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Lecture 1: And.

SPEAKER 1 I won't now want to take up proving the plaintiff's case by expert testimony. The standard or customary practice by those in the defendant, doctor's specialty or area of practice is normally established through the testimony of expert medical experts. And the reason is that this is used to withstand the motion for directed verdict by the by the plaintiff. So if the plaintiff is going to use a medical expert, the medical expert must be qualified. Now, if the expert is not properly qualified, then the expert cannot give his or her opinion. So. Two is to make sure that the. Defendant does not get a direct verdict, basically saying that the plaintiff has not established his or her case. The plaintiff must, one, qualify their medical witnesses as experts. Number two. The plaintiff must satisfy the Court that the expert testimony will assist the trier of fact. And three. The plaintiff must have the witnesses testify based upon facts that support their expert's opinion that their their expert opinion. Now the expert ideally should be in the same specialty as the defendant who is being accused of malpractice. The A plaintiff must offer proof that the defendant physician breached the legally required standard of care and was thus negligent to a reasonable degree of medical probability. Now the expert is needed to establish both the standard of proper professional skill or care and a failure of the defendant to conform to it in the particular case at hand. Not more than one expert can be used in the case because you may need an expert. And as the plaintiff's lawyer for the issue, a breach of the standard of care. And you may need a separate expert for the causation issue, and that is whether or not the breach of the standard of care established by another expert was the direct and proximate cause of the negligence complained of. And a direct and proximate cause of the damage or death complained of in the case. So one can export can be used for standard of care. Another for causation. And also possibly another for damages if necessary. You might have three or more experts in the case. Now. The basis of an expert testimony is based on a level of scrutiny that has been articulated by the United States Supreme Court as they consider the admissibility of scientific evidence in the courts of the United States. Now the back I want to take you out, take you now into the background on the admissibility of scientific evidence. And this is an important part because in any malpractice case, you have to be able to get your witnesses qualified as experts. What I'm going to do is talk to you about four areas. First is historically, what what was the test for bringing in scientific testimony? The test was known as the general acceptance test. It was articulated in 1923 and was articulated in a case known as the Fry F our Wylie case. Then. This. Test of general acceptance, which I'll explain to you in a moment. Was superseded by the federal rules of evidence, specifically Rule 7.2, which I will outline for you in a moment. Then a very famous case occurred. The case of David versus Merrill Dow. The Daubert case dealt with the standard for admissibility of scientific evidence was decided in 1993 by the United States Supreme Court. That case I will outline for you briefly because of its importance. And then lastly, the Daubert case was expanded by two United States Supreme Court cases, one in 1997, the other in 1999, essentially applying the Daubert standards to all different all types of scientific evidence, not just medical evidence. So let me talk to you about the Frye general acceptance test. Give you some background on the admissibility of scientific evidence at common law. The Fry test governed the admissibility of scientific testimony in the very famous case of Fry versus the United States, a case that went to the United States Supreme Court. The case that was handled by a district court of the D.C. Circuit and then went up to the went up to the court of Appeals, the Fry case. In that case, the court rejected scientific testimony based on the use of a lie detector. Stating that, quote, 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. In order to be admissible. And this was decided as the general acceptance test. Essentially, the court said, look, we're not going to use lie detector test information. It's not generally accepted scientific evidence. Now, the purpose behind the Fry test was to prevent the introduction into evidence of specious and unfounded scientific principles or conclusions based upon these so-called specious or unproven principles. At the heart of the Fry case was the realization that the expert witness in these types of cases was simply a hired gun. Now, as I said, the Fry case was the general acceptance case. And here is a quotation. From a law review commenting on the so-called junk science in the courtroom. Whatever quote, whatever his credentials, publications or affiliations. A scientist who becomes the all too alter ego of a lawyer is no longer a scientist. So while a resume may be maybe a necessary condition of expert competence, it is never a sufficient one. Science is defined by a community, not the individual, still less by a resume. The cowl does not make a monk. So says this reviewer in a in a article entitled Junk Science in the Courtroom. So despite the uniformity of its followers, despite the uniformity, its followers argue in the Frye case that the rule does provide and it employs several terms that are open to differing interpretations. Who comprises the relevant scientific community? The the followers ask. After all, many scientific techniques do not fall within the domain of a single academic discipline or professional field. What also is general acceptance under the Frye task? Is it widespread, prevalent and exhaustive and not universal? Is it a is it an agreement by a substantial section of the relevant scientific community? What is it? It really wasn't defined. Perhaps the biggest problem with the Fry test is that it often resulted in excluding relevant probative evidence and thereby impeded the truth seeking function of litigation. And so a change was about to be made. Given the various problems associated with the Frye war, it was intentionally not incorporated into the federal rules of evidence when it was drafted, and it was essentially left out of the rules. Instead, the federal rules of evidence opted for a more liberal approach to the admissibility of scientific evidence. This more liberal approach was adopted by some 31 states as of 1988, has now been adopted essentially by all of them. The Federal Rule of evidence 702 provides, quote, If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact and issue a witness qualified as an expert by knowledge, skill, experience, training or education may testify. There are two in the form of an opinion or otherwise. Rule seven or three requires that the facts or data relied upon in the formulation of an expert opinion be of a of a quote type reasonably relied upon by experts in the particular field in forming opinions or influences upon the subject. And. No. The role of the fry test. After the adoption of the federal rules of evidence was unclear until the year 1993, when the United States Supreme Court decided a case called Daubert value BTR versus Merrell. Dow Pharmaceuticals, for reference, is 509 U.S.. 579. A 1993 case Daubert case involved two children born with serious birth defects. Their parents brought suit, alleging the defects were caused by the drug been detected. This was