04/19/2010 David E. Gurvis, DPM
Accountability of Expert Witnesses )Rob Lagman, DPM)
In my state, Indiana, we also have a panel
system. The plaintiff nominates a physician, the
defense does the same, and those two then choose
a third. Frequently one of the members is an
orthopedic surgeon, but not necessarily. The
original thought was whichever side the panel
favored, was supposed to then "see" the light,
and if they voted for the defense podiatrist,
the plaintiff should realize no case existed and
drop the suit and conversely the defense should
settle if the expert panel found against him or
her. Since we are all entitled to a jury trial,
most every case goes on to that ending . The
panel members however, are automatically deemed
as experts for whichever side they found for,
and if we as a panel find for the podiatrist,
and the plaintiff cannot find an opposing
witness ( fat chance on that but it has
happened), then the case, to my understanding
cannot go to trial. We also have a limit on the
amount awarded to the plaintiff which is
constantly being creatively attacked by the
attorneys - so far, unsuccessfully.
I don't know if our panel system keeps many
cases out of court since everyone has the right
to go to trial, but I have to believe it helps
and it is mandatory. Our system was brought into
law here in Indiana by Gov. Bowen, an MD during
the original malpractice crisis back in the
1970's.
As far as expert witnesses go, and this is just
my humble opinion, I would have to judge each
one independently. I have seen "lady of the
night" type experts on both sides. I was on a
panel once wherein the malpractice was blatantly
obvious (that particular podiatrist already had
20 suits against him (in only 15 years of
practice) and no longer has a license and he was
able to get a world renowned podiatrist (take my
word on the world renowned, but I will not
mention names) to give a deposition stating -
line by line, treatment day by treatment day -
that not one thing done was wrong and followed
every standard of care imaginable). Of course,
after having been on 8 panels, I more often see
the opposite from plaintiff's experts.
Short of proving an outright malicious lie by
the expert, I have always figured there was
nothing we could do. But I do believe we can
shun them. Avoid attending their lectures at
seminars if they lecture (that can dry up a good
source of income), no longer associate with them
in the hospital and etc. We should. But not
simply because he or she takes on side or
another without our knowing the facts of each
case. I no longer respect the expert witness I
mentioned above as I have read and reviewed the
case in question and know all the real details.
Not the summary provided in here on line. Not
that he gives a tinker’s damn, but I would avoid
him at all costs and he has lost my respect.
The point is, even though I often see the same
names over and over again in the case summaries
in here, I cannot pass judgment without having
all the details of what really happened. Perhaps
that individual podiatrist has reviewed 10 or 20
cases to the one he accepted and has prevented
some suits in that way with his review of the
case and opinion? Do we know if that podiatrist
has taken on the defense side when appropriate?
How can we know? But if we did know all the
facts, we could indeed shun him or her and just
leave them "out there" but beyond that, there is
nothing that can be done outside of a good
attorney attacking and tearing down that "expert
whore's" testimony in court.
David E. Gurvis, DPM, Avon, IN, deg1@comcast.net
04/15/2010 Allen Mark Jacobs, DPM
Accountability of Expert Witnesses (Richard W. Boone, Sr.)
Once again, the subject of the "expert witness"
in medical negligence cases elicits response
from the PM News readers. I would like to ofer
some potential solutions to the problem other
than those suggested by the highly respected Mr.
Boone.
There is an organization called Medical Justice
( www. Medicaljustice.com ). This organization
tracks expert witnesses, collects data on them
including prior testimony. They provide what
many readers are looking for: conflicting
testimony, facts that may be used to discredited
experts, etc. There is a fee for membership,
which provides aggressive evaluation and
investigation of the expert witness. In
addition, medical justice provides various forms
including consent forms stipulating that in the
event of a "dispute", the patient may only
retain an expert in good standing within
recognized professional organizations. Medical
justice provides quite a bit of financial
support specifically in researching
the "expert." Remember, once exposed, any
material detrimental to the so called expert may
be used by others in malpractice defense.
Another alternative is to take action, and stop
complaining on PM News. The APMA, ACFAS, ABPS,
state boards, hospital bylaws, all claim to have
ethical standards to be maintained for
membership. Put your money where your mouth is
or shut up and accept the situation. Demand a
review of the facts by these organizations.
Demand a review. Prepare a detailed and
accurate, factual document. Press the issue with
these organization. Remember, if you can prevail
in getting the expert questioned, disciplined,
or warned by any of these organization, the
experts usefulness will become severely damaged
as this information will be presented to jury
after jury. The expert will be done.
Finally, I should like to say that Dr.
Markinsons' comments were consistent with my
experience. Medical negligence IS A BUSINESS.
Without you being sued, there is no business for
defense lawyers or for defense experts. In spite
of protestations to the contrary, remember who
signs the checks! Unless you hire your own
lawyer, or seek whatever grievance against the
expert you wish to pursue, you will always be
nothing more than a sacrificial lamb in the
malpractice game. To believe otherwise is naive.
Allen Mark Jacobs, DPM, St. Louis, MO.
allenthepod@sbcglobal.net
04/13/2010 Adam Cirlincione, DPM
Accountability of Expert Witnesses (Bryan Markinson, DPM)
I wanted to respond to Dr. Markinson who I
respect greatly. My post was visceral and based
on the experiences of myself who was a defendant
in a malpractice case and close friends and
colleagues who were also defendants who I have
had discussion with.
So, I take offense to statement "little clue to
the reality of the malpractice litigation
process" ...I suspect this was a visceral
response to my post !!
Firstly....I made no comments regarding the
malpractice information posted on PMNews except
to say that the same doctors names were
plaintiffs witnesses on multiple occasions.
