Expert WitnessMedicalTestimony

Should A Medical Society Discipline A Medical Expert Witness For Submitting A “Draft Report?”

Attorneys often retain expert witnesses to consult on a case, to testify at trial or deposition, or to provide a formal written opinion to the court.  Like any other professional engagement, the process usually involves several communications, back and forth, between the attorney and the expert witness, often including preliminary written or oral opinions.

Imagine if you were retained as a medical expert witness,  had written a rough draft, preliminary opinion, and submitted it, mistakes and all, for initial consideration. Then, imagine if this document had been used in court without your knowledge, and the next thing you know, you’re being disciplined based on the quality of the document. 

Something like this actually took place, and the results may have lasting results for those in the medical community. In May, a California jury determined that the American Academy of Orthopedic Surgeons (AAOS) was liable for falsely portraying an orthopedic surgeon after he had acted as an expert witness in a medical negligence case. It seems that the AAOS had suspended the medical expert for allegedly providing improper testimony in the case. Normally, the AAOS would have every legal right to discipline the doctor, but here’s the catch: According to the doctor, the “expert testimony” used in the negligence case was the preliminary report  he had submitted to the plaintiff’s attorney who retained him. It was, therefore, not meant to be used in court. Even worse, according to the doctor, the plaintiff’s attorney had removed the words “draft report” without the doctor’s knowledge. This, in itself, is questionable behavior.  For the AAOS to then suspend the Medical Expert and falsely portray him in its publication is certainly overstepping. This, at least, was the finding of the jury, though of course the AAOS is doing all it can to fight this verdict. It is worth mentioning that the jury verdict awarded damages to the doctor against the law firm as well.

 This is a unique case that could have profound implications, not just for the AAOS but for the medical industry as a whole. If a precedent has been set that expert witnesses can successfully sue medical societies, then this is certain to send shock waves throughout the medical community. Expert witnesses should be permitted to submit preliminary drafts before finalizing the report that will actually be used in court. More importantly, no one—attorney or otherwise—should have the right to alter a draft report and misrepresent it as expert testimony. Furthermore, this case, which is among the first instances of an expert witness successfully challenging a medical society’s disciplinary action in court, may compel these societies to think twice before committing what is essentially libel.

As we might expect, this story is far from over – we could say that it’s still in the “draft report” phase. Judging from what happened to one medical expert, it’s probably wise to keep that draft report in safe keeping….

Accident Investigation & ReconstructionChemicalEngineeringMaterials

Materials Engineering Expert Witnesses & Consultants

In the last century, advances in Materials Science have elevated almost every aspect of our lives. Consider some of the new and functional materials that make living so much safer and easier: chemicals, polymers, ceramics and alloys for use in medicine and medical implants, carbon fiber reinforced plastics for varied uses including to make stronger, lighter sports equipment, and metals and coatings for sturdier and safer construction. New Material Analysis and Engineering are responsible for novel technologies in many different fields encompassing civil, chemical, construction, nuclear, aeronautical, agricultural, mechanical, biomedical and electrical engineering. 

Materials Engineering Expert Witnesses and Consultants may be called upon for several purposes.  Their expertise includes Accident Reconstruction, Failure Analyses, Product Design, Product Development, Product Delivery, and Material Handling System to name a few.

Read Articles by Experts.com Materials Engineering Experts:

A Lawyer’s Guide to Hiring a Forensic Industrial Engineer
By: Gerald J. Hietpas, PR
Causey Engineering, LLC

Memos Of Invention – Attorneys and Corporate Inventors
By: Dr. Edward Funk, Ph.D.
EWF Consulting

Analysis Of An Impact Fractured, Welded Steeting Arm Spindle Assembly
By: Metallurgical Technologies, Inc.

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Experts.com Launches New Website Platform


Experts.com is proud to announce the launch of its new website platform, with a sophisticated and modern new look and functionality. The changes are specifically intended to increase usability and brand awareness for the benefit of Experts.com Members.

The new website allows Members to market their expertise across multiple platforms, e.g., Expert Witness, Expert Consultant, Expert Answers, Expert Services, Expert Forum and Expert Blog. Members can now customize their Profiles to targeted markets through photos, video testimonials, publications such as articles and books and any other pertinent pages, documents or links of interest. The new site launched August 4, 2011 with the first two platforms for Expert Witnesses and Expert Consultants.

