"is not a recognized risk of the procedure and would not have occurred but for..."
The phrasing of this sentence is so withing the norm for how people actually talk in the 21st century that it is completely believable that a CT surgeon and a Perfusionist would have used EXACTLY the same phrasing in their opinions.
All kidding aside, it is frankly disgusting that "expert opinions" that were clearly written (at least in part) by the plaintiff's attorney are admissible in court. It would likely be banned by law "but for" the propensity of legislators to also be lawyers.
The way these reports are typically generated is as follows. We send medical records to the expert with a retainer check and ask them to review. They let us know they have reviewed the records and we schedule a telephone consult. During the telephone consult the expert lets us know if they think there was malpractice or not. If yes, we take notes detailing the expert's specific opinions on breaches in the standard of care/causation. We draft their report with the breaches/causation opinions that they disclosed to us on the phone consult, then send to them to review, and if necessary make changes, BEFORE they sign.
My point is, the lawyers aren't just throwing breaches or causation opinions into an expert's report and convincing them to sign off on things they don't believe in.
Thank you for the insight. that for good and scrupulous attorneys and expert witnesses this is the case, and this likely represents the majority of the people involved in these cases. I was implying that there is most likely a subset of individuals that either do not fit into this group or, in the case of expert witnesses, are willing to sign off on documents without a thorough consideration of the assertions therein. I have had the misfortune to run across physicians of this type in my time in the clinical realm (often referred to derisively as "bottom feeders") that will do anything for a buck.
My original comment was also based not just on speculation, but from reading previous "expert" opinions on this frankly amazing blog in which things were asserted to be the "standard of care" which either were not, or in some cases were flat out wrong--even to the point of not being recognizable as potential "former" elements of the standard of care in recent memory.
In some way, there is likely selection bias in the presentation of these cases towards cases with... interesting... expert opinions as the cases where everything went right and were slam-dunk in favor of either the plaintiff or the defendant likely don't make for the most interesting case studies!
I also have found that my eyebrow has gone up in indignation almost equally in frequency when reading opinions from experts for the plaintiff and the defense.
I agree that there are those types of expert witnesses on both sides. I have my qualms with the way medical malpractice litigation has evolved over the years on both sides as well. I only take cases I strongly believe in and do my best to only consult with experts that are credible, but its becoming more and more difficult to find those type of experts because medical malpractice litigation is so polarized. I appreciate you taking the time to respond and agree that this substack is amazing!
Thanks for the insights! I will also add that some states have specific language requirements that are mandatory from the expert witness, otherwise the opposing side will file a motion to exclude them or even have the case dismissed. I don't have any problem with the attorney providing guidance and editing things, as long as they aren't interfering with the honest opinion of the expert. There can sometimes be some gray area here.
Good points. Most states that I have practiced in require an affidavit from a physician with specific language before you can file the lawsuit, and if the language is not correct your case could get dismissed.
I work as a nurse legal assistant and 10k is definitely on the higher end. At the rate I bill my hours (which is not the rate I get paid) that’s 2-3 weeks of full time work. To be fair, we review about 10 years of records prior to the claim, and the patient was 81y/o.
Thanks for the insight! I was a bit surprised but I also know that some law firms really depend on legal nurses to do a ton of work, so it's definitely understandable if there are thousands of pages to sort through
You are correct on the CT surg expert though - I would expect a bare minimum $1500 2-hour retainer, but not all experts require one. They got a bargain. I don’t see years of experience listed, so I’m assuming it’s a new-ish surgeon - you don’t need a division chief to tell you where mistakes happened here. On his/her end this probably required review of <100 pages which could be done in under 2 hours given that the incident itself is pretty straightforward.
I AM curious as to how/why the hospital ate the settlement while the surgeon and perfusionist were dismissed. That seems like a good deal all things considered. Is that possibly part of an employer arrangement/contract?
We sometimes agree to dismiss the individual doctors if the hospital agrees to certain stipulations. Also agree that they got a bargain on the cardiac surgeon, although maybe the case settled prior to any depositions or this was in a state with no expert depositions!
"is not a recognized risk of the procedure and would not have occurred but for..."
