How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies
http://www.100md.com
《新英格兰医药杂志》
The little good I have done is that which cost me the greatest trouble and has encountered the most numerous obstacles.
— William Hunter (1718–1783)
At first glance, The Medical Malpractice Myth will invoke either relief or fury, depending on the reader's belief or prior distressing experience with the subject. The toxic cauldron of actionable causes — a delay or failure in the diagnosis of a disease and its subsequent treatment, a mishap in surgery or anesthesia, the misuse of a medical device or a prescription drug, failure to obtain informed consent, liability for an athlete's sudden death, or a violation in the standard of care — can bring on months or years of agonizing, tenacious discomfort and chronic dyspepsia for the physician. As medical insurers progressively increase their premiums and large compensatory awards loom, physicians face the peril of financial ruin and threats to their reputation and equanimity.
Some practitioners may view the variable statutes of limitations with apprehension while considering flight to safer institutional havens; others may abandon their chosen careers, perhaps contemplating dairy farming, developing orchid stem cells, cabinetmaking, or even reversing the agony by obtaining jurisprudence degrees.
Tom Baker, a professor of law and an authority on insurance, has written a remarkably challenging book. He targets the medical-malpractice "myth" — that there are too many lawsuits — as an insurance crisis, rather than an overabundance of tort cases, since studies show that as many as 6 patients out of every 100 are injured as a result of medical mismanagement. Baker plants accountability directly on our professional malaise and on the skewed policies of legislators in response to the public outcry for exorbitant compensation. Tort-system costs in 2003 exceeded $246 billion, with a projected cost of $1,000 per U.S. citizen for 2006 (for those who are counting).
This litigation explosion continues to be ignited by the greed of lawyers and their clients, whereas the roulette game is often rigged so that honest people (both patients and doctors) lose. Baker states that fear, misinformation, and "short-circuiting" of critical thinking contribute to the malpractice myth. Despite the rhetoric, a recent California-based study (subsequently buried) showed that the tens of thousands of patients with medical injuries exceeded the number of people hurt in automobile and workplace accidents.
Baker claims that most patients do not sue, and the costs are thus borne by the victims themselves. He insists that "defensive medicine" is not a heavy cost burden and that the spikes in insurance premiums are brought on by the competitive behavior of the insurance industry. Shooting the messengers (the lawyers and the injured) is not the cure for the problem. He cites the Institute of Medicine's report To Err Is Human: Building a Safer Health System (Washington, D.C.: National Academies Press, 2000), which showed that more than 100,000 U.S. citizens die from medical mistakes every year. Baker insists that the litigation explosion, with its secondary chaos, is not factual and that we need new evidence-based medical-liability reform, since the current legislative reforms only perpetuate the confusion.
A book that is centered on controversy is often worth reading and pondering. Perhaps we should lick our wounds, cull out the consistent offenders, and provide impeccable care for every patient while anticipating our regrets each day.
In How to Become a Dangerous Expert Witness, Babitsky and Mangraviti wade deeply into litigious waters to offer strategies for success when the avoidance of malpractice fails. Some expert witnesses deserve the recognizable "expert" title, but becoming a "dangerous" expert witness requires special skills that we all can learn — be it defending our colleagues, our institutions, or our patients. Babitsky and Mangraviti are knowledgeable attorneys with decades of malpractice experience, including cases involving adverse events or bad outcomes. Their trial experience has been supplemented by their popular national seminars, which have widened their perspective on physicians and lawyers. Careful point-by-point analyses of the demeanor of an expert, avoiding the potential treachery of a misspoken word, and knowing the inherent forensic needs in testimony — each is crucial to the expert's influence on a successful presentation to a jury.
Even though embellished television series that deal with investigative scenarios are now commonplace, further acquaintance with unfamiliar terminology is helpful. (For example, lawyer jargon stating that "it may be published" actually means "it may be passed on to the jury.") Concisely outlined steps for becoming (or battling) a "dangerous expert" serve to inform and guide readers through deposition treacheries and into preparations for a successful courtroom appearance.