an anti-nausea drug produced by the predecessor companies of Merrell Dow Pharmaceutical in the early 1950s. The drug was approved by the Food and Drug Administration in 1956 as an anti-nausea drug. Physicians frequently prescribed this drug for treatment of, quote, morning sickness. And this was, of course, prescribed for pregnant women between the years 1957 and 1983. And well over a thousand cases since the availability of the drug in 1956, women have alleged that the combination of this drug, the combination of the drugs that make up in back then were causing. Birth defects in their children. Now. Mirador moved for summary judgment of this Daubert case, claiming that Benedictine did not cause birth defects and the plaintiffs would not be able to proffer evidence to the contrary. In other words, they said, Look. There is no scientifically reliable evidence that Benedictine causes birth defects in these children. To support their motion. That is, marrow does motion that the plaintiffs could not sustain their burden. Mario Dow introduced an affidavit of a well credentialed epidemiologist with a expertise in chemical exposure risks. The physician cited 30 published studies on the subject, none of which concluded Benedictine caused birth defects. Harold Dow says, end of story. Plaintiffs cannot produce countervailing evidence, but the plaintiffs did counter with eight well-credentialed experts of their own who had conducted various studies, all of which demonstrated a causal link between the product, induction and birth defects. Relying on the Frye standard. It concluded. The plaintiff's expert testimony. Was inadmissible. This is Meryl Downs position. The expert testimony was inadmissible because he was not quote, CIB sufficiently established to have general acceptance in the field to which it belongs. This was the position of Meryl Dao saying the Frye test applies. It is not a generally accepted doctrine that this causes birth defects. Studies to the contrary. Plaintiff loses. Defense wins. So says Merril Dow. The. Case was appealed. To the. And in that case, the fry test was used. The district court held for the defense. The case was appealed to the United States Court of Appeals for the Ninth Circuit. They affirmed the summary judgment, stating that the reliability of scientific technique must be generally accepted by the relevant scientific community for it to be admissible. And they said, therefore, the defense wins. They sustain the trial court's motion granting some sustain the trial court granting summary judgment for the defense. Defense. The plaintiff appeals to the United States Supreme Court. And the court. The. The case appealed to the United States Supreme Court of the Supreme Court, and they took in the case they vacated the judgment of the lower court, accepted the plaintiffs argument that the federal rules of evidence superseded. The fry test of general acceptance. And the court made clear that the critical concerns of Rule 702 are evidentiary reliability and relevancy. In other words, they said what what what the judges need to look at is what is relevant and what evidence is reliable. These were the two key tests evidentiary reliability and evidentiary relevancy. So what happened here is the court then in order to ensure the best way to ensure relevant and reliable testimony and exclude unsupported speculation. The Daubert case articulated by the Supreme Court established a two pronged test, which required a district court to determine, quote, whether the expert is proposing what whether the expert is proposing to testify one. To scientific knowledge and to. Will this scientific knowledge assist a trier of fact to understand or determine the fact an issue? This now was the articulation of a gate keeping role for the for the trial judge at the trial level. The gatekeeping role calls for the trial judge to make a preliminary assessment of whether the reasoning or methodology underlying the testimony was scientifically valid. In other words, whether it was reliable. And whether that reasoning or methodology properly can be applied to the facts in issue in the case, that is whether it is relevant to the issue involved proffered scientific evidence must satisfy both plans to be admissible, and that was to be determined by the trial judge. So step one. The first decision that the judge must make as gatekeepers must determine whether a witness is sufficiently qualified by knowledge, skill, experience, training or education before he will be permitted to give expert testimony. Step two. Once a judge has decided a witness is qualified to serve as an expert, the Daubert case requires the judge to then make an independent assessment to ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable. This involves an examination of the methodology underlying the expert opinion to determine whether it utilizes valid scientific methods and procedures. Daubert suggests several factors to aid federal judges in this determination. And the the the information that the judges are to use is as follows These factors to aid the federal judges in evaluating whether a particular scientific theory or study is reliable. Number one, it's empirical testability. Number two, whether the theory or study has been published or subjected to peer review. And number three, whether the known or potential rate of error is acceptable and for whether the method is generally accepted in the scientific community. But these factors are neither exhaustive nor applicable in every case. The gatekeeping role is simply to guard the jury from considering as proof pure speculation presented in the guise of legitimate, scientifically based expert opinion. It is not intended to turn judges into jurors. The gatekeeping responsibility of the trial courts is not to weigh or choose between conflicting scientific opinions or to analyze and study the science in question in order to reach its own scientific conclusion. Rather, it is to assure that an experts opinion is based on relevant scientific methods, process and data, and not on mere speculation, and that they apply to the facts in issue in the case. And so. That now is the standard by which. Experts are tested and evaluated so before an expert can testify in a medical malpractice case. Many times, attorneys will challenge these experts and have the gatekeeping function of the judge undertake an evaluation of whether or not what they are offering as evidence is in fact reliable and is based in scientific, reliable information and whether or not is verifiable. So the tests of scientific relevancy and reliability are really essentially guarded and evaluated by the trial judge. And if if it passes his or her muster, then the opinions can be offered to the jury. The. This standard has been applied now in other Supreme Court cases, not not only to scientific evidence, but it also involves technical evidence and other specialized knowledge. It must meet these this Daubert test. So the Daubert case has been expanded to reach now not only scientific or medical evidence, but any type of evidence that is essentially of any technical nature at all. So the use of the Daubert test is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. The trial judge is the gatekeeper to decide whether the experts are allowed to testify. It is clear, since Daubert, that experts are being challenged with increasing frequency, as I as I've said. The bottom line is, is the testimony reliable and is it verifiable? And again, the whole purpose is to avoid junk science in these malpractice cases and in other cases of science, scientific or technical evidence.