The phrasing of this sentence is so withing the norm for how people actually talk in the 21st century that it is completely believable that a CT surgeon and a Perfusionist would have used EXACTLY the same phrasing in their opinions.
All kidding aside, it is frankly disgusting that "expert opinions" that were clearly written (at least in part) by the plaintiff's attorney are admissible in court. It would likely be banned by law "but for" the propensity of legislators to also be lawyers.
The way these reports are typically generated is as follows. We send medical records to the expert with a retainer check and ask them to review. They let us know they have reviewed the records and we schedule a telephone consult. During the telephone consult the expert lets us know if they think there was malpractice or not. If yes, we take notes detailing the expert's specific opinions on breaches in the standard of care/causation. We draft their report with the breaches/causation opinions that they disclosed to us on the phone consult, then send to them to review, and if necessary make changes, BEFORE they sign.
My point is, the lawyers aren't just throwing breaches or causation opinions into an expert's report and convincing them to sign off on things they don't believe in.
Thank you for the insight. that for good and scrupulous attorneys and expert witnesses this is the case, and this likely represents the majority of the people involved in these cases. I was implying that there is most likely a subset of individuals that either do not fit into this group or, in the case of expert witnesses, are willing to sign off on documents without a thorough consideration of the assertions therein. I have had the misfortune to run across physicians of this type in my time in the clinical realm (often referred to derisively as "bottom feeders") that will do anything for a buck.
My original comment was also based not just on speculation, but from reading previous "expert" opinions on this frankly amazing blog in which things were asserted to be the "standard of care" which either were not, or in some cases were flat out wrong--even to the point of not being recognizable as potential "former" elements of the standard of care in recent memory.
In some way, there is likely selection bias in the presentation of these cases towards cases with... interesting... expert opinions as the cases where everything went right and were slam-dunk in favor of either the plaintiff or the defendant likely don't make for the most interesting case studies!
I also have found that my eyebrow has gone up in indignation almost equally in frequency when reading opinions from experts for the plaintiff and the defense.
I agree that there are those types of expert witnesses on both sides. I have my qualms with the way medical malpractice litigation has evolved over the years on both sides as well. I only take cases I strongly believe in and do my best to only consult with experts that are credible, but its becoming more and more difficult to find those type of experts because medical malpractice litigation is so polarized. I appreciate you taking the time to respond and agree that this substack is amazing!
Thanks for the insights! I will also add that some states have specific language requirements that are mandatory from the expert witness, otherwise the opposing side will file a motion to exclude them or even have the case dismissed. I don't have any problem with the attorney providing guidance and editing things, as long as they aren't interfering with the honest opinion of the expert. There can sometimes be some gray area here.
Good points. Most states that I have practiced in require an affidavit from a physician with specific language before you can file the lawsuit, and if the language is not correct your case could get dismissed.
Full disclosure... The fact that I practice in Philadelphia may color my opinion!
I work as a nurse legal assistant and 10k is definitely on the higher end. At the rate I bill my hours (which is not the rate I get paid) that’s 2-3 weeks of full time work. To be fair, we review about 10 years of records prior to the claim, and the patient was 81y/o.
Thanks for the insight! I was a bit surprised but I also know that some law firms really depend on legal nurses to do a ton of work, so it's definitely understandable if there are thousands of pages to sort through
You are correct on the CT surg expert though - I would expect a bare minimum $1500 2-hour retainer, but not all experts require one. They got a bargain. I don’t see years of experience listed, so I’m assuming it’s a new-ish surgeon - you don’t need a division chief to tell you where mistakes happened here. On his/her end this probably required review of <100 pages which could be done in under 2 hours given that the incident itself is pretty straightforward.
I AM curious as to how/why the hospital ate the settlement while the surgeon and perfusionist were dismissed. That seems like a good deal all things considered. Is that possibly part of an employer arrangement/contract?
We sometimes agree to dismiss the individual doctors if the hospital agrees to certain stipulations. Also agree that they got a bargain on the cardiac surgeon, although maybe the case settled prior to any depositions or this was in a state with no expert depositions!