The book offers a litany of practical advice on courtroom behavior. We are advised to bill premium pretrial fees that reflect confidence in the expressed unbiased opinion and to avoid lateral glances during videotaping in order to negate an impression of furtive coaching. These tips help prevent miscues and the taunting deflation of an expert's credibility. Readers are urged to recognize that the deposition transcript is given under oath and may be a lockdown for future trial comments. Any personal notes taken during deposition may be made admissible later and may become a vulnerable focus of challenge.
We are enlightened by the need to know, liberally illustrated by case details, with distinctive specialty applications and ongoing familiarity with the tort system, especially the Daubert Rule. This important legal challenge permits the judge to be gatekeeper, thus eliminating unreliable science while monitoring the admissibility of the expert's testimony as to unfounded conclusions. "Bulletproofing" physicians with these encapsulated approaches to the machinations of counsel often leads to the "gotcha" exhilaration of the expert while vasomotor instability overcomes the opponent counsel.
The authors provide many keys to avoiding a plethora of tenacious problems. Examples include dismissing invitations to conduct depositions in one's own office (opponents may glance at photos, degrees, evidence of side interests, and traffic flow to obtain future ammunition). Even disarming assurances — "just a few minutes more" — can terminate many hours later when fatigue and unwariness open more vulnerable channels for the opposing counsel. The dangerous expert is always mindful of avoiding sarcasm and evasiveness and should tread the fine line of not being an advocate for either side. One should recall that approximately 90 percent of cases are settled before or during a trial on the basis of the strength of expert testimony.
This book is a tour de force that serves to enlighten each of us with its intensive collaborative learning exposure. Students, house officers, and practitioners all will profit from this realistic survey of our current medical climate. Although this environment is fraught with diverse potential problems, they become amenable to the strategies and techniques of a knowledgeable and "dangerous" expert witness, from which we all may learn to be more medically and legally effective.
Martin E. Gordon, M.D.
Yale University School of Medicine
New Haven, CT 06520
martin.gordon@yale.edu(By Steven Babitsky and Ja)
— William Hunter (1718–1783)
At first glance, The Medical Malpractice Myth will invoke either relief or fury, depending on the reader's belief or prior distressing experience with the subject. The toxic cauldron of actionable causes — a delay or failure in the diagnosis of a disease and its subsequent treatment, a mishap in surgery or anesthesia, the misuse of a medical device or a prescription drug, failure to obtain informed consent, liability for an athlete's sudden death, or a violation in the standard of care — can bring on months or years of agonizing, tenacious discomfort and chronic dyspepsia for the physician. As medical insurers progressively increase their premiums and large compensatory awards loom, physicians face the peril of financial ruin and threats to their reputation and equanimity.
Some practitioners may view the variable statutes of limitations with apprehension while considering flight to safer institutional havens; others may abandon their chosen careers, perhaps contemplating dairy farming, developing orchid stem cells, cabinetmaking, or even reversing the agony by obtaining jurisprudence degrees.
Tom Baker, a professor of law and an authority on insurance, has written a remarkably challenging book. He targets the medical-malpractice "myth" — that there are too many lawsuits — as an insurance crisis, rather than an overabundance of tort cases, since studies show that as many as 6 patients out of every 100 are injured as a result of medical mismanagement. Baker plants accountability directly on our professional malaise and on the skewed policies of legislators in response to the public outcry for exorbitant compensation. Tort-system costs in 2003 exceeded $246 billion, with a projected cost of $1,000 per U.S. citizen for 2006 (for those who are counting).
This litigation explosion continues to be ignited by the greed of lawyers and their clients, whereas the roulette game is often rigged so that honest people (both patients and doctors) lose. Baker states that fear, misinformation, and "short-circuiting" of critical thinking contribute to the malpractice myth. Despite the rhetoric, a recent California-based study (subsequently buried) showed that the tens of thousands of patients with medical injuries exceeded the number of people hurt in automobile and workplace accidents.