The difference that I think was missed or
ignored is that the doctors who defend us tend
to be the academics, the lecturers , the
teachers, the published...the respected. While
in my opinion the plaintiffs tend to gain their
credibility on the stand from the memberships -
American Podiatric Medical Association and
American College of Foot and Ankle Surgeons.
So, the reason there are the same doctors
defending us is because this is who WE WANT to
defend us. The reason the same doctors are
plaintiffs is because this is who WILL be a
plaintiff. You would find 1000 doctors to defend
(many of the doctors who read PM News would do
it) ...Could you find 1000 to be plaintiffs? Be
truthful with yourself.
I did state that "they typically lose the
case"....and I see from your post that I guess
my visceral feelings on this were correct ...."
defense verdicts outnumber plaintiff verdicts by
3 to 1 ...Am I reading this correctly? I ask
this not knowing .Is this the case for podiatry ?
Dr. Markinson I appreciate that a case can be
won or lost prior to a trial .....but you must
not really think much of my training or my
experience if you say to me "is Dr. Cirlincione
aware......I don't think so."
I ask you ....what do you know about my
knowledge when it comes to the malpractice
system? which you have attacked on multiple
occasions on your post ...and why do you suspect
that everyone reading these posts on PMNews
obtains all of their knowledge of malpractice
litigation from PMNews? Quoting your post
"Where in PM News do you get that information
Nowhere."
We may not all be as informed as you on matters
of litigation, but we are all able to have an
opinion...and many of us have first hand
experience... which in and of itself is
knowledge of the system believe it or not .
Call me sometime and I will tell you my first
hand experience with the system ( Thankfully it
was in my favor --- but many years of losing
sleep because of a frivolous complaint DRIVEN by
a plaintiff "expert" podiatrist ).
Just as a matter of note I would say that I have
received 20 times more positive responses to my
post than I have received negative. So, I will
pose to you a question. If APMA/ ACFAS is a
society driven by it's members. If many of our
feelings are similar on this position should our
societies reflect the feelings many members have?
Next, I have not seen my question answered
regarding transparency. Feel free to answer if
you have knowledge. Are we, as members of a
society, able to see the actions taken by the
societies in regards to ethics complaints made?
Outcomes, specific complaints, etc? What is
available to members?
Lastly, MY SOCIETIES? I am merely a member who
would like answers to questions and concerns I
have.And For your information Dr. Markinson I
respect you greatly you were a teacher I learned
much from but a pitcher or a goalie can WIN or
LOSE a game all by his or herself, just as an
expert witness can do the same. With all of your
knowledge on the malpractice system I would
expect you knew that a player CAN bring down a
team !
Adam Cirlincione, DPM , Glen Cove, NY,
pittpod@gmail.com
04/12/2010 Bryan Markinson, DPM
Accountability of Expert Witnesses (Adam Cirlincione, DPM)
Dr. Cirlincione's post on accountability of
expert witnesses is so lopsided that one can
only conclude that he has little clue as to the
reality of the malpractice litigation process.
Unfortunately, the notions put forth in his post
are visceral only, and in truth, is the typical
way we react as a profession to this whole
issue. I know Adam personally and have the
highest regard for his training and experience.
First of all, any attempt to learn anything from
the information on cases profiled on PM News is
outright inadequate. Dr. Cirlincione actually
states regarding plaintiff's expert witnesses
that "on multiple occasions he notes the same
podiatrists listed as experts." He totally
ignores the fact that with the same frequency,
the same applies to listed defense experts. This
perpetuates the biggest lie about experts in
general, that being that plaintiff's experts are
all lying dogs, and defense experts are not.
That some of these repeat defense experts would
stand up for Joseph Mengele for a fee, does not
come into his, or most of our thinking.
The statement by Dr. Cirlincione "We know very
well that these doctors are paid for their
opinions, and these opinions depend on how much
they are paid and by whom they are paid" doesn't
apply to defense experts? Oh, I guess he thinks
they do it for the pure humanitarian aspect of
being a saintly defense expert, free of critique
merely because he or she is "defending." Believe
me, untruthful or incompetent defense testimony
is just as damaging to us.
He then actually states that "typically, these
(plaintiff's) experts lose the case in
question." I am not sure if Dr. Cirlincione
knows that defense verdicts outnumber plaintiffs
verdicts by at least 3 to 1, but the notion that
it is either expert who wins or loses the case
like a pitcher in baseball or a goalie in hockey
is also unacceptable.
The amount of inputs into the final outcome are
infinite, and cases can be won or lost months or
years before an actual trial at the time of
depositions. In fact, in a recent talk I have
been giving on risk management in podiatric
dermatology, I clearly delineate a situation
where a defendant podiatrist was so unprepared
for his deposition that his testimony could not
be rehabilitated in any way at trial, in a case
where I felt very confident defending prior to
that deposition. This kind of information never
gets into the PM News reports.
I also have two cases on record where as a
defense expert in multiple defendant cases (such
as two DPMs, or a DPM and an internist or
vascular surgeon) where the key to my defense
argument was that the care of the other
defendants were problematic, only to find that
the multiple attorneys for the defendants
decided beforehand that no one expert will
disparage any other defendant. Without debating
the reasons why defense of any one doctor may be
compromised this way, is Dr. Cirlincione aware
that one day, an expert testifying for him may
be handcuffed by this? I don't think so.
Of course, settlements (which are not included
in win/lose statistics), and plaintiff's
verdicts in these instances have as much to do
with dispassionate, crappy defense than anything
a plaintiff's experts had to say. Where in PM
News do you get that information? Nowhere.
