An ethical conundrum
dpriver
involving an obstetrical birth injury. What I found was that there was
clearly a violation of the SOC on the part of the obstetrician, but
almost certainly that violation did not cause the injury. My question:
is it ethical for me to agree to testify to the fact that the OB's
actions were substandard even though the requirement for proximate
cause was not met. I find it to be a conundrum since I am troubled by
the lack of proximate cause. A colleague, however, tells me that there
is nothing wrong in simply stating that the SOC was violated and
leaving it at that. I am inclined to accept that posture since it
strikes me that any qualified defense attorney would surely ask me if
I felt the SOC violation contributed to the injury, and I would have
to say it did not. On the other hand, should we ever to agree to be a
witness when we feel that the 3 required elements (injury, SOC
violation, proximate cause) are not met? What do you all think. BTW,
on another subject: as the "co-owner" of this site (with Neil), I get
occasional requests to join the group. As we were once burned by
someone who just wanted to advertise services with us, I have taken to
asking applicants to provide some background info about themselves,
including why they want to belong. So far, not one has responded. Do
you approve of this sort of screening? I have 3 pending requests now.
David
Mayer, Dan
I for one want to give you my confidence to screen people using whatever technique you feel is reasonable. You have my full support for that.
About the other question, I frequently find myself in the position of having a strong feeling about SOC but not being as sure of proximate cause and I will then ask the attorney to provide another expert for that part of the case. If I am confident that the standard of care was not met but am equally confident that there is no proximate cause, I will tell the attorney that and let them deal with it. This happens quite often, I would estimate that about 25% of all cases that I am sent fall into this category. When I discuss the case with the attorney, I make it clear that I feel that proximate cause has not been met and let them deal with it. Most of the time they either drop the case or don't hire me (and I cannot usually determine which of these occurred). In the very few cases where they want to continue with me as their expert, I'll tell them quite clearly that the best I can do to help them is to allow another expert to be the proximate cause expert. This does get me off the hook, but there is still the ethical window of once I have said that, do I now have an obligation to tell this to the other side. Obviously this works in both plaintiff and defense expert reviews.
Now that I have written this, I'm not sure it really helped to clarify the issue. It allows me to sleep at night, but am I really being the most ethical expert. I'd love to hear other views.
Best wishes,
Dan
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Arnold Cohen
This comes up frequently in Ob. Charting is not good, fetal heart rate strips are missing but the case doesn't involve anything that has to do with fetal heart rate, discrepancies in the chart that are not related to the injury etc.
I find that MANY plaintiff witnesses write their report and include all of these "extraneous" things that have nothing to do with the injury to set up a scenario that the plaintiff's lawyer uses that paints the defendant as "careless" or negligent in areas that have no baring on the injury but since there was an injury, he/she must have been negligent in that.
If you take a case in and your report report a deviation from standard of care but it has no baring on the injury and state that in the report, I would say that is appropriate but I would bet that the plaintiff's lawyer would not use you as a witness.
Arnie
Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands
Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993
coh...@einstein.edu
>>> "Mayer, Dan" <May...@mail.amc.edu> 3/22/2010 11:35 AM >>>
Hi all,
Best wishes,
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Judge Thomas
In response to your e-mail of March 22, 2010, I do not think that
there is a problem with your testifying to standard of care in the
situation you described. I think that the plaintiff’s attorney makes
a great mistake in calling you on that issue and then having you
respond that you do not believe that the breach of the standard of
care was the cause of any injury to the plaintiff. I would also want
to know, before testifying, whether he has a causation expert. If he
does, why does that expert not testify to the standard of care?
On the issue of additions to the group, I have recommended Stephanie
Domitrovich, who is a trial judge in Eerie, Pennsylvania, for
inclusion to the group. She would make an excellent addition, and she
is the incoming President of the National Conference of State Trial
Judges, a division of the Judicial Division of the American Bar
Association.
Best regards,
Neil