The House is considering a bill that puts the federal government in between patients and their doctors. It’s a bill that gives unprecedented power to the federal government. It could result in the federal government preempting State Constitutions. And many have argued that the federal government overreach in this bill even violates the United States Constitution.

No, I’m not talking about Obamacare. I’m talking about the latest “tort reform” bill that was passed out of the House today, which is bad for patients, bad for families, could overturn State Constitutional provisions, and violates two amendments in the Bill of Rights.

The Seventh Amendment preserves our right to jury trials. The Tenth Amendment allows the states to run their own court systems. Under H.R. 5, these rights are turned on their heads. If you are injured, who would you rather have determining your fate? A jury of your peers who have heard every detail of the case; or 435 Washington politicians who have no knowledge of you, your situation, or your injury?

This bill even includes hard caps on damages for those who have been injured, or the families of those who have been killed. We’re not talking about “frivolous lawsuits” here — we’re talking about cases where it’s already been determined that an injury did occur. The people most harmed by caps like this are seniors, children, and stay-at-home Moms — individuals or families who have been injured and who are suffering.

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Is the expert’s testimony reliable?

Daubert factors: Can it or has it been tested? Peer reviewed? Error
rate? Standards and controls? Generally accepted in the scientific
community? And, other factors.

Exclusion of expert’s testimony: Summary judgment (higher burden -
moving party must establish no genuine issue of material fact). Daubert
challenges (lower burden, non-moving party has burden of establishing
proper foundation for admission by preponderance of evidence).

Selection of Experts.

Word of mouth: client; authors of articles in the field; college
professors; other lawyers.

The internet.

Expert witness services.

Assessing Expert: check out his background. Prior testimony and
articles.

Interview the expert. Check out how they are going to do. Always eyeball
the expert.

Preparation.

Provide expert with all materials of any value in the case. Visit the
scene (expert now becomes a fact expert). Show him the product. Show
him other side’s expert deps and reports.

Determine bases for expert’s opinions. Theme of case. Cross-examine.

Direct Examination.

Organize the order of the testimony. Foundation re cv. Purpose of
testimony and issues addressed and not addressed. Sources.
Conclusions. Bases. Restatement of conclusions.

Qualify Expert: full explanation of cv. Specific qualifications for
case. Material reviewed. Stmt of conclusions. PPT, blowups, animations,
drawings, etc.

Questions on Direct: go thru qualifications; go thru specific exposure
to issues in case; illustration of procedure or technique involved; use
of models; use of drawings; why done?; if varied from procedure at
issue, then why?; explain causation factors.

Example: Reconstruction expert – establish facts of accident;
examination of scene; meaning of facts and evidence from scene; skid
marks equal speed and why?; damage equals speed and why?; calculations
performed before jury on board or chart.

Warts: expose them on direct; such as exorbitant fees.

 I.  Qualifications

You must look into the expert qualifications when deciding whether or not he/she is qualified.  You cannot solely rely on the expert’s CV when determining this.

First, you must look into the expert’s educational background.  You need to identify professors and instructors that the expert had, the nature of the expert’s course work, texts the expert used, degrees and honors the expert received, and the expert’s class rank.

Second, look into the expert’s experience and employment history.  Identify prior employers, supervisors, the nature of the expert’s duties, and how the expert’s work experiences relate to the subject of the expert’s testimony.

Next, identify the expert’s professional affiliations and recognition.  Find out what organizations and societies of which the expert is a member, licenses and certifications the expert has received or attempted to received, committees upon which the expert has served, and honors and awards the expert has received.

Finally, you need to look at the expert’s writing and research he or she has conducted.  Look at the expert’s published articles, comments on publications and book reviews, lectures presented, and research projects conducted in whole or in part.

II.  MEDICAL OR SCIENTIFIC SUBJECT MATTER

When you are hiring an expert to testify on a medical or scientific matter, you must test the general knowledge of the expert by asking questions in the abstract about the medical or scientific subject matter related to the issues of the lawsuit.  This interrogation serves two functions.  It gives you insight into the depth of the expert’s knowledge, but more importantly,  an expert who is evasive and non responsive in answering a question directed specifically to the circumstances of the lawsuit will often give a candid  answer to a medical question when the question is posed in the abstract.  Engaging in a discussion of medicine with the expert prior to inquiring about the case at hand, may result in concessions and important cross-examination  material for trial.

III. INTEREST OR BIAS

Look into the expert’s business or social relationships and determine if he or she has a relationship with the employing party, counsel, or employer.  Determine the number of prior contacts wit the employing party, the nature of any economic or other benefits the expert has derived from his or her association with the employing party.

Also, look at the witnesses’ relationship loyalty to the industry, occupation or profession of the employing party.  You must determine what organization both the expert and employing party are affiliated, meetings that both expert and employing party have attended, and whether the witness or his firm has ever been personally involved in similar litigation to determine this.

Next, you must examine the expert’s earning related to his or her testimony.  You must look into the sources of those earnings, whether there is a pattern for one side, one carrier, one law firm, or one defendant, percent of income derived from expert witness fees versus perfect of income derived from employment, and compensation the witness received or expects to receive in the current lawsuit.