Lastly, when it comes to membership in his
societies, accountability, monitoring of
testimony, etc., I could not agree more that
this is vitally important, only from both sides
of the bar, not just the plaintiff's side.
Bryan C. Markinson, DPM, NY, NY,
Bryan.Markinson@mountsinai.org
06/27/2005 Jack Heda, DPM, JD, W. David Herbert DPM, JD
Expert Witnesses
RE: Expert Witnesses
If anyone has evidence of expert false testimony
during podiatric litigation in Florida, I would
be more than happy to voluntarily work with the
FPMA in bringing appropriate actions against
that expert.
Jack Heda, DPM, JD
Weston, FL
JHeda@aol.com
I would like to comment on podiatric malpractice
from my point of view as a podiatrist/attorney.
Approximately 30% of my legal practice is
devoted to medical-legal issues .I have been a
podiatrist since 1976 and an attorney since 1987.
Over the past 18+ years I have reviewed several
hundred medical charts related to the care of
the foot. About 80% of these charts involved
care rendered by podiatrists. The other 20%
involved other types of doctors, primarily
orthopedic surgeons.
In well over 70% of the cases I found that the
standard of care had been met. In another 15 to
20% of the cases I felt that even though
malpractice had occurred, the case should not be
pursued for various reasons. These reasons were
primarily because not enough harm had been
incurred by the patient, the patient would not
make a good legal client, or the issues would be
too difficult for a jury to understand.
W. David Herbert DPM, JD
Monterey, CA
docnurse5@sbcglobal.net
07/22/2004 Jonathan Labovitz, DPM
Expert Witnesses (Barry Mullen, DPM)
RE: Expert Witnesses (Barry Mullen, DPM)
Dr. Mullen had some very interesting points
regarding our current legal system. I agree
that the "loser pay system" would be beneficial
in this instance; however, it is not feasible.
Two of the strongest special interest groups are
the American Bar Association and the insurance
companies. This limits the possibility of tort
reform and of insurance reform. Keep in mind,
many of the legislators are attorneys by trade.
The cost of monitoring expert testimony is
likely to limit our ability to label cases as
frivolous. Since court transcripts are
expensive and then costs would be incurred for
neutral interpretation by a doctor and attorney,
it will be difficult for APMA, AMA, or other
local medical associations to afford this
process. As an alternative, the state is
responsible for protecting the public. The
public includes the doctors. So the Board of
Podiatric Medicine is responsible for evaluating
all complaints filed. If a doctor feels that an
expert is not knowledgeable, gave incorrect
testimony, etc....he/she can file a complaint
with the board that issues licenses to
practice. Keep in mind that your tax dollars
will still be covering this expense and numerous
complaints may weigh down the Medical Boards and
it will increase tax dollar spending (which is
another issue entirely). The concern with this
solution is that every doctor who loses a case
will file a complaint and we will end up with
frivolous cases for the Medical Boards to review.
Lastly, a more economic approach, would be to
alter our school curriculum. We should add a
course on communication. Attorneys, especially
litigators, work to improve their non-verbal
language and verbal communication skills, to
afford them the ability to persuade and
influence. Doctors should have a course in
communication skills and risk management. It
should be taught by someone like a litigator
together. The goal would be to improve our
communication skills, which would prevent saying
the wrong thing, setting up our colleagues, and,
worse case, it will help you talk to your
patient.
Jonathan Labovitz, DPM
Torrance, CA
07/20/2004 Multiple Respondents
Central Registry for Expert Witnesses
RE: Central Registry for Expert Witnesses
From: Multiple Respondents
A recent article in AMA News called for
monitoring of experts by AMA.
I intend to bring this issue to the APMA Board
of Trustees for
discussion. I am curious how APMA members (only)
feel about this issue.
It would be a worthy role for APMA to fulfill
but the procedural,
financial and legal implications might be
overwhelming.
Lloyd S. Smith, DPM
President, American Podiatric Medical Association
lssmith@apma.org
I wholeheartedly agree that some component of
expert witness regulation/monitoring will help
solve some of the malpractice issues. There
seems to be an overabundance of
unqualified "experts" making decent livings
testifying against their colleagues. That said,
malpractice tort reform must start with the
adoption of a "loser pay system", which I
believe exists in every other civilized nation,
except the United States. Unfortunately, with
special interest groups funneling huge sums of
money to greedy, dishonest politicians, this may
prove to be an unadoptable concept for this
country, unless the American public wakes up and
actually does something to curtail this. The
American Bar Association is one of this
country's strongest special interest groups.
The main side-effect fueling arguments against
this issue is how to properly represent the
indigent, who cannot cover court costs in the
event of a defeated frivolous lawsuit, but I
believe some hybrid of this concept would prove
to be the most effective way of eliminating many
frivolous lawsuits.
The largest problems that effect the generation
of malpractice suits comes from within our own
profession. One involves the breakdowns in
communication between doctors and patients which
erodes the doctor patient relationship. The
causes for that are multi-factorial and can be
expounded upon in another post. The second is
the type of communication that occurs between
dissatisfied patients and our peers whom they
seek professional second opinions regarding
their prior, podiatric care. There are tactful
ways in which a physician can hind-sightedly
disagree with prior treatment protocol without
crucifying their colleagues. If physicians would
just understand that one day, the shoe may land
on the other foot when their dissatisfied/angry
patient presents to another physician's office
for a second opinion, they might think twice
about how they respond to and communicate their
ideas about a poor treatment outcome/choice
before putting their foot in their mouths (puns
intended)! I do not mean to imply that one
should condone blatant professional negligence,
because we all know this does exist, and should
therefore be appropriately dealt with.