Lecture 2 And. So we've been discussing medical malpractice and now we're going to take up. The standard of care. And essentially we're going to take up the subject of the custom based standard of care. This involves whether a physician deviated from the applicable standard of care. And this is determined by what an ordinary, careful and prudent physician would have done under the same or similar circumstances. Now, this is essentially the so-called custom based standard of care, and that is articulated in some of the cases that you will study in your materials. The custom based standard is basically the sort of the foundational standard that has been used in medical malpractice, but some of that standard has been eroded away. And I'm going to talk to you about that here in a few minutes. Let me turn to the role of the jury in the modern medical malpractice lawsuit. Now medical customs have defined the physician's legal standard of care. As I said, the custom made standard is sort of the foundational standard in the in medical malpractice litigation. Again. Just for your reference, the four elements of the malpractice case, our duty that is was are a physician patient relationship established. Secondly, was there a deviation from the standard of care? By the health care provider. And if so, was that deviation the direct and proximate cause? And the fourth element is of the damage or death of the patient duty, deviation from duty, direct causation and damage. So medical customs. I have defined the physician's legal standard of care, and this has given the medical profession the privilege of setting their own legal standards. Because if it's the custom based standard, it's what is customarily done by the profession. In a same, in the same or similar circumstances. The jury's job in a malpractice case is only to determine whether the defendant has complied with the norms set by the medical industry. Contrast that with ordinary negligence cases where the defendant where the jury determines if the defendant acted reasonably under the circumstances. The difference is what is the custom and standard, as opposed to what a reasonable person would do under the same or similar circumstances. The reasonable person test has been the test traditionally used in regular tort cases, automobile cases, etc. And the custom based standard is the standard that has been used traditionally in malpractice cases. But now, as the jurisprudence is moving rapidly forward in medical malpractice litigation, there is a there has been. Established in the case law a retreat. From the custom based standard of care state courts in many cases today, and some of them are reproduced in your materials. Some of these state courts, actually many of these state courts are equating. Reasonable care to customary practice. In other words, instead of saying What is the customary practice ordinarily followed by physicians in the same or similar circumstance, the cases are now going off with the standard saying What would a reasonable physician do? Under the same or similar circumstances. And what what they would do is not necessarily equating to customary or normal practice. So the jury in malpractice cases decides whether the physician behaved reasonably, not whether he complied with customary practice. That seems to be the trend that we are seeing in the more modern cases. Now experts have argued what physicians should do is not what they ordinarily do. And so we are seeing, when we look at these cases, compare them and study them. We see that that courts are distinguishing between the customary, the custom based standard and the reasonable person standard, which is more of the general toward standard. Experts have said, as I just mentioned, that it. Really the test should be what physicians should do, not what they ordinarily or customarily do. The bottom line is that courts are deferring less to physicians than they once did. And they are less willing to erect special rules for health care providers. What we are seeing here is the abandonment of the custom based standard for measuring malpractice activity. We are now evolving with the more modern cases in malpractice law. We are now evolving a general obligation of, quote, reasonable care. So here. The task of standard setting is taken away from the profession. And assigning it to the jury. Which again, is the fact that the courts are stressing more of a reasonable and reasonable assert reasonableness test. I wonder the jury applied reasonable physician standard. By contrast, the jury now determines what a reasonable, reasonable physician would have done under similar circumstances, not what the profession does under similar circumstances. Medical customs are admissible in these cases, but they are not binding on the jury. The jury can evaluate for themselves what the conduct should be based upon a reasonableness standard. Here, the jury decision making is more likely to incorporate community values, and this also affords more protection for innovation in the profession. That is what is reasonable, as opposed to what was just done year after year as a customary practice. So that takes us a little bit into the concept of the so-called standard of care in a medical malpractice case. Let me turn now to the topic of liability for supervising physicians. You know, there are situations where doctors are called upon to supervise other members of the health care team, whether it is a resident. Whether it's an intern, whether it is a other health care provider, and one of the other specialties, whether it's a nurse, whatever. The law says that if a physician is called upon to supervise another in the health care field, they are liable for reasonable supervision. If the supervision is inadequate, then the supervising physician will be charged with malpractice for failure to properly and appropriately supervise one that is under that person's control and direction. Now let me turn to. What is known as the apology shield statutes. The apology shield statutes are statutes that have been passed by various legislatures. To help protect physicians who disclose errors to patients or expressed regret to patients as a result of a less than expected outcome in a in a case in and in this situation. State legislatures have created these apology shield statutes. That indicate that if a physician. Finds himself or herself in a position where a world where the physician believes it is incumbent upon him or her to disclose errors that may have taken place in the care or treatment and medical management of the patient. Or the physician determines it's best to express regret for what has happened in a particular case. These statutes shield the physician from liability if in fact the physician engages in such conduct of apologizing, pointing out errors or even expressing regret. Now, this, of course, is to encourage open and honest communication between the physician and the patient. These apologies, shield statutes, indicate that if a physician engages in such conduct, that conduct and those admissions, those disclosures cannot be used against the physician in a subsequent medical malpractice case. And.

