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How did a Milwaukee attorney, Gerald J. Bloch, obtain a $1.2 million settlement for an HMO patient? He used two highly qualified internists to prove that the Family Health Plan and its employees were negligent in several respects, including (1) not advising the patient of the results of the echo so that he knew he would be at risk for subacute bacterial endocarditis (SBE) and would have to be prophylaxed prior to dental treatments; (2) the supervising physician failed to properly evaluate the physician's assistant's examination and note of October 17, which should have led him to the necessity of doing blood cultures which would have confirmed SBE; (3) Dr. Bilal in subsequent visits was negligent in failing to obtain a proper history from the medical chart which, when coupled with the abnormal laboratory data and patient symptoms, should have led to a presumptive diagnosis of SBE in adequate time for definitive treatment.
Here are the facts surrounding the case:
Mario Gonzalez, a 45-year-old bus driver, had been an HMO patient of Family Health Plan
since 1993. As part of his enrollment he was given a routine history and physical, which
revealed a heart murmur. He was sent for an echocardiogram which diagnosed a bicuspid
aortic valve and mild to moderate regurgitation. While this condition is not in itself
disabling, it increases the risk for bacterial endocarditis from routine dental procedures
and, therefore, patients with such a condition need to be given prophylactic antibiotics
prior to such procedures. However, no one at Family Health Plan ever discussed the results
of the echocardiogram with Mr. Gonzalez, nor informed him of the need to be prophylaxed.
During the late summer of 1994, Mr. Gonzalez underwent root canal therapy without
prophylaxis. In September 1994, he began to get flu-like symptoms and on October 17, 1994,
presented to Family Health Plan with symptoms of night sweats, fatigue, and chronic
nonproductive cough. These are classic symptoms of SBE.
He was seen on that day by a physician's assistant (PA) who, by law, is required to work
under the supervision of a physician. The physician's assistant obtained a detailed
history and reviewed the chart, observing that Mr. Gonzalez had a previous echo showing
the bicuspid valve with regurgitation. The PA's assessment, however, was "to rule out
TB".
The PA testified that he would have expected the supervising physician to read his note in
sufficient detail to note that Mr. Gonzalez was at risk for SBE. The supervising
physician, however, testified that it was his practice just to read the chief complaint
and the plan to see if they are inherently consistent. Therefore, the supervising
physician did not read that part of the PA's note which set forth the cardiac history,
which should have let any physician know that this was a patient who was at risk for SBE
and, with these presenting symptoms, SBE needed to be ruled out.
Without a diagnosis, Mr. Gonzalez continued working and went on with his normal
activities, although he began losing weight. He returned to family Health Plan in December
1994, and in January 1995, these times seeing a Dr. Bilal. Lab work taken during those two
visits revealed that the patient was becoming increasingly anemic, had a significantly
elevated sedimentation rate, and toxic granulation in his blood. These are all signs and
symptoms of probable infection. Dr. Bilal remained puzzled by Mr. Gonzalez's symptoms, but
at no time did he ever look at Mr. Gonzalez's relatively thin chart to see that there was
an echo showing a bicuspid valve. Therefore, Dr. Bilal never knew that Mr. Gonzalez was a
patient at risk for SBE.
For additional information contact Gerald J. Bloch, Esq. at 414-276-4970.
The FBI recently announced that experts from its laboratory's DNA unit will be
testifying with a "reasonable scientific certainty" that DNA evidence comes from
a particular person. This evidence will now be referred to as molecular fingerprints.
For additional information see the article entitled "Res Nova at the FBI" in the
Summer 1998 issue of Scientific Sleuthing, or fax your request to 202-994-9446.
Architect and expert Gary Smith, writing in the November 24, 1997, issue of the Pennsylvania Law Weekly, recommended the following to attorneys:
By far, the best way to find the best expert is through experienced colleagues who
engage them frequently. There are also a bunch of extensive directories (Best's; LeMark;
Bar List) at the law libraries. The most up-to-date source is the Internet. Any expert
worth his or her salt has a web page. Look them up under key words (some of mine are
expert, architecture, construction, zoning codes, premises liability, etc.). Another
source is professional societies (I've gotten many referrals through the Philadelphia
Chapter of the American Institute of Architects).
For additional information contact Mr. Gary Smith at 1324 Locust Street, Penthouse,
Philadelphia, PA 19107.
The second volume of the Forensic Accident Investigation series has been released by
Lexis Law Publishing. The volume was edited by forensic scientist Thomas C. Bohan, PhD.