Barry Mullen, DPM
Hackettstown, NJ
The dictionary meaning of the word frivolous
is "thoughtless" or "playful." In terms of
lawsuits however, one would take it to
mean "baseless" and "without merit." From my
experience, incorrect testimony,
unpreparedness, or even lying by a plaintiff's
expert may or may not have anything to do with a
case being frivolous. The job of the defense
attorney is to discredit the testimony, or
supply experts with a contradictory or clarified
testimony. Keep in mind that defense experts are
also capable of incorrect and false testimony,
as well as unpreparedness. Let us not forget
about attorney unpreparedness and incompetence
as well.
Dr. Beekman is totally correct when he states
that the ability to cull testimony from actual
trial transcripts would keep "experts" and their
attorneys on their toes. I have supported this
many times in this forum. He further states
that "We all know that there are a few loser
podiatrists that make their living acting as
expert witnesses." This is where our position as
a profession loses credibility. We are all
against baseless lawsuits and we all abhor false
and incorrect expert testimony.
However, there are many podiatrists who review
cases regularly for plaintiffs and opine that
there is no deviation from accepted practice in
the overwhelming majority of them. There are
many podiatrists who will mount a defense for
very substandard care and even egregious
physician behavior. Unfortunately, transcript
acquisition is expensive and therefore I cannot
envision any kind of regular monitoring at this
level, unless individual practitioners are
willing to pay these costs and have both
expert's testimony impartially reviewed.
Until we recognize that all that needs be
discredited does not sit at only one side of the
aisle, our own discourse on the subject is
indeed "frivolous." The current system does not
allow any other way.
Bryan C. Markinson, DPM
New York, NY
12/19/2003 Ed Davis, DPM
Expert Witnesses (Bruce Dobbs, DPM)
RE: Expert Witnesses (Bruce Dobbs, DPM)
Dr. Bruce Dobbs made some interesting comments
about defending against expert witnesses who
make statements that are not consistent with
what most consider to be the standard of care.
An expert witness should, in my opinion,
function within the standards of podiatric
medical care. As such, how can an expert witness
make statements inconsistent with accepted
standards without placing himself or herself in
jeopardy? Should not expert witnesses who
testify based on standards inconsistent with
that of the podiatric community not be subject
to discipline by their respective state's
podiatic medical board?
Ed Davis, DPM
Puyallup, WA
eddavisdpm@usa.com
07/10/2003 Carlos I. Montes, Jr., DPM, David Secord, DPM
The Problem With Expert Witnesses (Gary Goykhman, DPM)
RE: The Problem With Expert Witnesses (Gary
Goykhman, DPM)
From: Carlos I. Montes, Jr., DPM, David Secord,
DPM
The Medmal discussion is one dear to my
heart. Imagine a colleague testifying "within a
degree of reasonable medical probability"...
that the bunion you fixed was the "proximate
cause" of your patient tripping as she walked
down the stairs 2 years after she had her bunion
correction, although she had never fallen before
or since. In fact...that bunionectomy was the
wrong procedure. You should have performed a
joint destructive procedure instead of a
metatarsal osteotomy (based solely on the
patient’s age)....despite the fact there were no
arthritic changes radiographically nor
intraoperatively with no significant
osteoporosis. Despite the fact this was a very
active individual. Your colleague emphatically
stated the bunion correction resulted in "an
impaired gait abnormality," which
caused "imbalance and subsequently back pain and
arthritis." This despite the fact the patient
was never seen nor examined by this
defense "expert" who was a thousand miles
away....a prestigious colleague who, with
impressive credentials as a residency director
and associate chairman of the department of
surgery at one of our podiatry colleges....and
when asked about established criteria for bunion
surgeries from Dr. McGlamry's "Comprehensive
Textbook of Foot Surgery" stated "he does not
use those books to teach".....but has made quite
a living as a plaintiff's witness aiding in the
prosecution of his fellow podiatrists. Why...a
tune of $15,000.00 was made for his testimony in
my case. Quite impressive.
I have to tell you my dear colleagues...it was a
pleasure to whip his $#% in court. Yes...after 5
years of delay , sweat, anxiety, despair,
questioning my own abilities....I did have my day
in court. The jury was scratching their heads
wondering why we were there. It took a half hour
to decide I had not committed malpractice. After
the verdict the plaintiff’s family even
apologized to me "assuring" me I had been a good
doctor to their mother. It was a real circus the
entire week that I will never forget....for
without the plaintiff’s expert whom, without his
sworn affidavit I had breached the standard of
care, this case would never have come to
trial.
Carlos I. Montes, Jr., DPM
West Melbourne, FL
I've been tracking the questionable
activities of an orthopod in my city, who has
seen patients of mine for second opinions over
the last 4 years. How's he doing? Let's see:
1. Patient had a post-op infection with I&D done
and bone biopsy taken along with hardware
removal. Massive scarring occurred, resulting in
hallux rigidus. This guys opinion? Osteomyelitis,
even in the face of negative x-ray findings,
negative soft tissue and bone cultures and
negative bone histology.
2. Patient is seen after my evaluation of her
for midfoot pain. X-ray and MRI are somewhat
consistent for a pigmented villonodular
synovitis. His 2nd opinion? Spontaneous arthritis
(whatever that could possibly be).
3. Patient seen with bunion pain (IM=22º,
HAV=25º, large medial eminence). His conclusion?
Surgery unnecessary, with orthotics prescribed to
CORRECT the bunion deformity!