Lecture 3: And. Now, let me turn to the concept of. Is there really an articulated clearly understood. Now a well-known standard of care. In other words, is medical consensus real? Is there really an articulated standard of care that can be relied upon in these medical malpractice cases? Well, the question is, generally these standards are an amalgamation of conversations, studies, treatises by physicians who come together and communicate what they believe is the appropriate. Practice for a particular set of facts. So in in essence, the conglomeration of these opinions, ideas and thoughts on these aspects of medicine equate to a consensus and equate to what we referred to as the standard of care. Does actual practice measure up to accepted medical standards? That becomes a very provocative question. The real reason for the reasonable physician standard is that unfortunately, in many situations. Actual practice does not measure up to the accepted medical standards. It may be something less than it then is articulated as the standard. And that may not be negligence, because it's basically based upon what is the generally accepted standard, not the highest standard, but what is the generally accepted standard. But because of this, because of this area of confusion and areas of non clarity, the reasonable physician standard has emerged. And basically that is what what will a reasonable physician do? Faced with the same or similar circumstances, and if the testimony of the experts is that a reasonable physician is faced with a similar set of circumstances, would have done what the defendant physician did in the case. Then the the jury could find that there is no negligence, no deviation from the standard of care. Now in medical malpractice cases, there is also a concept known as an award of punitive damages. Now, this is very rare in medical malpractice cases because punitive damages are damages that are awarded by judges or juries for conduct that is not only below the standard of care, but conduct that is essentially intentional or willful and wanton, almost so reckless that it is essentially almost equated to an intentional act. And that's why most situations like we find in medical malpractice litigation do not rise to the level of punitive damage awards. Another factor of punitive damages is that since it's equated to an intentional act. It is not covered by professional liability insurance. So if, in fact, a health care provider is. It is a hit with punitive damages. Those damages are not covered. By the malpractice carrier, and therefore those damages would have to be paid out of the pocket of the physician if in fact they held up. After, of course, most probably being challenged in court. All right. Now I'm going to turn to variations in the standard of care. And to do that, I want to raise the. Concept of one of the variations in the standard of care. And this is a concept known as the two two schools of thought doctrine. Now the two schools of thought doctrine is an absolute defense. To a medical malpractice case. What is the two schools of thought? Dr.. Medicine is not an exact science, and there may be. Pardon the expression. More than one way to skin a cat. And when there are more than one way to treat someone or when when there's more than one way. If that second way comports with the standard of care. If it is an accepted. Process an accepted treatment modality. If it is an accepted way in which to deal with the particular malady, then it is an accepted standard and it is not negligence. So a defendant could come forward and say, Wow, I did not follow. The standard of care articulated by the plaintiff's expert. I followed a standard of care that is still acceptable under the circumstances. And it is a second school of thought on how to deal with this situation. And it is it is an accepted school of thought. And I should not be held culpable for using that school of thought, because it is a accepted consensus of dealing with the problem that there is more than one way to deal with the problem. So essentially then this two schools of thought doctrine is a defense tool where the defense can distinguish the way the matter was handled, but still raise the fact that the way in which the patient was cared for, treated and handled, was within the accepted consensus and thought and accepted standards for this particular problem. So that's the so-called two schools of thought doctrine. And when it is, it is used. And if there is substantial evidence that there are two schools of thought in the management of a particular situation, this can be a complete defense for a charge of negligence by the by the patient plaintiff.

Lecture 4 And. Now. Let's talk about. The standard of care in terms of its geography. And limitations. Dating back. Few decades ago. Was the concept of the standard of care is measured by what is known as the locality rule. When medicine was not as broad and as universal as it is today. Physicians were judged by the area in which their practice were practicing. So if a physician was practicing in a small rural community, he or she would be judged by how physicians dealt with situations in a small rural community. But medicine has changed. The world has changed. We have the Internet and we have the transference of data instantaneously across the entire world. So the access to information is so different today that the courts have abolished the locality rule. And basically, in malpractice, we now look at the the standard of care as a national standard, because physicians anywhere can access information from anywhere, almost, almost anywhere, and cannot then access almost any information. So. Defendants are held to a standard of care of a reasonably competent physician acting in the same or similar community as the defendant. And this has been the sum of the cases that have been decided, and some of those cases are in your materials. Some of those cases have set forth this fact that the reasonable physician standard in a same or similar community is a outright rejection of the locality rule and basically a a a transference over to a more national standard of care. So again, but when I when I wanted to go, I just referred to the two schools of thought doctrine. So if there was a doctor in a in a small community and that doctor made an educated choice among two or more reasonable paths to deal with a particular patient and the doctor in the larger community would have taken the other path. But both those paths are acceptable. Then the two schools of thought doctrine apply. The doctor is judged by what a reasonable physician would do under the same or similar circumstances, in a same or similar community. And therefore, that doctor would not be held responsible. Now we have situations where. Physicians engage in medical experiments. Now if these experiments are done for therapeutic reasons. Then these experiments are acceptable. And if there are experimental deviations from customary practice standards, liability is usually avoided by using the informed consent laws, which is essentially disclosing. To the patient that this is experimental therapy, getting the patient's acknowledgment that the patient understands the risk, perils, options and hazards of that experimental therapy and accepts the experimental therapy, knowing that it is a deviation from the generally accepted standard of handling this particular type of medical problem. So these medical experiments, while a deviation from a standard of care, if appropriately documented with informed consent, can be justified and no liability will attach to the physicians who are engaged in the experimental therapy. Now, what about our orthodox unorthodox medicine? You know, there are people out there of faith healers, people who use all different types of modalities to try to cure what ails us. And some of it is considered quite unorthodox. Some of it is considered really not medicine at all. Some of it is concern and considered almost quackery. However unorthodox medicine is. Appropriate and accepted. And if it's properly informed, if the patient is properly informed, one can say, Look, I'll let you use the this potion or lotion. I'm not guaranteeing that it does anything or it's not designed to cure any disease. But we found that if you use it, you'll feel better. And if those types of disclosures are made, this unorthodox medicine approach can be