms before the Grinch took the case.
I have a couple of posts about the expert’s testimony and you may be surprised by my actions.