4. Patient seen after a Scarf, McBride and
Aiken. Patient doing well 3 weeks after surgery,
but slips on some soda spilled at the top of the
stairway and breaks the Aiken through the
osteotomy and intra-articularly along the screw
with the screw holding the fracture distracted,
bayoneted and in poor position. His opinion? No
corrective surgery needed, physical therapy will
cure this fracture!
I empathize with your situation. This guy has
never testified against me, but if he ever does,
I plan on bringing up these cases to show his
incompetence in the courtroom. By the way, he
usually does shoulders and hips (thank God he is
good at that), but recently took over all foot
and ankle work at the group he's with (heaven
forbid!).
David Secord, DPM
Corpus Christi, TX
07/09/2003 Multiple Respondents
RE: The Problem With Expert Witnesses (Gary Goykhman, DPM)
RE: The Problem With Expert Witnesses (Gary
Goykhman, DPM)
From: Multiple Respondents
You can always seek out the state's Board of
Medical Examiners or the doc's professional
organization and file a complaint.
Interestingly, I think it was in Fla recently,
where a neurosurgeon was sanctioned for providing
false testimony.
Michael A. Quinn, D.P.M., J.D. (Similar Note by
David Zuckerman, DPM)
Glen Rock, NJ
I truly feel for Dr. Goykham. Most expert
witnesses are indeed educated and articulate, but
there are those who are willing to sell their
souls as Dr. Goykham stated. One thing he failed
to mention is that in this era of tort reform and
malpractice award caps, Podiatry is often left
holding the bag since we are NOT included. There
is a new advertisement here in Nevada from a
legal firm who are now setting their sights on
Podiatrists since the malpractice cap here
doesn't include us. Interestingly enough, if one
were to seek compensation against an MD, the case
would go first to the medical review board to see
if there is justification. Not so with
podiatry.....Just file the suit and collect. Our
board knows about this, and is trying to change
things but who knows if it will happen.
Ira Weiner, DPM
Las Vegas, NV
Dr. Goykhman brings up a point to be reckoned
with. The system is not working at all the way it
should. Case in point - I had a diabetic patient
with an ulcer that was being treated by me, an
internist and a vascular surgeon. The patient
developed an infection which was successfully
treated. In follow up, he left our care and went
to another vascular surgeon who excised his fifth
met head through the ulcer site. Bone biopsy was
negative for osteo at the time. He ultimately did
develop osteo and sued the three of us, not the
doc who induced the osteo with totally
unnecessary surgery. The podiatry "expert" who
testified against me at trial was asked to render
an opinion about what a shift to the left means
on a differential. He gave his expert medical
opinion. He was then asked to render his opinion
about what a shift to the right means. He again
gave his expert medical opinion. Needless to say
we won the case hands down. This profession has
certainly spent many years trying to destroy
itself. Situations like this one should be
handled by the right to counter sue this DPM
whose desire to make a buck dragged me through
the court system and cost me time and money, not
to mention the stress.
Bob Kornfeld, DPM
Lake Success, NY
The problem where medical doctors might bad
mouth a podiatrist is not new. I have seen many
medical mal cases come about when certain
orthopedists with axes to grind against podiatry
looked at x-rays and said to patients that the
podiatrists chose a wrong procedure. Had the
patients been savvy and inquired further they
might have ascertained that the accusing
physicians housed deep emotional prejudices
against all podiatrists. In the late 70's and
early 80's when I began my practice, all it took
was any unfounded accusation from the mouth of
any physician to start the ball rolling for
litigation against any one of us. Because our
insurance companies were so eager to settle cases
against our colleagues no matter how meritless
the cases might have been, we were all sitting
ducks for these types of problems.
Today, in many states, there have been changes
for the better. Most insurance companies do not
have hammer clauses and a case without merit
cannot be settled unless the defendant allows it.
Also a case cannot be brought against a
podiatrist unless another podiatrist evaluates
the case and lends legitimacy to the accusations.
PM News has also gone out of its way to expose
podiatrists who make themselves overly available
as plaintiff’s witnesses. Some of these doctors
have even been prosecuted in their respective
states for false testimony. Because of all of
these factors, many attorneys are realizing that
it is a costly experience to sue a podiatrist
when the case lacks merit. This has helped reduce
unnecessary litigation against us and has reduced
the insurance premiums that all of us have to
pay.
Elliot Udell, DPM
HIcksville, NY
Dr. Goykhman, welcome to reality! First, I'm
surprised that you would even write to complain
that some other doctor has disagreed with your
opinion. Medicine is all about disagreement and
many doctors do not agree with the treatment,
diagnosis and even the cause of many injuries.
That is something you will need to get used to or
you will face early burn out.
Second, if your x-rays clearly show a fracture,
who do you have to prove that to? Attorney's on
both sides of a suit know what's real and what's
not ... they just use the information differently
to zealously represent their client. In your
example, another doctor might have suggested
ORIF - would they be wrong? Could you defend plan
A (conservative care) vs. plan B (ORIF)? Of
course, you could. In most instances there is no
100% foolproof right way to do anything. That's
why they still call our professions "... the
practice of."
Last, when the proverbial dung hit the fan ...
what did yo want to do? Sue the other doctor.
That had me laughing so hard I almost broke my
keyboard. Ah, welcome to reality.
Sloan Gordon, DPM
Houston, TX
07/08/2003 Gary Goykhman, DPM
The Problem With Expert Witnesses
RE: The Problem With Expert Witnesses
From: Gary Goykhman, DPM
I just cannot believe this system of medicine
we practice in. Maybe it is because I am only 2
years out of residency. However, it seems to me
that the country is going down the drain with
these lawyers and doctors who are willing to sell
their soul and other doctor's careers over
$4,000. I was seeing a patient who had both
lateral malleolar fracture and also avulsion
fracture of the naviculus. After months of
casting and even bone stimulator, her lateral
malleolus healed but naviculus continued to
bother her and went to non-union. After resolving
of symptoms with P.T. rest....I excised the non-
union and patient is doing better.
