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When Simple Malpractice isn’t Simple

broken glassA woman falls on broken glass, cuts herself, and goes to the local emergency room, where the doctor on duty sends her home without finding a piece of the glass lodged in her buttocks.  Several days later, another doctor orders a CT scan–not done by the first doctor–that shows the glass.  On its face, many people would think this is clear malpractice–the first doctor should have found and removed the shard of glass.

A recent decision by the Massachusetts Appeals Court reminds patients and lawyers alike that even seemingly simple malpractice cases aren’t all that simple.  In Delaney v. Russo, the court dismissed the case because the patient didn’t have a medical expert witness to testify that the emergency room’s doctor’s failure to find the piece of glass was malpractice.  The patient had claimed that the malpractice was so obvious that a jury could recognize it without testimony from an expert.  The court disagreed, and that was the end of the plaintiff’s case.

The general rule in medical malpractice cases is that expert testimony is required to prove both the standard of care–what the average health care provider would have done under the circumstances–and causation–how the alleged negligence of the defendant caused injury.  The only exception is if the negligence is so obvious that it falls within the “common knowledge” of the jurors.  In fact, this seemingly straightforward case would require expert testimony on several points: 1) that the standard of care required the emergency room doctor to do a particular test to search for broken glass; 2) that the test, if performed, would have located the glass, and 3) that the patient was harmed by the doctor’s failure to find the glass.

Many people with potential malpractice claims that seem obvious are dismayed to learn that the legal requirements for expert testimony make it difficult or impossible to bring their claims.  Particularly if the injury is minor or temporary, the expense of hiring an expert witness can be prohibitive, and the patient is left with no practical remedy.

The result in Delaney v. Russo demonstrates the danger in attempting to proceed with a malpractice case without an expert witness.  Experienced malpractice lawyers can help determine whether a claim is valid, and whether expert testimony will be required to bring the case.

The Appeals Court opinion is available on the court’s website.


Doctor Fights Back

intimdating copPatient safety scored a major victory last week in Pennsylvania, when a federal court judge upheld a jury verdict against the American Academy of Orthopedic Surgeons (AAOS), the primary professional organization in the specialty, holding that the organization had unfairly damaged the reputation of Dr. Steven Graboff.

Dr. Graboff, a board certified orthopedic surgeon and a member of the AAOS, was one of the rare members of his specialty willing to review and testify for patients in medical malpractice cases.    The physician-defendant in a case in which Dr. Graboff was involved took offense, and filed a complaint against him with the AAOS disciplinary system.  After a couple of fairly brief hearings, the AAOS Board of Directors voted to suspend Dr. Graboff from the Academy for two years.  The AAOS published notice of the suspension in its monthly bulletin to members, and also posted the decision on its public website, where it was readily accessible through search engines such as Google.

As a result of the suspension, law firms that had previously used Dr. Graboff’s services as an expert witness told him that they could no longer hire him as a reviewer because of the suspension.  One firm even asked for a refund of monies already paid to Dr. Graboff for work he had performed before the suspension.  The economic loss was significant.

A Pennsylvania jury found that the AAOS had portrayed Dr. Graboff in a “false light,” by implying that he had made deliberately false statements in a “medical-legal report,” when in fact he had simply given a preliminary opinion to an attorney who had not supplied him with all the facts.  The jury awarded damages of nearly $200,000.

Dr. Graboff is to be commended for taking a stand against the intimidation tactics of professional organizations, some of which have been quite active in discouraging their members from testifying on behalf of injured patients in malpractice cases.  The AAOS system, for example, permits only fellow physicians to file grievances–so that a patient whose valid malpractice claim was defeated by false or misleading testimony from a defense expert would not be able to complain.

Juries are well able to listen to expert witnesses for both sides, and reach decisions on which testimony is worthy of belief.  Lawyers are well able to expose flaws in reasoning and methodology in expert testimony by vigorous cross-examination.   However, the integrity of the legal process depends on the willingness of qualified physicians to participate as advocates for patients who have been harmed by malpractice.  Without such physicians, the doors to the courthouse are shuttered to an injured patient.

The attempt by professional organizations to discipline members for having the audacity to testify against fellow physicians has a dangerous and chilling effect on doctors who might otherwise be willing to come forward on behalf of their patients.  The “conspiracy of silence,” which discourages physicians from speaking up against other physicians is strong enough without witnesses for patients having to face the added risk of professional disciplinary action for giving testimony that displeases the medical establishment.

While the playing field for patients can never be level, due to lack of access to information and continuing professional pressure on physicians, the Graboff court took an important step in helping to avoid making the situation any worse.

Read the full opinionin  Graboff v. Colleran here.


