Jury Instruction
Judge Thomas
expert testimony, but I wanted to get your reaction. On last Thursday
I took a verdict in a two week medical malpractice trial involving the
treatment of Hepatitis C. The issue in this 2001 treatment case was
whether Amantadine was the prescribed medicine or whether Interferon
should have been prescribed. The initial treating doctor prescribed
Amantadine and indicated that he had discussed with his patient the
use of Interferon, although that discussion is not documented in his
notes. His notes also showed that he prescribed Amantadine six days
before he saw the patient and indicated that he had never prescribed
Interferon, just Amantadine, for his patients in Chattanooga at that
time. He also claimed that because the patient was a social drinker
(per the history given) he was not a candidate for Interferon. His
notes did not indicate that the subject of consumption of alcohol was
discussed with the patient. His expert testified that Amantadine was
an alternative drug at the time of treatment (2001-2002), and under my
jury instructions that a doctor may prescribe one of two medications
as long as one of them was accepted, the jury returned a defense
verdict under a claim of medical negligence and lack of informed
consent. My charge on alternative prescription is as follows:
When there is more than one accepted method of diagnosis or treatment
and no one of them is used exclusively and uniformly by all physicians
of good standing, a physician is not negligent for selecting an
accepted method of diagnosis or treatment that later turns out to be
unsuccessful. This is true even if the method is one not favored by
certain other physicians.
My question is does this jury instruction accurately state the status
of standard of care within the medical community? Any thoughts would
be appreciated, since I am looking at the possibility of modifying
that jury instruction.
Gary Helmbrecht
don't know whether both treatments were equivalent at the time but the
concept is correct. Just because the course he chose to follow didn't work,
if both treatments are considered equivalent, then the doctor can't be
faulted for choosing the treatment he did.
Gary D. Helmbrecht, M.D.
Prenatal Diagnosis Center
600 Peter Jefferson Pkwy, Suite 190
Charlottesville, VA 22911
434-220-8620
Thoughts to ponder:
"It is incumbent on every generation to pay its own debts as it goes.
A principle which if acted on would save one-half the wars of the world."
"To compel a man to subsidize with his taxes the propagation
of ideas which he disbelieves and abhors is sinful and tyrannical."
Thomas Jefferson
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dpriver
instructions you gave were entirely appropriate. Certainly, it is not
reasonable to hold someone guilty of violating standards of care when
he simply utilized an alternative treatment which was acceptable and
in use by others at the time. Although you say that this doesn't apply
to the expert witness issue, I submit that it does. It would be, in my
view, inappropriate for the plaintiff's expert to give testimony that
the use of this alternative drug was below the standard of care when
he knew, or should have known, that this was not case. This is just
the sort of dishonest testimony that we must find a way to hold
accountable.
DP
Mayberg, Helen S
nothing more to add.
Helen
--------------------------------------------------
Helen S. Mayberg, MD
Professor, Psychiatry and Neurology
Emory University School of Medicine
Department of Psychiatry
101 Woodruff Circle
WMRB, Suite 4313
Atlanta GA 30322
phone: (404) 727-6740
fax: (404) 727-6743
email: hma...@emory.edu
-----Original Message-----
From: fellowship-for-accura...@googlegroups.com [mailto:fellowship-for-accura...@googlegroups.com] On Behalf Of dpriver
Sent: Tuesday, March 02, 2010 2:46 PM
To: Fellowship for Accurate Courtroom Testimony (FACT)
Subject: Re: Jury Instruction
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lbamdjd
me to be entirely accurate and to be reflective of case law of which I
am aware. And it is a sad commentary that physicians who are
testifying as medical experts are either unaware of the applicable
standard of care when there are perfectly acceptable alternatives, or
willing to lie in their inappropriate advocacy for the side that hired
them. I would call such testimony unethical. Louise B. Andrew MD
JD FACEP
Judge Thomas
I am appalled but not surprised at the tactics described in the
article attached to your e-mail. In some parts of the country, the
litigation process has degenerated into what can be best described as
a "bar room brawl," although I would not want to demean the old
fashioned bar room brawls. Although much has been made of the fees
earned by plaintiff's attorneys in this litigation (as well as
others), I would like to see the total, undisclosed amount spent by
tobacco companies in these cases.
Neil
> > > that jury instruction.- Hide quoted text -
>
> - Show quoted text -
Arnold Cohen
The expert witness Doctor is the problem!. Based on recent actions and cases , it seems that societies who have tried to "sanction" unethical testimony are at risk for reversal and restraint of trade allegations and costs associated with the actions. This is most disturbing.
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
>>> Judge Thomas <ne...@hamiltontn.gov> 3/16/2010 10:09 AM >>>
Louise, et al.,
Neil
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Mayer, Dan
I thought that there were some precedents for which professional societies were given the right to sanction physician experts who had given 'unethical' testimony. I know that the neurosurgeons were one and thought that ob was one that was particularly active in this process. Of course most societies only allow experts to be 'charged' if the complaint is brought by a member of the organization. By its nature, this process is weighted in favor of the defense, since they are likely to be members and want to complain, while if the plaintiff expert is told about false testimony, they are not likely to have heard it themselves and would be more reluctant to make the complaint, and the attorney or plaintiff them self has no standing to bring the complaint.
Dan
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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> 3/17/2010 4:41 PM >>>