However, like most work compensation cases go
the patient is suing. I tried during the
deposition to stay as neutral as I can because I
really do not like lawyers for either side.
However, today I get a phone call from
plaintiff's lawyer stating the defense obtained
opinion from an MD stating there is no fracture
or non-union and I did unnecessary surgery.
After the initial heart attack I drove to my
office and even a 5 year old can see the
irregular edges of the fractured naviculus and
also the displacement...basically if the MD
cannot see this fracture he should have his
license removed because he cannot make a
diagnosis.
Also in my anger I took the x-rays to other
physicians to make sure I am not hallucinating ;
they concur with me. Therefore, the MD is either
an incompetent physician or a liar.
I cannot believe in this system where physicians
are being sued over nothing, we do not protect
each other and will even lie. There are not many
lawyers who will sue each other, but we in the
medical field will do so for 1 week's pay.
Furthermore, in this malpractice crisis we should
be banding together as if there is no doctor to
give expert opinion, there would be no law suits.
I think the way to stop all of these nonsense
legalities is to sue the expert opinion giver for
slander, libel, what ever you want. Let them be
in fear just like we are the regular physicians
who only care to see patients and treat them as
best as we can. I guess I am just naive and went
into podiatry to treat patients. However, I wish
to God that one day I get this MD's patient in my
office - as they say what goes around comes
around.
Gary Goykhman, DPM
Miami Institute for Joint Reconstruction
08/30/2002 Richard B. Willner, DPM, W. David Herbert DPM, JD
Expert Witnesses ( W. David Hebert, DPM, JD, Ira M. Baum, DPM )
RE: Expert Witnesses ( W. David Hebert, DPM, JD,
Ira M. Baum, DPM )
From: Richard B. Willner, DPM, W. David Herbert
DPM, JD
I have followed this thread regarding Dave
Herbert with amusement. What Dr Ira M. Baum
and others do not know is the fact that Dave is
a "behind the scenes" resource in the defense of
podiatrists in malpractice suits and in state
board cases. He is an active part of The Center
for Peer Review Justice's fanatic work towards
achieving justice for podiatrists against all
odds.
The podiatrists we help wish to keep our
assistance confidential so they will not speak up.
But, I will. And, I have. Thank you, Dave
Herbert.
Richard B Willner, DPM , President
The Center For Peer Review Justice, Inc.
New Orleans, LA and Washington, DC
Info@PeerReview.org
--------------------------
I would like to respond to Dr. Baum's concerns. I
appreciate the opportunity. I only find
malpractice in about one in 5 or less of the
cases I review. Recently, I have reviewed more
cases against M.D.'s than D.P.M.'s. In fact I am
involved in more cases against orthopods than
podiatrists.
Also, in the last few years, I have only acted as
an expert against insurance companies on behalf
of docs. For eg. if your insurance company does
not act in good faith in representing you, you
may have a "bad faith" case against them.
W. David Herbert DPM, JD
Cody, WY
wdherbert@tritel.net
08/29/2002 Ira M. Baum, D.P.M
Expert Witnesses (W. David Herbert, D.P.M./JD)
RE: Expert Witnesses (W. David Herbert, D.P.M./JD)
From: Ira M. Baum, D.P.M
I am not certain what is the appropriate way to
address W. David Herbert, D.P.M./JD, is it Dr.
Herbert or Mr. Herbert? Regardless of the proper
title, it appears that his rhetoric in his email
about leveling the playing field for patients,
sounds similar the banner waved by most personal
injury attorneys, that they are the peoples
advocate, and without them the individuals rights
would be trampled. Ho Hum. What ever allows you
to sleep at night. No need to justify yourself
to anyone.
I don't necessarily disagree with the position of
a watchdog, whether it be a podiatric expert
witness or an attorney, so long as the individual
has the knowledge and understanding to
differentiate between negligence and nuisance,
and remains true to his purpose and not to his
purse. If W. David Herbert, D.P.M./JD represents
himself ethically in the eyes of the podiatric
profession, then I say bravo to him. I would
expect that he perceives himself as ethical to
himself. One litmus test might be if a
podiatrist is wrongly accused of malpractice, and
that podiatrist asked for his help, that W. David
Herbert, D.P.M./JD would be willing to offer his
advice and consultation to that individual as
well. What say you W. David Herbert, D.P.M/JD?
Ira M. Baum, D.P.M.
Miami, FL
ibaum@cofs.net
08/28/2002 W. David Herbert DPM, JD
Expert Witnesses (Dr. Gelling)
RE: Expert Witnesses (Dr. Gelling)
From: W. David Herbert DPM,JD
I would first like to thank the editor for
allowing me to respond to certain podiatrists and
let me speak my mind!
I believe that by handling cases against docs, I
can help level the "playing field" for patients.
I also agree completely with Dr. Gelling. What he
is describing is a "fully informed jury." Of
course, the jury must also be allowed to determine
the standard of care.
W. David Herbert DPM,JD
Cody, WY
wdherbert@tritel.net
08/23/2002 Steve Ostendorf, DPM, John A. Scheland, D.P.M.
Expert Witnesses (Richard Boone, Esq.)
RE: Expert Witnesses (Richard Boone, Esq.)
From: Steve Ostendorf, DPM, John A. Scheland,
D.P.M.
I refer all readers to www.medicaljustice.com.