appropriately used, even though it may have no medical impact whatsoever. Now I want to go back for a minute to the two schools of thought doctrine, because one thing that this doctrine does not permit. It does not permit or allow. A. Single doctor who has some personal beliefs. About a. Without some care treatment, a medical management of a patient to be elevated to a binding standard of care. It has to be schools of thought that are based on multiple. Physicians opinions. Consensus reached by a group of well thought of physicians and surgeons in the area. By the area in the area of the specialty. And it can't be an isolated expert who gives an opinion and says, this is the way I would do it without any support for the fact that it is a consensus of care, not just an opinion of one or perhaps two doctors. So the legal effect of the two schools of thought doctrine is not just an isolated expert raising the standard of care. It has to be really a consensus of two schools of thought. Another reason why this so-called locality rule has been abandoned is what we used to refer to when I started practicing law in the area of medical malpractice many years ago. What is known as the conspiracy of Silence. The conspiracy of silence is a situation where local physicians will not testify against other local physicians, basically saying that they are not going to opine on anything, but as someone who is practicing in the same community has done. They say it's a small community, whatever. We're not going to get involved in criticizing our brethren in the same profession, which is why the locality rule in part broke down is because it really it's a locality rule applied. You couldn't get anybody to testify from a locality. You couldn't mount a medical malpractice case. But when the standard of care was broadened to a national standard, then, of course, experts could opine on the care or treatment of medical management from anyplace within the continental United States. Let me turn to one additional statement, one additional topic, and that is, does the defendant violate the standard of care? When? Costs of treatment come into play. Now, I could tell you as a defense lawyer. You never want to raise resource concerns. As a reason why you you've committed beneficial treatment to a patient for fear that the plaintiffs are going to turn that defense against you by asking for punitive damages, saying. Money should have nothing to do with it. Your responsibility is to care for the patient so that you never want to raise resource concerns in these cases. However, there are cases where the costs of treatment can impact the the standard of care. So the question I raise. Here is should the cost of treatment affect the legal standard of care? And that's a question I want you to think about and to ponder. There is a case in our materials. Where no malpractice occurred when a medicaid patient lost her leg as a result of being released from a hospital in four days rather than eight days. Her doctor had requested that she stay in the hospital eight days, but the Medicaid would Medicaid would only pay for four days. So they released her from the hospital in four days instead of the eight days. And she sues the state Medicaid organization, not her doctors, claiming that they jeopardized her health by essentially ignoring her doctors requests and. Sending her out onto the street. In four days. The court held. There was no malpractice here. Interestingly, this was not a malpractice case. It was a case against Medicaid itself. If negligent treatment had been involved in that particular case, you may be able to argue that cost was a factor. But when there is no negligence, courts are very reluctant to say the reason that they should impose liability was because the costs of the care impacted the care. Now, that may seem that may not seem fair to you and you may have a good argument, but generally the courts have held that the costs of treatment should not affect the legal standard of care. And certainly the defense can argue that the reason we didn't provide this care was there wasn't anybody to pay for it. That just isn't going to fly in today's world. I'll take a break now. Lecture 5 And. Now I take up once again the concept of negligence per se. And race, absolute water. Now, these are concepts we've been talking about the standard of care. We've been talking about ways in which to prove a negligence case in medical malpractice. And we've talked about ordinary negligence. And now we are going to aren't going to talk about other ways in which plaintiffs can establish negligence against health care providers. And one, as I have talked to you about before, is the concept of race. So it's a locator, which means essentially this thing speaks for itself. And in the concept of race, it's a little. Remember that we have to have exclusivity of control over the facts of the case. These are cases that usually involve people who have been in surgery under an anesthetic, wake up with all sorts of problems. Don't know what happened because they were asleep and basically say to the health care providers, look, you're going to have to explain what happened here because I was out cold. And I'm going to shift the burden over to you, the health care provider, to explain why I look the way I do or the why my leg isn't here when it was when we started. I don't mean to be facetious here. Or why I am in a condition of paralysis when? Before I was paralyzed. What happened here is you had control over all of this, including my. Including me, your patient. And now this horrible. These horrible things have happened. So we have some case. There are materials where a physician gave an injection to a patient and broke the needle off into the patient and the patient sued. And in that particular case, the court held that there was not sufficient expert testimony that would indicate whether or not the breakage of the needle was either negligent or whether it happens in whether this happens, this can happen in the absence of negligence or whether this can only happen when someone is negligent. Race hips only applies if the explanation of what happened can only happen if someone was negligent. Now again, I want to review the various categories of negligence. There's ordinary medical malpractice, ordinary negligence, racism, local order, and then negligence per se, which is normally the violation of a statute or rule. And then, of course, the common knowledge rule and the common knowledge rule is basically you don't need experts. It's just common knowledge that something happened. You could say, for instance, common knowledge rule would be if a patient wakes up and they left an instrument in the patient. Common knowledge says in surgery, if you use 100 instruments, you remove 100 instruments, not 99. And and if there's one in there, it's pretty common knowledge that that was left in there, basically by mistake. So negligence per say then is the concept of is really restricted in medical malpractice to certain factual situations such as incorrect sponge counts amputating the wrong leg. Here, negligence is so obvious as to be beyond dispute. Negligence per say and the common knowledge rule would also apply in situations where, for instance, you left an instrument in which should be there. So you could, you could, you could you could bring your case under a negligence per se concept or a common knowledge rule concept. So there is a very famous case in our materials, the case of helping Angola client versus carry a 1974 case. And this is a case about ordinary negligence. But the reason I bring it up is that this was a case that abandoned the custom based standard, adopted a reasonable position standard. And the case has not been followed to any great extent. But it has it did kick off a good part of the medical malpractice crisis in the 1970s. So let me explain a little bit about this case. This was a 40 year old woman who went in to see an ophthalmologist to be examined because of pain in her eye and some other complications. And the and the ophthalmologist said, you know, I'm not going to give you a test for glaucoma, which is the buildup of pressure in the eye, which can cause blindness because you're under 40 years of age. I think this patient was under it was under 40. I think I said 40, but I think patient was under 40. And the standard of care, the customary standard of care was that