Baker claims that most patients do not sue, and the costs are thus borne by the victims themselves. He insists that "defensive medicine" is not a heavy cost burden and that the spikes in insurance premiums are brought on by the competitive behavior of the insurance industry. Shooting the messengers (the lawyers and the injured) is not the cure for the problem. He cites the Institute of Medicine's report To Err Is Human: Building a Safer Health System (Washington, D.C.: National Academies Press, 2000), which showed that more than 100,000 U.S. citizens die from medical mistakes every year. Baker insists that the litigation explosion, with its secondary chaos, is not factual and that we need new evidence-based medical-liability reform, since the current legislative reforms only perpetuate the confusion.
A book that is centered on controversy is often worth reading and pondering. Perhaps we should lick our wounds, cull out the consistent offenders, and provide impeccable care for every patient while anticipating our regrets each day.
In How to Become a Dangerous Expert Witness, Babitsky and Mangraviti wade deeply into litigious waters to offer strategies for success when the avoidance of malpractice fails. Some expert witnesses deserve the recognizable "expert" title, but becoming a "dangerous" expert witness requires special skills that we all can learn — be it defending our colleagues, our institutions, or our patients. Babitsky and Mangraviti are knowledgeable attorneys with decades of malpractice experience, including cases involving adverse events or bad outcomes. Their trial experience has been supplemented by their popular national seminars, which have widened their perspective on physicians and lawyers. Careful point-by-point analyses of the demeanor of an expert, avoiding the potential treachery of a misspoken word, and knowing the inherent forensic needs in testimony — each is crucial to the expert's influence on a successful presentation to a jury.
Even though embellished television series that deal with investigative scenarios are now commonplace, further acquaintance with unfamiliar terminology is helpful. (For example, lawyer jargon stating that "it may be published" actually means "it may be passed on to the jury.") Concisely outlined steps for becoming (or battling) a "dangerous expert" serve to inform and guide readers through deposition treacheries and into preparations for a successful courtroom appearance.
The book offers a litany of practical advice on courtroom behavior. We are advised to bill premium pretrial fees that reflect confidence in the expressed unbiased opinion and to avoid lateral glances during videotaping in order to negate an impression of furtive coaching. These tips help prevent miscues and the taunting deflation of an expert's credibility. Readers are urged to recognize that the deposition transcript is given under oath and may be a lockdown for future trial comments. Any personal notes taken during deposition may be made admissible later and may become a vulnerable focus of challenge.
We are enlightened by the need to know, liberally illustrated by case details, with distinctive specialty applications and ongoing familiarity with the tort system, especially the Daubert Rule. This important legal challenge permits the judge to be gatekeeper, thus eliminating unreliable science while monitoring the admissibility of the expert's testimony as to unfounded conclusions. "Bulletproofing" physicians with these encapsulated approaches to the machinations of counsel often leads to the "gotcha" exhilaration of the expert while vasomotor instability overcomes the opponent counsel.
The authors provide many keys to avoiding a plethora of tenacious problems. Examples include dismissing invitations to conduct depositions in one's own office (opponents may glance at photos, degrees, evidence of side interests, and traffic flow to obtain future ammunition). Even disarming assurances — "just a few minutes more" — can terminate many hours later when fatigue and unwariness open more vulnerable channels for the opposing counsel. The dangerous expert is always mindful of avoiding sarcasm and evasiveness and should tread the fine line of not being an advocate for either side. One should recall that approximately 90 percent of cases are settled before or during a trial on the basis of the strength of expert testimony.
This book is a tour de force that serves to enlighten each of us with its intensive collaborative learning exposure. Students, house officers, and practitioners all will profit from this realistic survey of our current medical climate. Although this environment is fraught with diverse potential problems, they become amenable to the strategies and techniques of a knowledgeable and "dangerous" expert witness, from which we all may learn to be more medically and legally effective.
Martin E. Gordon, M.D.
Yale University School of Medicine
New Haven, CT 06520
martin.gordon@yale.edu(By Steven Babitsky and Ja)