This group provides for the subscribed doctors,
who when sued, a service that sends the
plaintiff’s attorney a letter stating that they
represent the doctor, and if this is found to a
frivolous suit OR that plaintiff loses, that the
plaintiff attorney will be sued. This seems to
be gaining support among the MD's in Florida. My
orthopedic surgeon told me about it and
subscribes to it.
Steve Ostendorf, DPM
Fort Myers, FL
DSOSTEN@aol.com
---------------
Working in the medical profession wasteland's
capital, Pennsylvania, I can speak with some
authority on this subject and have made some
observations. War has been declared on
practitioners and it is seen everyday in
advertisements prodding anyone who has ever seen
a doctor to explore the idea of a lawsuit. It
is typical of the medical profession to identify
this problem and turn on itself by increasing
the "bar" for doctors for what should and
shouldn't be done. Are we now revoking licenses
for merely giving an opinion no matter how
misguided? If the legal profession did that to
themselves, there would only be a dozen or so
lawyers left to practice in this country (if
that many, Dr. Block not included).
I agree only superficially with Mr. Boone that
the way to fight the onslaught of malpractice
litigation is to add yet more lawyers to the
mix. No conflict has ever been won on defense
alone. The mentality of malpractice lawyers can
be reflected in the cliche "if you throw enough
(you know what) something will stick", If one
improves the legal defense of medical
practitioners; the number and amount of
malpractice payouts will decrease initially.
But as long as no recourse exists for bringing
frivolous lawsuits, they will only increase in
number and frequency making the environment too
hostile for anyone to practice.
We doctors as a group should push to hold the
malpractice lawyers ( and their clients)
responsible for increasing costs of practice
resultant from frivolous lawsuits. We medical
professionals should position ourselves make an
example of these lampreys by relieving them of
substantial amounts of money and to have the
worst of them disbarred. The formula is simple,
action equals consequence.
John A. Scheland, D.P.M.
Scranton, PA
limblengthener@yahoo.com
08/21/2002 Richard W. Boone, Sr., W. David Herbert DPM/JD
Expert Witnesses (Elliot Udell, DPM)
RE: Expert Witnesses (Elliot Udell, DPM)
From: Richard W. Boone, Sr., W. David Herbert
DPM/JD
Dr. Udell's suggestion that " our legal system
boils down to ... which side has the best
attorney" may have a grain of truth in it.
That thought has been often stated in legal
writing. If Dr. Udell is correct, however, it
suggests that the answer to the dilemma being
discussed in these posts is not sanctions
against "rogue" physician-experts but, rather,
more and better podiatry defense attorneys.
Maybe physicians should inquire who a a
professional liability insurance carrier uses as
defense counsel in the physician's home
jurisdiction and what that attorney or firm's
track record is in handling podiatric medical
malpractice cases before the physician purchases
his or her malpractice insurance. That should
be fairly easy to find out in any given locality
with a few phone calls to professional
colleagues.
If a physician is already "locked into" a given
carrier and doesn't like what he or she learns
about that carrier's attorneys in his or her
location, there's no reason why the physician
cannot or should not become a little "pro-
active" when a suit is threatened and demand
that the carrier retain capable counsel who is
both experienced in defending podiatric
physicians and has achieved success in the
defense of podiatric medical malpractice actions.
In any event, logic compels the conclusion that
the more experienced podiatry defense counsel
will be in a better position to counteract
the "rogue" expert physician when, and if, the
need arises.
Richard W. Boone, Sr.
Health Care Attorney
Fairfax, VA
RWBoone@aol.com
-----------------
I agree that the jury/expert system exposes a
problem. One way to handle surgery outcomes
would be to provide "outcome" insurance to a
patient. Much as the workmen's comp. system,
this would be the patient's sole legal remedy
unless it could be shown that a defendant acted
intentionally or grossly negligently. Of course,
I also agree with FIJA , so I suppose my
practical ideas will not be taken seriously.
W. David Herbert DPM/JD
Cody,WY
wdherbert@tritel.net
08/21/2002 Richard W. Boone, Sr., W. David Herbert DPM/JD
Expert Witnesses (Elliot Udell, DPM)
RE: Expert Witnesses (Elliot Udell, DPM)
From: Richard W. Boone, Sr., W. David Herbert
DPM/JD
Dr. Udell's suggestion that " our legal system
boils down to ... which side has the best
attorney" may have a grain of truth in it.
That thought has been often stated in legal
writing. If Dr. Udell is correct, however, it
suggests that the answer to the dilemma being
discussed in these posts is not sanctions
against "rogue" physician-experts but, rather,
more and better podiatry defense attorneys.
Maybe physicians should inquire who a a
professional liability insurance carrier uses as
defense counsel in the physician's home
jurisdiction and what that attorney or firm's
track record is in handling podiatric medical
malpractice cases before the physician purchases
his or her malpractice insurance. That should
be fairly easy to find out in any given locality
with a few phone calls to professional
colleagues.
If a physician is already "locked into" a given
carrier and doesn't like what he or she learns
about that carrier's attorneys in his or her
location, there's no reason why the physician
cannot or should not become a little "pro-
active" when a suit is threatened and demand
that the carrier retain capable counsel who is
both experienced in defending podiatric
physicians and has achieved success in the
defense of podiatric medical malpractice actions.
In any event, logic compels the conclusion that
the more experienced podiatry defense counsel
will be in a better position to counteract
the "rogue" expert physician when, and if, the
need arises.
Richard W. Boone, Sr.
Health Care Attorney
Fairfax, VA
RWBoone@aol.com
-----------------
I agree that the jury/expert system exposes a
problem. One way to handle surgery outcomes
would be to provide "outcome" insurance to a
patient. Much as the workmen's comp. system,
this would be the patient's sole legal remedy
unless it could be shown that a defendant acted
intentionally or grossly negligently. Of course,
I also agree with FIJA , so I suppose my
practical ideas will not be taken seriously.