Liz Mulvey to Present at AAJ National Meeting

Liz Mulvey will speak on cross-examination at the American Association for Justice’s Winter Convention in Miami, Florida, on February 12, 2013.  The annual event brings together lawyers from all over the country for educational programs on various topics related to the representation of injured victims.

Mulvey’s lecture, entitled “Rules of the Road in Medical Negligence Cases – Cross Examination,”  will focus on how to use common-sense principles to cross examine medical experts.  She will join a panel of noted lawyers from across the country as part of a five-day advocacy track designed to help lawyers present their clients’ cases in a persuasive and effective fashion at trial.

The “Rules of the Road” approach, pioneered by trial lawyers Pat Malone and Rick Friedman, aims to help lawyers develop rules of conduct for different situations that help to frame the important issues for the jury.  Mulvey will discuss how to use the Rules of the Road in medical malpractice cases to conduct an effective cross-examination of defense expert witnesses and to help jurors understand why adherence to these rules is required for patient safety.

Mulvey, who has taught trial practice to lawyers from across the country, advocates an aggressive approach to cross-examination that attempts to establish important elements of the plaintiff’s case through the defense experts, and to focus on areas for which the experts may not be well-prepared.  Her techniques have led to many memorable examinations and courtroom successes.


Experts, Sign Here

signing document from topA recent change to the Massachusetts Rules of Civil Procedure regarding expert disclosure may create a short-term trap for the unwary, but in the long run will likely benefit plaintiffs by providing impeachment material for defense expert witnesses who have always enjoyed a fair amount of latitude to improvise in giving trial testimony.  Effective January 1, 2013, the Supreme Judicial Court has approved new Rule 30B of the Massachusetts Rules of Civil Procedure.  The Rule requires that answers to expert interrogatories be signed not only by the party, but by the expert, as a certification that the disclosure accurately reflects the expert’s opinion.

To lawyers who regularly practice in federal courts, or in other states where more extensive expert discovery is routine, this rule change may seem insignificant.  But to lawyers accustomed to the Massachusetts practice, where expert reports are not usually discoverable and expert depositions are permitted only by leave of court, this Rule represents the first opportunity to hold an expert witness accountable by impeachment with the contents of a party’s disclosure.  Until now, an expert confronted with an inconsistency or omission in a Rule 26 disclosure could usually avoid impeachment by denying any involvement with the preparation of the answer.  This new rule closes that loophole up tight!

While the rule applies equally to both sides–and even covers a party’s employees who regularly give testimony as part of their job duties–in many cases, the practical effect will be to help level the playing field for plaintiffs.

In many medical malpractice cases, the defense already has the benefit of a signed report from the plaintiff’s expert that was presented to a medical malpractice tribunal as required by General Laws, Chapter 231, Section 60B.  This report, usually prepared before the plaintiff is entitled to any discovery or depositions from the defendant, contains preliminary opinions.  These reports are intended simply to satisfy the minimal standard of the tribunal, and not to be a full disclosure of the expert’s opinion as required by Rule 26.  It is common that later testimony or records may cause the expert to modify some opinions and develop new ones which were not apparent at the time of initial review.  Nevertheless, most judges will permit the plaintiff’s expert to be questioned about this letter, and often will not permit the jury to hear about the circumstances surrounding its preparation, the purpose of the opinion letter, or even what limited information was available at the time.  Thus, the plaintiff is forced by the tribunal requirement to supply the defendant with a written opinion that often becomes fodder for impeachment, while the defense expert is not required to put his name to anything.

Rule 30B requires both sides to obtain their experts’ affirmation that the disclosure of their opinions is accurate.  Even in the absence of a signed report, this adoption by the experts of the disclosure statement should make the disclosure available for impeachment if the expert deviates in his testimony.   The Rule strikes a good balance between the need for both sides to have a means to impeach opposing experts and the greatly added expense of forcing an expert to prepare a report, as the federal courts require.

There will, no doubt, be lawyers who omit the required expert attestation, especially in the early days of the new rule.  The Rule is silent as to the consequences of non-compliance, but it is difficult to believe that a trial judge would preclude the testimony of an expert whose disclosure, although substantively sufficient, was not properly signed.  More likely, the offending party will be given an opportunity to secure the expert’s signature, as there seems to be no prejudice to the opponent as long as the disclosure is available for impeachment when the witness takes the stand.

The more thorny problem arising from non-compliance will come when an expert, presented at or shortly before trial with a disclosure made in his name, refuses to adopt it as his own.  In that situation, the proponent of the expert would be forced to attempt an eleventh-hour revision of the disclosure.  Depending on the nature of the change, that attempt may provoke the full range of consequences for late disclosure, up to and including preclusion of the expert’s testimony.