Frequently asked questions
I am commonly asked to review certain plaintiff’s cases with recurrent themes or issues that don’t always meet criteria for a clear-cut fall below the standard of expected medical care. While I am not an attorney, I have some experience with cases that actually make it to settlement or trial. Since record reviews are expensive undertakings, you may wish to consider the points below before requesting expert opinion in your case.
Q: I have a case involving shoulder dystocia. This automatically proves that the doctor was negligent, right?
A: Many shoulder dystocias are unpredictable, and brachial plexus injury sometimes occurs in the absence of negligence. If your case involves an unpredictable occurrence of shoulder dystocia, then you must be able to show that the delivering practitioner performed some type of negligent action or procedure during the delivery, and/or that unusual trauma occurred to the mother or baby. I will typically defend a doctor who delivers a baby with a brachial plexus injury if that doctor delivered good prenatal care, experienced an unpredictable shoulder dystocia, and performed appropriate maneuvers to reduce the shoulder dystocia and complete the delivery.
Q: My client is extremely upset at her doctor and his uncaring attitude. Should I pursue this matter?
A: Some cases involve patients who are angry that their doctors weren’t more attentive. Unless these plaintiffs can show that the inattention was negligent to the point of causing preventable medical injury, these are not usually cases that merit serious review.
Q: What is the likelihood that an auto collision caused a miscarriage?
A: It is my opinion that low-speed motor vehicle accidents, such as parking lot accidents or minor fender-benders, virtually never cause miscarriages in first-trimester pregnancies. There is a background miscarriage rate of at least 20% that affects all pregnant women, and the uterus is well protected, deep inside the pelvic bones, until after 12 weeks of pregnancy. A minor accident, unlike events that involve significant blunt trauma to the lower abdomen, will not usually generate the force necessary to disrupt a healthy early pregnancy.
Q: Is it always negligent to injure a nearby organ during an obstetric or gynecologic operation?
A: Injury to the bowel, bladder, or ureter at the time of obstetric or gynecologic surgery does not automatically mean negligence. These types of injuries can occur even in the best of hands. Thus a plaintiff will usually have to demonstrate faulty surgical technique or improper surgical judgment to prevail in many of these cases, unless there are significant additional complicating factors.
Q: Do patients who experience bleeding or infection after surgery or delivery have a rightful cause of action?
A: Infection and bleeding are postoperative complications that can happen in the absence of negligence. A plaintiff who complains of either of these usually will have to show improper surgical technique or lapse in judgment, or delayed recognition or response to obvious clinical signs and symptoms. The simple existence of postoperative infection or bleeding by itself is not sufficient to prove malpractice.
Q: My client needed reoperation to remove a surgical sponge left in her abdomen after her hysterectomy. How should I proceed?
A: If a surgeon leaves a foreign body in a patient, it often connotes negligence on the part of the operating room crew or the surgeon, especially if it is a surgical sponge or an instrument. However, attorneys should be aware that metal clips and staples, as well as nonabsorbable permanent suture material, are commonly used during operative procedures. Their presence on X-ray studies or at reoperation should not trigger suspicion of negligence.
Q: My client is doing some of her work pro per, and wishes to consult with you directly on certain aspects of the case. Will you speak with her directly and consult with her as the case proceeds?
A: I do not speak for all experts, but I personally will work only with attorneys. Clients often have personal, financial, and emotional stakes in their own cases, and may be offended or argumentative if an expert refuses to act as an advocate, rather than as an impartial evaluator of the standard of care. For this reason I do not deal directly with clients.
Q: I have an obvious open-and-shut case. I just want to send a couple of pages of records and name you as my expert. Is that OK?
A: I cannot accept being named as an expert in a case until I have been formally retained and have had a chance to review appropriate documents. When I do accept a matter for review, I will usually need to see the entire record set that applies to the instant case. Similarly, I may need to see all germane deposition transcripts. Supplying anything less increases the possibility that my opinion may change if I am presented with new or additional material at a later date. I believe that it is better to know the bad points in a case as soon as possible, before substantial sums of money are spent and large amounts of emotion and expectation are unnecessarily expended. This applies equally to plaintiff and defense matters.
In a related vein, all attorneys know that expert witnesses are supposed to be impartial. Nonetheless, the occasional attorney will misrepresent information or withhold important data that are deleterious to a case in an effort to move an expert toward the attorney’s point of view. This is a gentle reminder that I can’t take sides and still remain a credible witness.