W. David Herbert DPM/JD
Cody,WY
wdherbert@tritel.net
08/02/2002 Barry Mullen, DPM, Sloan Gordon, DPM,W. David Herbert DPM/JD
Expert Witnesses (Richard Boone, Esq.)
RE: Expert Witnesses (Richard Boone, Esq.)
From: Barry Mullen, DPM, Sloan Gordon, DPM,W.
David Herbert DPM/JD
Improving the quality of experts who testify,
though helpful, is just a tip of a huge ice berg
and is an after the fact Band-Aid approach to
the malpractice dilemma. Meaningful malpractice
tort reform is an answer & it starts with the
plaintiff's malpractice attorneys. How about...
our legal system making the plaintiff & their
unscrupulous malpractice attorney cover all
court costs when they lose frivolous nuisance
cases that never should have made it to trial in
the first place.
Plaintiff's attorneys know what it takes to
defend a malpractice case (usually $20K or
more), so I am sure there are a number of
ambulance (doctor) chasers out there making a
decent living by looking to persuade clients to
enter a complaint even when there is no or
minimal cause because they can often squeeze a
small nuisance settlement for less than the cost
of defending. How about... establishing peer
review groups in the various specialties,
similar to what was recently reported for the
neurosurgeons and having our legal system
empowering these groups to
establish guidelines and sanctions against
expert witnesses who falsify or stretch their
testimony to suit a nuisance case w/out cause?
Just some additional thoughts
Barry Mullen, DPM
Hackettstown, NJ
YAZY630@aol.com
-----------------
If the authors will use the search engine they
will find we discussed this months ago in the
PICA/SAFECO debates. SAFECO and now AIG allows
the doctor to choose their defense counsel,
unlike some other companies. That makes all the
difference in the world regarding a quality
defense, rather than a settlement, especially in
frivolous cases.
Regarding experts, there are good and bad, which
was discussed as well. Some Capitalism drives
the machine, but not necessarily. There are
good and bad on both sides, but honesty,
compassion, a good physician and an effective
communicator make the best experts. Just as in
obtaining good health care, by choosing a
quality physician, a good expert is a key factor
in problem solving. Knocking the experts (on
either side) does not solve the problem.
Perhaps we should try the UK method: the loser
pays.
Sloan Gordon, DPM
Houston, TX
sgordondoc@aol.com
-------------------
I understand that a large amount of the money
spent on defense goes to the defense attorneys.
I believe a lot of irrelevant discovery is done
by the defense.
I have had occasion to defend a couple of docs
who did not have insurance. There are very
simple tactics I have used to get rid of a case.
Of course my legal fee came to less than the
cost of the surgery that was done!
W. David Herbert DPM/JD
Cody,Wy
wdherbert@tritel.net
03/02/2002 David Secord, DPM
Expert Witnesses (Dr. Kelsey)
RE: Expert Witnesses (Dr. Kelsey)
From: David Secord, DPM
Although the percentage of bottom-feeders is
far, far higher in the legal profession, we
appear to have are own. There is a rather well-
known pod in the northern part of my state who
was willing to testify that there was clear
malpractice in using injectible Benadryl™ for
local anaesthesia in a patient of mine. He did
this unabashedly and although it didn't go to
trial, I would have relished the opportunity to
point out how little time this guy spent paying
attention in pharmacology. So would the 4 people
my attorney easily found (mostly
anaesthesiologists and dermatologists) who use
injectible Benadryl™ every day on their patients
with no complication what so ever. That this guy
would have so easily been available to testify
to something so amazingly lame is surprising in
itself. That he would have been so readily
willing to admit his stupidity in an open court
of law is truly a wonder. My attorney assures me
that this guy makes himself available to anyone
looking for a 'hired gun'. He is one of the
people who came up with the EPF thing. I'll say
no more, except that is just one more reason for
me not to do EPF procedures on my patients.
David Secord, DPM
Associate Clinical Professor of Medicine
Christus-Spohn Hospital System-Memorial
Corpus Christi, TX
David5603@POL.net
02/27/2002 Bob Kelsey, DPM
Expert Witnesses
RE: Expert Witnesses
From: Bob Kelsey, DPM
I would like the readers of this list-serv to
weigh in on this question. How do all of you
feel about certain "hired guns" within our
profession who are more than willing to "second
guess" testify as a supposed "expert witness"
against another DPM. I know of a situation in
my area of a
lawsuit filed by a non-compliant patient, who
through her lawyer has found two DPM, XYZ, PDQ's
to second-guess the surgeon. I can't imagine
making my living by traveling around and back
stabbing a colleague without knowing the
details. Just my opinion and I welcome yours.
Bob Kelsey, DPM
Dubuque, IA
blkelsey@juno.com
02/27/2002 Bob Kelsey, DPM
Expert Witnesses
RE: Expert Witnesses
From: Bob Kelsey, DPM
I would like the readers of this list-serv to
weigh in on this question. How do all of you
feel about certain "hired guns" within our
profession who are more than willing to "second
guess" testify as a supposed "expert witness"
against another DPM. I know of a situation in
my area of a
lawsuit filed by a non-compliant patient, who
through her lawyer has found two DPM, XYZ, PDQ's
to second-guess the surgeon. I can't imagine
making my living by traveling around and back
stabbing a colleague without knowing the
details. Just my opinion and I welcome yours.
Bob Kelsey, DPM
Dubuque, IA
blkelsey@juno.com