An attorney himself, Experts.com’s President and CEO, Nabil E. Zumout, Esq., strongly believes that the Expert Witness and Expert Consultant search process must be Efficient, Effective and Economical, especially in this troubled economy. “Our Members are at the top of their respective fields. Their expertise may vary in complexity and their services are often equally diverse. The new platform allows each Member to tailor his or her Profile to the intended audience, highlighting the particular expertise or service of interest to that audience and without compromising his or her marketing message.”

On the administrative side, Mr. Zumout states that, “the new platform allows for the consolidated management and tracking of Profiles, Articles, Books, etc., that are linked to each Profile. Finally, upgrading the infrastructure to the latest .NET platform will allow us to add more features, including Member Profile Pages with Unique, SEO friendly URLs. Again, we are simply better facilitating the means of communication between our Experts and those seeking their services.”

Please visit Experts.com to view our new look and functionality! Email support@experts.com with any questions or comments.

ConsultantsExpert WitnessIntellectual PropertyLitigationPatent Infringement

PATENT INFRINGEMENT – CEASE AND DESIST!

Patent infringement litigation has been on the rise since the mid 1990s due mainly to the increase in computer-age technology.  Most patent infringement cases involve one company charging another company with selling or using its product for their own economic advantage.  Many times, the Defendant in a patent litigation case has no idea he is infringing on another’s intellectual property, but ignorance is never a defense in the law.  The Defendant will still have to cease benefiting from the patented item and pay the allotted damages to the Plaintiff.   If  the infringement is proven to be willful, damages in such a case can be increased up to three times the actual amount of damage.

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Patent law is governed by Federal Law and the rules are set out by the United States Patent and Trademark Office, 35 U.S.C. 271 Infringement of patent. – Patent Laws.  To find that a patent has indeed been infringed upon, several items must be found. In an article entitled, “Understanding Patent Infringement Legal Opinions”, David V. Radack sets out the following:

  1. A copy of the allegedly infringed patent.
  2. The file wrapper or file history of the patent which includes a copy of the patent application as filed, communication from the patent examiner in charge of the application, and communication from the applicant to the patent examiner.
  3. A copy of the prior art references cited during the prosecution of the patent application.
  4. The allegedly infringing product or device itself. Preferably, a commercially sold device is best.

Once this information is analyzed, many times with the help of Patent Infringement Expert Witnesses and Consultants, an opinion summary is provided.  It is this opinion which sets forth how the parties will proceed, how  the Defendant should respond to a cease and desist order, if changes can be made to Defendant’s product which will eliminate the violation, or to negate a charge of intentional infringement.

Considering the litigation gridlock currently in the Federal Court system, it may be worth it to seek the knowledge of  a Patent Expert or Consultant concurrent with the development of a new device or product. If not then, retaining a Consultant prior to marketing the product could save an enormous amount of time and money.

Please click the link for a list of knowledgeable Intellectual Property, Patent Infringement and Trademark Expert Witnesses and Consultants.

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PHARMACEUTICAL PRODUCT LIABILITY

With the onslaught of legal drugs on the market, pharmaceutical product liability cases have become mainstream in the court system.  It boggles the mind how many possible harmful side effects there are for one medication alone.  Just listen to any commercial for depression medicine – and you’d better listen carefully.  They have to speak quickly to get them all in.

If a pharmaceutical company lists all possible harmful effects, does that relieve them from liability?  Do a certain number of people have to die or have a stroke in order for the drug to be pulled from the market?  Conversely, did the patient do something to exacerbate the problem?  Take too much of the medicine?  Not enough?  Is the pharmacy liable for miscalculating the dosage?

This is when Pharmaceutical, Pharmacology and Toxicology Experts and Consultants come into play.  The variables are so complex and many that a case cannot be thoroughly adjudicated without the scientific and practical experience that these particular Experts hold.  They use their skills to review medical and pharmacy records, evaluate drug delivery standards of care, toxicity, adverse drug events and even FDA regulations.  These Experts and Consultants are retained to determine the period of time a drug was used and a patient’s average compliance or adherence to taking a drug, among so many other things.