The ten chapters and authors are as follows:
Chapter 1. LOW-SPEED IMPACTS. Under-standing the Dynamics of Low-Speed, Rear-End Impacts;
Methods of Investigation and of Quantifying Their Severity. Gunter P. Siegmung, P.Eng.,
and David J. King, P.Eng. (Richmond, British Columbia, Canada)
Chapter 2. AIR BAG SYSTEM ANALYSIS. Investigation of Motor Vehicle Air Bag Systems: An
Introduction to the Information Encoded within Them and to the Means of Extracting and
Analyzing That Information. William Rosenbluth, M.S.E.E. (Reston, Virginia, USA)
Chapter 3. CHILD RESTRAINT SYSTEMS. Design, Performance, Misuse, and Misunderstanding.
Marshal H. Paulo, M.Sc. (Calgary, Alberta, Canada)
Chapter 4. TRANSFER EVIDENCE IN MOTOR VEHICLE ACCIDENT INVESTIGATION. Recognizing and
Making Use of Trace and Pattern Transfer Evidence. Henry C. Lee, Ph.D. (Meriden,
Connecticut, USA)
Chapter 5. STRUCTURAL FAILURE FROM BRITTLE SPOT WELDS. Crash-Related Brittle Fractures of
Resistance Spot Welds in Steel Motor Vehicle Body Components. Stuart T. Ross, Ph.D., P.E.,
and Scott Ross, M.A. (Red Wing, Minnesota, USA)
Chapter 6. ESTABLISHING QUALITY CONTROLS FOR FORENSIC EXPERTISE. Case Hardening by the
Scientific Method: Multi-linear Events Sequencing. Ira J. Rimson, M.S., P.E., B.C.F.E.
(Albuquerque, New Mexico, USA)
Chapter 7. BEWARE FORENSIC DELUSION. Considering the Risks and Causes of Honest Mistakes
Among Responsible Investigators and Jurists and Guarding Against Them. W. Ross Cheriton,
P.Eng. (Edmonton, Alberta, Canada)
Chapter 8. THE TROUBLE WITH MEMORY. The Conflict Between the Need to Remember and the
Ability to Remember and Its Effect on the Search for Justice. Malcolm Stewart-Morris, M.D.
(San Francisco, California, USA)
Chapter 9. CLOSE-RANGE PHOTO-GRAMMETRY IN ACCIDENT INVESTIGATION. The Principles of
Photogrammetry and the Methods of Obtaining Accurate Measurements from Photographic
Imagery. Harry W. Townes, Ph.D., P.E. (Bozeman, Montana, USA) and James R. Williamson,
Ph.D. (Houston, Texas, USA)
Chapter 10. THE INTELLIGENT LAWYER'S GUIDE TO EVALUATING ACCIDENT RECONSTRUCTIONS AND
FORENSIC EXPERTS. Central Concepts, Funny Language, and a Standard for Clear Disclosure.
Thomas L. Bohan, Ph.D. (Peaks Island, Maine, USA)
For additional information call Harry Bee at 207-773-4532.
Every expert witness and litigation attorney should read the article which appeared in
the December 1997 issue of Forensic Science Review entitled "Forensic Science and the
Internet: Current Utilization and Future Potential". The article lists key home pages
and web sites for forensic science societies, laboratories, institutions, colleges, and
universities offering forensic science programs and general forensic science topics.
For a copy of the December 1997 issue write to Forensic Science Review, P.O. Box 55802,
Birmingham, AL 35255.
Inappropriate use of the word "standard" can create needless liability woes,
according to a new case history just issued by ASFE: Professional Firms Practicing in the
Geosciences.
The case history involves a local association of rockery contractors that developed a
guideline document it called a "standard". The document was not followed when a
contractor built a rockery for a condominium development. The rockery - essentially, a
non-load-bearing rock wall - apparently was not maintained and a few rocks came loose,
drain holes eroded, and other problems appeared. None was particularly serious according
to the geotechnical engineer/geologist who performed a conditions review.
The geotechnical engineer/geologist (who performed the conditions review) was deposed by
plaintiff's counsel. The consultant attempted to explain that the so-called standard was
not a genuine standard, but rather a guide. He said that several design/construction
approaches were possible, any one of which would meet the standard of care. He had to
note, however, that the "standard" approach was acceptable, too, and also would
have met the standard of care. He also had to confirm that a consultant's design
recommendations would have the same effect as a standard. Had the local contractor's
method been adopted by a local building code, it would have become the standard and any
alternative approach recommended by an architect or engineer then would not be considered
a standard, and would probably be considered to violate the standard and the standard of
care.