patients under 40 didn't get glaucoma. So no glaucoma test, no pressure test was offered to the patient when in fact, the patient had glaucoma. And when, in fact, this caused her severe damages. She sued and the defense contended, We comported with the standard of care because you don't have to examine the ocular pressures of patients under 40 years of age, because the standard of practice is patients under 40 to a high probability don't get glaucoma. Court said no. No, we're not going to look at it that way. We're going to look at what a. Reasonable physician would do under the facts of this case. And they said what a reasonable physician would do with those complaints is to evaluate the patient. And had they evaluated the patient, they would have seen the ocular pressure was elevated and they would have treated this patient for glaucoma. This Court abandoned the customary based standard and accepted the reasonable physician standard. It was one of the first cases that really changed the tide of the way these cases are looked at. Helling case sent shockwaves throughout the insurance industry because the insurance companies said if courts are going to start looking at what is reasonable as opposed to what is customary, we don't want to be part of this. We're going to stop insuring doctors. We're going to go into some other insurance market. We're not going to insure doctors because it's too risky if we're going to leave up to juries. What is reasonable care in a medical situation? We think that this is not anything we want to be part of. And that kicked off the medical malpractice crisis of the of the 1970s. It created the crisis that went on for decades, decades. And. That is something that we will talk more about in this course. Let me turn now to. Medical uncertainty, diagnostic diagnostic testing and legal liability. Now physicians are reluctant. To acknowledge the existence and role of uncertainty in medical care. Because it almost admits fallibility. To protect themselves, they resort to defensive medicine. Instead of acknowledging that there is this concept of uncertainty. The physician's resort to. Running more tests to assure that they are getting the right answer. In the Helling case that I just referred to, where the patient was not treated for glaucoma. The patient should have been tested on the basis of her complaints and her symptoms. Despite her youth. That would have been the appropriate way to manage that case. Instead, the defense relied exclusively on. What is done customarily in the practice. So the medical malpractice crisis of the seventies and the withdrawal of these many insurers that I've talked about from the medical malpractice market and the resulting crisis was kicked off by this sea change that seemed apparent from the Helling decision. But how long? Has remained a case that's not really endorsed by other courts. The telling case said that customary practice was negligent as a matter of law. That's not what courts are saying today. Courts are because the courts have accepted a reasonable physician standard. They're not equating it to negligence as a matter of law. Essentially, in the Helling case, they went ahead and said, you didn't test this patient for glaucoma. Patient should have been tested for glaucoma. Doctors negligent. That was too forceful a position. Which is what panicked those insurance companies. So there's a modified reasonable position test, and that is what would a physician do under the same or similar circumstances? Now, customary practice and customary care treatment of management can be evidence to support or to negate. What happened in a particular case. But no case has gone as far as having to basically say the fact that you didn't do it is essentially a negligence as a matter of law. Almost saying that this is there is no question here that was a rogue case as it stands today. Today, expert testimony is necessary to show whether or not a particular practice is reasonably prudent. And if if that medical expert testimony is not there, then the defense will win the case. Let me turn to the technological imperative. The technological imperative compels the use of all available technology, regardless of economic and sometimes even medical costs. So if there is technology out there, that would help. Diagnose a particular problem and it is not used. And the reason it is not used is because of economic reasons. One would most probably find that practitioner negligent. Now we know from our readings and obviously from just common sense that not every community has the latest technological advanced equipment and diagnostic modalities. So that does not mean that cases cannot be referred from these smaller communities to these larger medical centers if necessary. But if there is a failure to refer and a more technological diagnostic method is available and it is ignored, the physician fails to take advantage of this might be held responsible or negligent for failure to engage in the most modern technology to to complete a accurate diagnosis. Tough. Let me break.

Lecture 6 And. I'm now going to take you in. To a. Real life medical malpractice case. This was a case that I handled. And I'm going to show you what a malpractice case would look like in a courtroom in terms of its evidence and talk a little bit about the standard of care. This case involved. A woman. I was operated on in June of night of 2007 for what is known as an acetabular revision surgery. And essentially what this surgery entailed. Was the replacement of a part. Of her hip. Now in our. In our body. We have. The hip joint. And the hip joint essentially is. A ball. And socket. And this is the large bone of the leg, the femur. And when it's all put together, the ball sits in the socket and that enables us to move our leg. This is the hip. This is the hip bone. Now when someone has a hip replacement, usually what happens is the surgeon will drill a hole in the bone and stick a prosthesis, which this is a the head of the prosthesis. And that usually has a long stem on it that is set in the bone and the bone grows around it, or they put cement around it. And that has to attach into the hip. And so what the surgeon does is he. I'll take the ball and attach it into a cup which is seeded in the so-called acetabular rim of the hip. So when with our God given leg and hip, there is a natural cup that is in here. But when that cup becomes eroded or damaged, then the cup is removed and an artificial cup is placed in the cup. Now to keep that cup there. You have to take that artificial cup and screw it in to the hipbone and then attach the prosthesis into the hip. And that's what this case was about. Now, this was not a case replacing the prosthesis because the woman had already had her hip replaced and the prosthesis was good, but the cup had worn out. So this was a surgery simply to replace that cup. So what happened here? So here we have. The. Depiction of what is supposed to go on in surgery. And that is that these the this cup is set into the acetabular space and then screws are put through the cup. The cup has holes in it previously drilled. And you screw this. This cup into the acetabulum in the hip. And then attach the ball joint to the hip. The key to this case was how they affixed this cup. Into the hip. Now here. Is an actual x ray. Here is an actual x ray. That we have put behind. A model. I'll tell you why we did that. Because you'll notice that this is the prosthesis. And attached now, of course, is bone around us. But this is the prosthesis attached to the cup. But when the surgeon. Attached the cup. He used screws that should have only gone to the edge of the bone. But what you see here is these screws went outside the bone and into the cavity, which is outside where the hip bone lies. You'll see what that what happens there. Now, why did we use the X-ray? We use the X-ray because these screws that were put in there, actually three of them. Put put in the wrong place. Because the screws should have been in this area. And up into this area. Instead, they went immediately out into the body. And the reason we used the x ray was to verify the placement of the screws because there was an x ray which showed exactly where the screws were in conjunction with the cup. Following along. What happened in this case was that this is the this is a picture, a depiction of what the surgeon did. He replaced the cop. Attached