The bottom line is that Pharmaceutical, Pharmacology and Toxicology Experts and Consultants are essential to resolving complex medical issues involving pharmaceuticals and drugs.  That they play a major role in helping to regulate the industry, compensate the injured and defend the innocent cannot be denied.

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VOCATIONAL REHABILITATION EXPERT WITNESSES & CONSULTANTS

There is a great need for Vocation Rehabilitation Expert Witnesses and Consultants in the legal field. For many cases in which an individual is injured to the point of disability, a Vocation Rehabilitation Expert can determine that individual’s employability and earning potential.  According to the Encyclopedia of Mental Illnesses, the definition of Vocational Rehabilitation is:

“A set of services offered to an individual with mental or physical disabilities.  These services are designed to enable participants to attain skills, resources, attitudes and expectations needed to compete in the interview process, get a job, and keep a job…”

For example, a Plaintiff whose leg was crushed by a tractor may no longer be able to do manual labor.  If his only option is a desk job and he has no education beyond high school, what are his possible options and how much can he expect to earn?  This question is best answered by the Vocational Rehabilitation Consultant.

Vocational Rehabilitation Experts have many specialized areas of expertise, such as Economics, Life Care Planning and Psychology to name a few.  A background in economics is essential in order to calculate Earning Capacity and Worklife Expectancy.  For those with catastrophic injuries who can no longer care for themselves, a vocational consultant with Life Care Planning skills is necessary to assess the situation and develop a cost-effective plan for the family.  In most cases, the trauma involved with life-changing injuries requires a Psychologist with Vocational expertise to aid with the pain and stress of living a life with disabilities.

Vocational Rehabilitation Experts and Consultants serve the greater good by not only helping to put those who have been injured back to work but by guiding them through hardships no one should have to suffer.

Please click the link for a list of highly knowledgeable Vocational Rehabilitation Experts and Consultants.

Uncategorized

MEDICAL MALPRACTICE CASES – AGAINST THE ODDS

Roughly eighty percent of the Medical Malpractice cases tried are found in favor of the Defendant.  Considering that the odds of winning such a case are so low, it is a wonder that so many medical malpractice attorneys are denigrated by the term “ambulance chaser.”   As these cases are so difficult to win, it is not without great caution that attorneys take them to trial.  Not many are willing to play those odds unless they truly believe their client was substantially and directly harmed by his or her doctor.

According to Dr. Thomas Berger, a Cardio-Thoracic Surgeon who offers his expertise to attorneys, there are only two questions that are necessary to determine the outcome of a case:

  1. Did the doctor deviate from the standard of care (SOC)? While the definition of SOC varies from state to state, it is generally held to be the minimally acceptable quality of care that would be provided in a similar situation by a doctor with similar credentials.
  2. Was that deviation from the standard of care a proximate cause of harm to the patient and, if so, how?

Dr. Berger goes on to say that medical negligence must be shown to a “reasonable degree of medical certainty (RDMC)” that those medical errors actually harmed the patient.

Although this seems like cut and dry criteria to establish negligence, it is apparent from the win/lose record that it is not so easy to determine. While it is not so difficult to find a deviation from the standard of care, whether or not it is the direct cause of harm is the main obstacle.  Did the patient have a pre-existing condition?  Did the patient have a heart attack while going in for some other surgery?  Even if a surgeon did deviate from the standard of care and, indeed, cause some damage, if it was not the “direct” cause of the damage the case cannot be won.

It has been said that certain medical organizations prefer to keep the odds as they are – that Medical Malpractice attorneys and those that support them in litigation play David to these organizations’ Goliath.  Considering what they are up against, it would only be logical to take these attorneys out from under the ugly umbrella of “ambulance chaser.”

Read Dr. Thomas J. Berger’s Article Entitled, “Your Med-Mal Expert – An Advocate for the Truth.”