The case was settled to avoid protracted litigation. ASFE Case History No. 66 is available
at a cost of $10 per copy, and may be paid for with a credit card. Credit card orders are
accepted by telephone (301-565-2733), fax (301-589-2017), or e-mail (asfe@aol.com).
Payment by check or credit card can be made in writing to ASFE at 8811 Colesville Road,
Suite G106, Silver Spring, MD 20910.
Failing to hire an expert, or the right expert, can be costly to both attorneys and
their clients. Judi Horgan, writing in the Massachusetts Bar Association Law Journal,
discussed a $35,000 legal malpractice settlement in a negligence action. The case involved
a chair snagging on a cable causing the chair and occupant to fall over.
Ms. Horgan, a claims coordinator for the MBA Professional Liability Insurer, writes:
What should have been done: There are situations that clearly require testimony of an
expert and those that do not. There are other times when it may not be so clear. When a
lawyer is faced with a basic liability issue and not sure whether an expert is required or
worth the expense, he should discuss the case with his client. While a client initially
may believe it is not worth the cost to hire an expert, he may well change his mind when
there is an adverse outcome to the case. If the lawyer has the client sign off on the
decided course of action, he will be better off to defend himself if a malpractice case
results.
For additional information see the May 1998 issue of the MBA Journal, page 3.
The increasing number of experts using expert witness services which match experts to
attorneys has resulted in a distinct line of questioning by counsel.
Q. How did you happen to come into this case, Mr./Ms. Expert?
Q. You signed up with a service which solicits work for you for a fee?
Q. Do you know where the company advertises?
Q. Do you have copies of what they say in their advertisements to solicit work for
you?
Q. Does that concern you?
Q. Do you know what percentage of their work is for plaintiffs or defendants? ...
If you use an expert witness service, make sure it is reputable and that you can answer
questions similar to the ones above.
If you ever start to be defensive or question your hourly rate, consider the fact that
Bill Gates increased his net worth by $2.1 million an hour in the past year.
Every expert must be able to answer the question, "How much did you earn last year
as an expert witness?" Counsel will normally be permitted to ask this question
and if you are unable to provide an answer your credibility will suffer
dramatically. In the medical malpractice case of Wrobleski v. de Lara, 708 A.2d 1086
(Md.App.1998), defense counsel brought out that the expert for the plaintiff earned
$27,000 in testifying for plaintiff's counsel in 1995, and had testified in numerous
jurisdictions.
The doctor refused or was unable to answer the following questions at trial:
And, Doctor, at deposition, you wouldn't tell me how much you earned last year in calendar
year 1995 testifying as an expert. Are you prepared to tell this jury how much money you
earned reviewing cases, serving as a medical expert? Are you prepared to tell this jury
how much you made in 1995?
One more time, Dr. Lilling. Are you prepared to tell the ladies and gentlemen of the jury
how much money you earned in the calendar year 1995 reviewing cases, testifying in
depositions, testifying at trial as a medical expert? Are you prepared to give us a number
for all your income for 1995, or, indeed, for any year?
A new insurance policy designed to address the unique needs of forensic scientists and
expert witnesses has been developed by Sedgwick (NYSE SED), the global risk advisory and
insurance brokerage firm, with suggestions from the American Academy of Forensic
Scientists (AAFS).
The new policy, underwritten by Reliance National and available to AAFS members, provides
broad definitions of "claim", "claims expenses", and
"damages". For example, if destruction of evidence gives rise to a professional
services claim, the loss is covered (except for the property itself). The policy also
includes a broader definition of "wrongful act" than is found in most policies;
it includes any alleged act, error, or omission in rendering or failure to render
professional services. The insurance company pays for investigation and defense up front -
instead of reimbursing the insured after expenses. Also provided is a spousal/marital
estate extension, a well as extended coverage for the estate, heirs, executors,
administrators, and legal representatives of the insured.
For policy information and quotations, contact Keith George, Sedgwick of Pennsylvania,
Inc., Harrisburg, at 1-877-4ENSICS (1-877-436-7427). For additional information, contact
Jim Misselwitz, Sedgwick of Pennsylvania, Inc., Philadelphia, at 215-928-4621
What can counsel do after you admit that a text is authoritative? Attorney
Willaim C. Lanham of Atlanta, Georgia, explains his expert witness trial strategy:
"When the defendant doctor testified in deposition that a text he considered
authoritative in emergency medicine was Rosen's Emergency Medicine, plaintiff retained Dr.
Peter Rosen, its editor, as an expert witness." The case was settled for a
confidential amount.
For additional information contact Attorney William C. Lanham at 404-524-5626.