the leg. And we would have attached the leg with the prosthesis. Yet the screws. Were way too long for this surgery. And once again, we checked the location of those schools with the x ray. Now, when we took the doctor's deposition, we had this model. And this is a model of their bond and that acetabular cup. And we said to the doctor, would you take a red marker? And Mark, where you. Mr. Surgeon. Dr. Surgeon. Where you placed those screws. Now, keep in mind that we know where he place the screws because we have an x ray that was taken. On the patient. After the screw was replaced. So the doctor said, Well, I placed the first screw. In this area here known as the pubic ramus. And he said, I. Screwed it into the pubic ramus. And I took two screws. And screwed them in to the issue on the. Hipbone. We said, Why are you sure about that, doctor? Yes. Again, we had the X-ray we had showed in the x ray, yet apparently he had looked at it. But he said this is where he placed the screws. With that in mind. If the surgery had been done, as he described it. Then the surgery would look like this. One screw down into the pubic ramus and two screws into the Isham. Basically long screws because there was sufficient length. To anchor those screws. But that's not what he did. What did the doctor think? What? What he thought he did in surgery. We diagramed it. And then what he actually did. Now, what we what he thought he did was on the left hand side. What he thought he did is what I just showed you a screw into the pubic ramus and two screws into the bones of the issue, in fact. What the x rays verified was. Two of the screws. Basically three of the screws. We're not in the pubic ramus or the ashram. They were immediately out into the patients space. Which abutted the hip. What's the effect of that? Well, there is medical literature that tells us where are the safe zones to put these screws in hip surgery. And the. Areas where you do not. Want to put these screws? Are these areas right here? Now, we asked the doctor to draw where he put the screws. And these were squiggly lines on this drawing were his marks. And he said he put them the screw right here. And the ramus and the pubic ramus. And in the issue. Obviously if he had said he drew them out here. These are zones that are called not. They are non safe zones. Why are they not safe? The answer is because underneath this area. And this area is a vascular highway of vessels. And if you put screws there too long into this area. You will hit those vessels and you can cause a catastrophe. Which is what happened in this case. Now, pardon this. But this is what we used in the trial. This is from the autopsy. Those of you who can't deal with this, feel free to look away from your screen. But what this is, is the autopsy of this patient after the patient died. And what. We see here is the scrutiny. We see the screws coming out. And the blood vessels are actually wound around these screws. They actually screwed through the bone into the blood vessels, tore through the blood vessels and actually wound the blood vessels up around these screws. And of course, the patient is sanguine. This is what? The. Surgery should have looked like. In fact, what happened here? Was that those screws penetrated outside. And hit the tiers through the left common iliac vein. Which carries blood from our lower extremities back up to the heart. The screw went through. Tore it open and the patient essentially bled to death. On the operating table. A surgical screw tore through the left common iliac vein. Causing the patient. To pour blood into the abdomen and what is known as the retroperitoneal space. Again, the surgeon is not aware of this. The surgeon is blithely is bland, is boldly operating. On the patient. Believing that everything is fine when suddenly the patient's blood pressure plummets. And the page and the doctor realizes something terrible has happened. The doctor calls in a vascular surgeon who tries to find out where the bleeding is coming from. And by the time they are able to ascertain where it is coming from, the patient has bled out so profusely, pouring blood into the abdomen and the retroperitoneal space. That the blood. The flood could not be stopped because essentially you have torn through a major blood vessel. And the. 521. The patient dies as a result of massive bleeding from the left, common iliac vein. So what we have in this particular situation is a deviation from the generally accepted standard of care. In that screws that were used in this surgery that were put medially way too long and fell below generally accepted standards of care. If they had used that size screw and they had planted it appropriately into the pubic ramus or the or the and the issue as originally contemplated. Then, of course, the the the case could have been defensible, but the doctor did not do that appropriately. And the doctor was held negligent for the care, treatment and medical management of the patient. That is an example of a medical malpractice case. Obviously, in this case, experts testified on behalf of the doctor, indicating as a defense that while he intended to go to the right place, there was some misplacement of the screws. But that's a risk of the procedure. The defense, the prosecutor, the plaintiff we represented, the plaintiff in this case, argued. No. There are certainly ways in which one can verify where you're putting those screws and if you're going to use a screw of the length that was used almost three times the size of what screws should have been used in this case. If you're using a screw of that size, then you have to have some form of probe or evaluation as to where that screw is going. Knowing full well that that, say, that unsafe zone that we referred to, it could be impacted. So you must be very careful when you when you put those screws into the area. Just one last point. The. The fact. That. So the doctor was claiming that, yes, they missed the point. They missed where they wanted to go, but that's the risk of the procedure using screws of this size. And if they miss where they're going, by the way, that's a very, very narrow pass to get into pubic ramus in the first place. They chose long screws. If you're choosing long screws, you have no room for error, because if you're wrong, you're going to hit that vascular highway, which is exactly what happened here. So again, you'll see that these malpractice cases are a battle of experts. But again, using video visual aids such as this, it's pretty clear that the jury could have a pretty good understanding of what happened. And then they they listen to the experts testify as to what was done, what should have been done, what was actually done, and the impact of all of that. So that gives you a little bit of insight into how a typical medical malpractice case is tried. Lecture 7 And now having seen a medical malpractice case, let me turn to the examination of experts and the introduction of treatises and guidelines, because obviously the case that I just showed you required experts both for the defense and for the plaintiff in this medical malpractice case. Now, to use treatises and guidelines, the law tells us how to do that. Historically, before an expert could testify in a medical malpractice case, the expert had to be given a hypothetical question, which incorporated all of the relevant facts in the case. And then the expert was asked, based upon that hypothetical question, Do you have an opinion based upon a reasonable degree of medical probability or certainty as to whether or not the defendant deviated from the generally accepted standards of care in his care or treatment and medical management of the patient? And if so, did that deviation directly and proximately cause the damage or death of the patient? In this particular case, if a hypothetical was to be used, I would have had to describe that entire event that I just narrated for you with the diagrams in a hypothetical question. But this rather complex chain of thought for the for the jury is not being used anymore because the jury found it too hard to comprehend and absorb. So for lawyers, it was also dangerous in that if a fact was left out of the hypothetical, then the opponent would say, Well, Your Honor, we object to this hypothetical. It did not include all the facts of the case and therefore was not representative of the facts of the case and would be misleading to the jury. So a lawyer runs a risk of either including too much or too little in the hypothetical. So this subjected this process to many objections in the courtroom. It made these cases very difficult to handle. And so. What if one of the facts was proven wrong? The whole opinion, the whole hypothetical would be essentially found to be inaccurate. And then the opinion of the expert would not be admitted into evidence, and the case would become extremely cumbersome and hard to deal with. So there is a modern approach and that a modern, modern approach has been found in federal rules. 