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CRISIS MANAGEMENT EXPERT WITNESSES & CONSULTANTS

In the wake of 9/11, Hurricane Katrina and other national crises like the Virginia Tech and Columbine shootings, it is imperative that we have a cache of individuals and companies at hand to respond to and manage such devastating events. Even more important is that these Experts and Consultants are available to prepare and train prior to any emergency.
Disaster Planning and Threat Analysis are not only critical to the safety of our nation’s institutions but anywhere that crowds tend to gather, such as Times Square in New York City or Union Square in San Francisco. Crisis Management Experts and Consultants use their experience and expertise to assess vulnerabilities and train for potential disasters at our schools, universities, high-risk workplace environments and hospitals. Keeping us safe is their number one priority.
Their areas of expertise can range from Disaster Planning, Hostage Negotiation, Suicide Attempts and Employment Screenings to Epidemiology, Food-Borne Vulnerabilities, Business Continuity and Terrorism. As with all those who protect the citizens of this country, Crisis Management Experts must be acknowledged for their contributions. It is with gratitude that we feature them here today.

Crisis Management Experts and Consultants

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CREDIT DAMAGE EXPERT WITNESSES – COMPENSABLE DAMAGES

It used to be that credit damage was not a compensable injury.  The victims of identity theft or fraud could not recover financially for any damage that was not a tangible good or service.  Thanks to the relatively new procedure of Credit Damage Measurement (CDM) and the expertise of many Credit Damage Experts, getting compensated for intangible losses is now possible.

In an article titled, “Credit Damage: Getting Compensated for Your Loss,” Credit Damage Expert, Georg Finder writes that, “ The impact of a bad credit rating is much more significant than most people think. Consider what poorly rated consumers face when they want to lease or buy vehicles, obtain credit cards, buy or lease or refinance their residence. In most cases, it’s an easy decision for the creditor: the credit application is simply turned down or the borrower is charged a much higher down payment – maybe thousands of dollars more with monthly payments that are typically several hundred dollars more.”

Tom Key, a civil litigator practicing in Tustin, CA is also mentioned in Finder’s article.  He explains that the CDM can help by measuring the actual out-of-pocket dollars reasonably expected from loss of creditworthiness, which includes higher down payments, higher points and costs on loans, higher interest rates, higher monthly payments, or outright denial of credit.  In addition, Keys says that the CDM method also calculates the rates, costs and other terms applicable to the resulting credit rating by lenders and projects the results over the relevant number of years for the types of loans the client is likely to seek.

For those who have suffered from identity theft or fraud that has left them with little or no credit, all is not lost.  With the help of a good Credit Damage Expert, civil litigator and the CDM procedure, recovery is not only possible, but likely.

Read Experts.com Member, Georg Finder’s, complete article.

AccountingBusiness ValuationExpert WitnessForensic AccountingFraud

FORENSIC ACCOUNTING EXPERT WITNESSES & CONSULTANTS

In the fall-out from the past few years’ financial debacle, there has been no shortage of work for Forensic Accountants.  From the Bernie Madoff scheme to Lehman Brothers and all the financial scams in between, Forensic Accountants have been called upon to apply the concept of accounting to help lawyers adjudicate and resolve the resulting legal problems.

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The Accountant’s Handbook of Fraud & Commercial Crime offers a definition which has been informally accepted by many Forensic Accounting Experts.  The definition is as follows:

“Forensic and investigative accounting is the application of financial skills and an investigative mentality to unresolved issues, conducted within the context of the rules of evidence. As a discipline, it encompasses financial expertise, fraud knowledge, and a strong knowledge and understanding of business reality and the working of the legal system. Its development has been primarily achieved through on-the-job training, as well as experience with investigating officers and legal counsel.”

Forensic Accountants apply their knowledge to many different financial transactions such as

  • Bank Fraud & Embezzlement
  • Bank Operations & Practices
  • Check Kiting
  • Electronic Transactions
  • Embezzlement
  • Money Laundering
  • Payment Processing & Fraud Detection/Prevention
  • Royalty Audits
  • Claims Analysis
  • Determination of Compliance

A Forensic Accountant’s area of expertise is not limited to financial crimes and fraud. They apply their knowledge to civil matters as well. Their services are useful for breach of contract, business valuations and marital / family law.

Considering the amount of financial litigation out there today, whether it be civil or criminal, the Forensic Accountant’s docket is most likely as full as the courts in which they testify.