Expert witnesses should be prepared for being cross-examined by the judge as well as
opposing counsel. In the recent Pan Am case, Shah v. Pan American World Services, Inc.,
148 F.3d 84 (2nd Cir. 1998), the judge cross-examined an expert witness, Yeffet, a former
head of El Ad Security, as follows:
THE COURT: Do you have an opinion as to what the state of security was at Karachi Airport
on September 5, 1986?
THE WITNESS: Yes, sir.
THE COURT: What is that opinion?
THE WITNESS: That if terrorists ---
THE COURT: No, no, what is that opinion--not if, not hypothetically what could happen--as
to the state of security at that airport?
THE WITNESS: That they cannot near the aircraft stop terrorists who is [sic] coming to
attack or to hijack the aircraft.
THE COURT: That is not an opinion. That is just your statement that they couldn't prevent
what happened.
THE WITNESS: That's right.
THE COURT: I take it you have very good security on the West Bank, isn't that correct, in
Israel?
THE WITNESS: Yes, your Honor.
THE COURT: Troops all over the place?
THE WITNESS: Yes.
THE COURT: Somebody went into a mosque and shot 60 people. So what I am saying to you is,
I ask you for your opinion of the nature of security. Was it good, bad, or indifferent?
That is what I want to know. That is what they need to know.
THE WITNESS: Your Honor, very bad.
THE COURT: [Y]ou are an expert in this field, but I have flown and I am sure other people
have flown. I don't have any recollection of having seen armed guards in most of the
airplanes I have flown in that are flown by airlines. What I am asking you is this: As of
September 5, 1986, was it common practice for airlines at that time to have armed guards,
their own paid armed guards in the terminal, in the airport?
THE WITNESS: They had armed guards ---
THE COURT: But were they employed by the airlines or were they soldiers?
THE WITNESS: No, they were from the local authorities, and some of them that had air
marshals, they were on the spot until their aircraft took off.
THE COURT: But would it be fair to say that most airlines at September 5, 1986, did not
employ armed guards to patrol the airline terminals? Is that true?
THE WITNESS: I cannot say most of them employed. But I can say that the local authorities,
with the cooperation with the head of security of those airlines, they provide them armed
guards to secure their flight.
THE COURT: But normally the armed guards, the people who patrol the terminals, are
supplied by the local military authorities or local civilian authorities?
THE WITNESS: Correct.
THE COURT: At least that is what I have seen, and tell me if I am right.
THE WITNESS: You are correct.
THE COURT: What I am saying to you is--and I have asked you the question five times and I
have gotten the same answer all five times--the one thing you say Pan Am should have had
was more armed guards--at least five, as I heard your testimony.
THE WITNESS: Yes, your honor, upwards of six.
THE COURT: How long would it take a hijacker with a machine gun to dispatch five armed
guards?
THE WITNESS: What do you mean to dispatch?
THE COURT: Shoot them.
THE WITNESS: All this action is a question of seconds.
THE COURT: I know.
THE WITNESS: Now, if I have armed guard professionals, some of them with uniforms, some of
them without uniforms, and they are aware why they are in the position, once the
terrorists are coming with their car, they might kill one or two, but we still have
professional armed guards to give the answer to kill the four terrorists.
THE COURT: It depends how good they are. If they are as good as these highly trained,
specialized commando types that El Al employs, I guess you have one scenario. But if they
are ordinary soldiers, you have another?
THE WITNESS: They [the security persons at Karachi] are not even soldiers, your Honor.
THE COURT: But these people testified that they are highly trained commando types, are
they not?
THE WITNESS: When any other airlines decides [sic] already to have armed guards--
THE COURT: I think I have your opinion.
Note: The judge was upheld and found within his discretion to conduct the above
cross-examination of the expert.
The unremitting attack on expert witness testimony cintinues unabated. In the
July 1998 issue of the insurance publication, Best's Review, Attorney Alan S.
Rutkin of Uniondale, New York, writes in an article entitled "Throwing Out Junk
Science":
Daubert and Joiner suggest a new tack for many defendants. For years, plaintiffs
have been supporting tenuous claims with the testimony of experts.
Defendants have typically responded with their own expert. Even where the
plaintiff's experts have seemed questionable, courts have accepted their testimony as
suffiient to raise issues of fact and allowed these cases to proceed to trial. Now,
defendants will be able to launch significant challenges to even considering unreliable
experts. These challenges may allow many cases to be resolved in summary judgement,
without trial. "Junk science" will be moved to the junkyard.
The courts, spurred on by the Federal Judicial Center Reference Manual, is utilizing
the "Koch Postulates" to evaluate epidemiological studies.