701702703 and 705 These are the rules of evidence, the federal rules. And and those rules are followed in most states. And this this modification requires that the lawyers do not have to disclose the foundational points. They just asked the witness witness expert, did you review the medical records and depositions and all the pertinent facts in this case? Answer Yes. Now, Doctor, based upon your review of all of the records in this case and the appropriate depositions and other factual matters, do you have an opinion based upon a reasonable degree of medical certainty or probability as to whether or not the defendant deviated from the generally accepted standards of care? WITNESS Yes, I do. And Doctor, what is that opinion? Opinion? I believe that the doctor deviated from the generally accepted standards of care. Now, Doctor, could you please then give us your reasons why you believe the doctor deviated from the generally accepted standard of care, and then the doctor expert goes on to explain his opinion. After that opinion is obtained, then the lawyer has to go to causation. The next element. Doctor, do you have an opinion based upon a reasonable degree of medical probability after reviewing all the pertinent information in this case as to whether or not the deviation that you just previously testified to directly in proximately caused the damages that are being complained about in this case. Witness Yes, I do. Doctor Could you provide us, please, with your reasons why you believe that this deviation directly in proximately caused the plaintiff's complaint of damages? Now. The way the courts deal with this is the opponent can cross examine the expert and explore the foundation points and the expert. The cross-examiner can say, Doctor, let's look at what you included in your opinion. And if there are things left out, the cross-examining lawyer can point that out and try to either negate the opinion or to neutralize the opinion. Now, so this is the modern approach to the use of these, the use of the expert witness. Now what if you want to use a treatise, learn a treatise to cross-examine the expert. Here are the emerging approaches. Federal Rule 803 Print 18 Federal Rule of Evidence 18 Hour Rule 803 This allows testimony either in the direct or cross-examination from learned treatises, guidelines or other similar authoritative sources that the expert acknowledges as, quote, reliable, end of quote. In other words, you cannot use a treatise or guideline unless the expert can acknowledge that the the document that you're using, the treatise, whatever you're going to use is reliable. So you have to ask the witness that doctor I have before me. Steadman's book on surgery. Doctor, this is the 2018 edition. Our statement of what is orthopedic, whatever it is. And Doctor, do you consider this book a reliable source? Now, if a doctor says, no, I don't, then you can't question him on the the and on the on the book. It has to be something that the witness acknowledges as reliable. So these witnesses, expert witnesses, are pretty much school on not acknowledging anything as being reliable. They'd say, look, I can I refer to it, but it's not, in my opinion, would not be reliable because books are out of date almost from the day they're written or this article is not reliable because there are other articles that say something different and they give you every argument in the books so that they can't be confronted with these treatises. So there are ways around it. Since the prerequisite is determining reliability. One of the things I do is I don't show them the book. I just ask the question. Doctor, let me ask you this question. And I read from the book without acknowledging I am reading from the book and I read the principle of whatever is in there and say, Doctor, do you agree with that concept? Now, either they do or they don't. Another way around this is to use words other than reliability, so they don't allow you to do things like, Doctor, do you have a library at all? Yes. Do you have medical books in your library or what medical books, doctor, you have in your library? Why do you have those books in your library? Well, I have them to refer to. So if you refer to them, you refer to them because you believe that there are books that will help you look at some modern approach to a particular matter. Is that right? And you can sort of talk around this issue. Again, lawyers find creative ways in which to use these documents. And in the particular case I showed you a few minutes ago, the acetabular revision case, we used articles that indicated what those safe zones were for the insertion of screws in an acetabular replacement surgery. And since the doctor had acknowledged in his deposition that he was one of the leading authorities in the country, his own admission in revision surgery, we said, certainly, doctor, you've read these articles and certainly you would have to agree that there are certain zones that you don't want to put those screws in. Isn't that right? And that's where we got the diagram in the first place. He acknowledged that those documents were authoritative and reliable. One of the things that the rules require is that you can't put the treatise in evidence. You can only read the statement if the prerequisite is established, and that is the prerequisite of reliability. Now what about practice guidelines now and practice guidelines or or package inserts in cases of drugs? I have unique status for the prescription drugs usually are found in a dot in a book called the PDR The Physician's Desk Reference. And this contains Food Drug Administration required warnings and instructions for the use of drugs. Now, these guidelines are admissible as independent evidence of the standard of care under the hearsay exception of lists related upon relied upon by persons of a particular profession or occupation. And that exception is a federal rule of evidence. 803 Paran 17. So these guidelines are admissible. So if you're dealing with a drug or the use of a drug and you want to get in the information about that drug, you can usually get the the PDR or the inserting information into evidence because it is information relied upon by persons of particular profession, which of course, are physicians. Some courts will actually just let it in as primary prima facie proof of the standard of care. Now, as to other practice guidelines which are now being written in greater numbers today, some argue that they should now be taken as conclusive proof of the standard of care. If they are sufficiently authoritative or at least presumptive proof of of them being authoritative. And because these guidelines are being used almost in every aspect of medical care today, again, for the most part, courts don't recognize them as the standard of care, but certainly permit them in is evidence of the standard of care and certainly can be used as a seal, as a shield. In cases where doctors can say, look, I this is the recommended treatment modality and I followed it. And in cases used by the plaintiff, they can say this is the recommended treatment modality. And the doctor did not do that. And when you cross-examine the doctor on deposition, say, doctor, you're familiar with these guidelines, are you not? Let me read them to you. Doctor, in this particular case, you didn't do this and you didn't do that, did you? Now they're in the guidelines. Actor But you didn't do them. The jury is going to be impressed with the fact that these guidelines are out there by promulgated by some pretty thoughtful folks. And they were not they were not, in fact, followed. And in this particular case. But. Lecture 8 And. Let me turn now to physician report cards. The statistics on good and bad outcomes of practitioners are being memorialized in physician report cards. These are discoverable