IV. SEARCH FOR DOCUMENTS FOR IMPEACHMENT

The next step in hiring an expert witness is you must search for document that may be used for impeachment.  Look at research papers and reports prepared by the expert on matters similar to the subject of the lawsuit, other depositions given by the expert on similar matter, correspondence, notes, time records and reports prepared by the expert during preparation and formulation of his or her opinions, and search for article the expert may deem authoritative.  When examining the articles, you need to look at what texts the expert keeps in his or her library or office, whether the expert has consulted or reviewed any texts or literature in the preparation of his opinion, and whether the expert is familiar with the leading writers on the subjects of his opinion.

V. ENGAGEMENT; ASSOCIATION WITH CASE

Next, you need to determine the expert’s engagement and association with the current case.  Look at when the witness was employed or consulted, who located and employed the expert, what was the stated purpose of the witnesses’ engagement and what instructions were given to the expert, what oral and documentary information was furnished to the witness, each task performed by the expert while developing his or her opinion, any work which may be performed by the expert after the deposition and the purpose of the future work.

VI. THE EXPERT’S OPINION

When you are getting the expert’s opinion, first ask the expert to state his opinion and the basis for the opinion.  The opinions should be elicit opinions from the expert on specific issues in the lawsuit that are within the scope of his expertise.  Then, ask the expert to assume facts most favorable to your client’s position, assuming these facts to be true, ask the expert if this would alter his or her presently held opinion.

VII. REVIEW IN DETAIL MEDICAL RECORDS AND FILM PREPARED OR MADE AVAILABLE

TO THE WITNESS

When the expert has reviewed medical records or other materials, request the expert to describe what is depicted in each photograph and stat what significant the photograph has to the formulation of his or her opinion.  Also, request the expert to review his notes and interpret anything that is illegible, symbols and abbreviations in notes, and to state the significance of omitted information and entries.

VIII. ELICIT AN ENDORSEMENT OF YOUR EXPERT FROM THE OPPONENT’S EXPERT

Finally, figure out if the expert for the opposing party personally knows your expert.  Ask opposing party’s expert if your expert is well-respected in their profession or discipline, and if opposing party’s expert himself respects your expert.

Full Press Release

For Immediate Release

Anna Hubbard, Publications Director
Arkansas  Bar Association

David H. Williams of The Law Office of David H. Williams has been appointed to the Editorial Board of the Arkansas Bar Association by 2011-2012 President Tom D. Womack of Jonesboro. The appointment becomes effective during the Association’s 2011 Annual Meeting in June.

The Arkansas Bar Association is a voluntary,  statewide Association with more than 5,000 attorney members. The Association and its members participate in a variety of programs and services for the legal profession and society. Among the purposes of the Association are advancing the administration of  justice in Arkansas and fostering high ideals of integrity, learning and public service among its members. The Arkansas Bar Association was founded in 1898.

“This report highlights a singular opportunity for both improving the overall quality of care and reducing healthcare costs in this country,” says Jim Toole, FSA, CERA, MAAA and managing director of MBA Actuaries, Inc. “Of the $19.5 billion in total costs, approximately $17 billion was the result of providing inpatient, outpatient and prescription drug services to individuals who were affected by medical errors. While this cost is staggering, it also highlights the need to reduce errors and improve quality and efficiency in American healthcare.”

Medical errors are a significant source of lost healthcare funds every year. For example, the study found that $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion was lost from increased death rates among individuals who experienced medical errors. According to a recent SOA survey, which identified ways to bend the national healthcare cost curve, 87 percent of actuaries believe that reducing medical errors is an effective way to control healthcare cost trends for the commercial population, and 88 percent believe this to be true for the Medicare population.

“We used a conservative methodology and still found 1.5 million measureable medical errors occurred in 2008,” says Jonathan Shreve, FSA, MAAA, consulting actuary for Milliman and co-author of the report. “This number includes only the errors that we could identify through claims data, so the total economic impact of medical errors is in fact greater than what we have reported.”

Key findings from the study include:

• There were 6.3 million measureable medical injuries in the U.S. in 2008; of the 6.3 million injuries, the SOA and Milliman estimate that 1.5 million were associated with a medical error.
• The average total cost per error was approximately $13,000.
• In an inpatient setting, seven percent of admissions are estimated to result in some type of medical injury.
• The measurable medical errors resulted in more than 2,500 avoidable deaths and more than 10 million excess days missed from work due to short-term disability.

“In the past, the insurance industry had low visibility in its involvement in quality-improving initiatives,” says Toole. “Now is the time for the industry to assume an active role by helping healthcare systems implement an actuarial approach, which can more systematically identify potential causes of medical errors than alternative approaches.”

The study also identifies the 10 medical errors that are most costly to the U.S. economy each year. Approximately 55 percent of the total error costs were the result of five common errors:

• Pressure ulcers
• Postoperative infections
• Mechanical complications of devices, implants, or grafts
• Postlaminectomy syndrome
• Hemorrhages complicating a procedure