Those standards are composed of the following seven factors:
1) strength of association;
2) temporal relationship;
3) consistency of the association in other research;
4) biological plausibility;
5) consideration of alternative explanations;
6) specificity of the association; and
7) dose-response relationship.
For additional information see Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC
EVIDENCE 161 (1994); see also Bert Black & David E. Lilienfeld, Epidemiological
Proof in Toxic Tort Litigation, 52 FORDHAM L.REV. 732, at 762-63 (1984).
The Kumho Tire Co. v. Carmichael case in which the U.S. Supreme Court will
decide which standards to apply for engineering and other technical experts has taken on
even more significance. Insurance groups have filed briefs with the Supreme Court as they
believe the decision will dramatically impact all of the anticipated year 2000 computer
litigation. The insurers want to apply the Daubert doctrine to the software engineers and
computer scientists who will be testifying on behalf of the plaintiffs. Counsel in the Kumho
case will be speaking at the upcoming National Expert Witness and Litigation Seminar June
17 and 18, 1999.
Will expert witnesses be replaced by judge-appointed masters and experts? In a recent article entitled "A New Battlefield: Masters and Experts", Professor L.J. Deftos makes a strong call for replacing the expert witness system as we know it. He states:
U.S. judges should take lessons from Europe, where scientific evidence is presented
objectively by experts appointed by the judge rather than by legal mercenaries hired by
each side. Since European experts are usually selected from lists provided by public
institutions, they are likely to present the positions of their scientific communities.
Paid by the courts on a standard scale, these witnesses are not dependent on a paying
party, as are U.S. experts. They serve as advisers to the court, much like masters in the
U.S. This process results in the selection of credible, neutral experts, not legal
chameleons.
For additional information contact Professor L.J. Deftos, professor of medicine at the
University of California, San Diego.
February 10, 1998
Dear Mr. Babitsky:
With regard to architect Gary Smith's article in the January 1998 issue: "Finding the
Right Expert: Internet Alert", I would like to say that his statement, "Any
expert worth his or her salt has a web page", is not necessarily true. There are many
good and reputable concerns on the web. Nevertheless, anyone who has browsed the web knows
- or should know - that it is and hopefully will remain entirely unregulated. Because of
this and the relatively low cost of use, it is the haven of numerous fraudulent
enterprises. When searching for an expert on the web, remember caveat emptor!
Sincerely yours,
Ross A. Martinek, Senior Petrographer, Erlin, Hime Associations, Division, Wiss, Janney,
Elstner Associates, Inc.
The American Bar Association has adopted the Civil Practice Trial Standards. Expert
witnesses and attorneys should be aware of Standard 17 "Qualifying Expert
Witnesses", which provides:
... that, except in ruling on an objection, the court should not declare a witness an
expert and that counsel should not ask the court to do so. The premise, a sound one, is
that a judicial declaration that a witness is an expert may have an unintended, and
untoward, impact on the jury. This may be particularly pronounced if only one expert
testifies on a topic.
Note: These standards are guidelines and not hard and fast rules. To view the standards in
their entirety, see www.abanet.org/litigation/
home.html.
Many attorneys make the mistake of retaining and putting on the stand as
many expert witnesses as possible on the theory that there is safety in numbers.
Frequently the quality and not the quantity of the expert witnesses determines the outcome
in a particular case.
For example, in an informed consent malpractice case, Osgood, Michigan attorney Clark
Shanahan explains how two well-qualified experts helped win a $16.6 million verdict:
Our ability to establish our case could not have been accomplished without the testimony
of our experts William J.A. Ford, MD and Carl Cohen, PhD. Dr. Ford was an Owosso physician
for 50 years experience. He nailed down the "but for", that without the unwanted
intervention of life supports, then 34-year-old Brenda Young would have died a painless
and peaceful death. Professor Cohen, a prolific author and Professor of Philosophy at the
University of Michigan Medical School, was able to support Brenda's patient advocate's
contention that she was not truly informed of the treatment consent forms that comprised
the principle defense to our medical battery claim.
The fact that we won, despite the defendant putting forward not less than seven experts on
various aspects of the medical ethical question, speaks volumes for the credibility that
the jury gave to these two gentlemen, neither of which had ever appeared as an expert in a
trial of like nature. (I should add that Dr. Ford had, in the course of his career,
testified on a number of prior court cases on different aspects of medical knowledge;
Professor Cohen, while he had appeared before Congressional Committees on medical ethics
questions, had never appeared in a litigated proceeding, either by deposition or courtroom
attendance.)
For additional information contact Clark Shanahan, Esq. at (517) 723-5203.