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Welcome to the Medical Opinions Associates blog.  We provide medical expert witness services world-wide to attorneys, insurers, and pro se individuals in medical malpractice and personal injury cases.  We’ll keep you posted about important happenings in the world of medical expert review services.  You can find more information at our company website.

AWARD NOMINATION!!!!!!!!!!!

Medical Opinions Associates has received a nomination from Connecticut’s attorneys and law firms as one of the “BEST” providers of legal support services.

$1.5 Million Judgment for Plaintiff – Medical Opinions Associates Medical Expert

Medical Opinions Associates announces a $1.5 million judgment for the plaintiff in a recent medical malpractice trial concluded in Canada for which the company arranged   medical expert witness testimony. The award included general non-pecuniary damages, past and future earnings losses, loss of housekeeping capacity, special damages and costs.
In a recent Canadian medical malpractice case, the defendant family doctor was ordered to pay a former patient for failing to diagnose mouth cancer over a nine-month period. The plaintiff, a pipefitter, had complained of a sore mouth during five visits to the doctor between July 1999 and April 2000. The court found that the physician was negligent in failing to do a proper examination and in failing to refer to a specialist for investigation and diagnosis. The cancer could have been treated with minor surgery but progressed to the point where “commando” surgery on the patient’s tongue, jaw and chest was required to cure the cancer. The sixty-two year old plaintiff was awarded damages and court costs for his extensive injuries in a Supreme Court of Newfoundland and Labrador, Trial Division decision released in early July.
The defendant had argued that cancer patients should expect a lower quality of care from doctors in Newfoundland than exists elsewhere in North America. The court rejected the argument. The defendant breached the standard of care expected of him and his breach caused the plaintiff damages. The plaintiff was not found contributorily negligent

STATUTES OF LIMITATION AND DISCOVERY

In earlier times, life was simpler, and tort law was as well. When plaintiffs suffered an injury from negligence, plaintiff’s awareness was pretty much immediate, thus commencing the ticking of the statute of limitations clock.

With scientific advancements in medicine, relationships between medical providers and patients became more complicated, and often, more remote. In such instances, plaintiff was often not immediately aware of injury caused by negligence.

In all states, there are statutes of limitation that establish time limits for bringing legal actions arising out of alleged negligence by medical providers. While it is clear that plaintiffs often needed some time before manifestation of injuries became apparent, the potential defendants could not be expected to endure indefinte exposure to litigation. The law perceived it unfair to permit the plaintiff to purposely let time pass before bringing action against the unsuspecting defendant.

This raises the obvious question — when does a cause of action arise and begin the time clock to tick? There is considerable case law on this subject and it is too much to go into in this space. Suffice to say that any defendant should be advised of potential liability within enough time to permit the mounting of an adequate defense. This prevents plaintiffs from “sitting on” his or her evidence while waiting for the defendant’s evidence to deteriorate to the point of disadvantage. For the plaintiff, it means that he or she is not penalized for failing to bring a cause of action before the plaintiff knows or should know about its genesis.

It is important that attorneys not wait until the last minute when they are facing a statute of limitations to begin looking for a medical expert for their case. Medical Opinions Associates has had to decline involvement in cases because attorneys left insufficient time to engage the most appropriate expert. This is totally unfair to the plaintiff and may even lead to action being brought for legal malpractice.

OTOLARYNGOLOGY CASE REVIEW

IN A NUTSHELL

This resident of China contacted Medical Opinions Associates to obtain a medical opinion regarding his alleged tinnitus being caused by “violent and errant” ear syringing.  His attempt was to draw a parallel between loud sound and direct spurts of water  having similar effects on the ear drum, and causing tinnitus in his case.

MEDICAL OPINION

The Board-certified Otolaryngologist (ENT) who reviewed the medical records pointed out that there are no governing standards of care with respect to ear flushing and that ears are flushed for various reasons. Generally, ears are flushed with warm water since cold water will sometimes cause dizziness. However, depending on the purpose for flushing, sometimes dizziness is intentionally induced.

He concluded that in this case,  the noise trauma from ear flushing more likely than not caused the onset of tinnitus. However, proving that tinnitus is present is problemmatic as is the severity of the condition.  He notes that if an audiogram were conducted and unilateral hearing loss was observed, then there would be concrete evidence of damage to the ear. Other than by audiogram, there would be no reliable method to determine the extent of injury.

No further information is available regarding the outcome of the legal action.

WRONGFUL DEATH IN MEDICAL MALPRACTICE

In general, medical malpractice that results in the death of the plaintiff may give rise to a wrongful death action against a medical provider.  Since legal issues are never simple, there are exceptions, limits, and other ameliorating factors that must be considered.

Previously, in common law, the death of a plaintiff due to defendant’s negligence extinguished the plaintiff’s tort action with the absurd reasoning that he had lost his right to recover by virtue of his departure from life.  This led to the reality of it being cheaper to kill the defendant than to injure him!

Fortunately, wiser heads prevailed as the law evolved and states began to pass survival statutes to modify the common law rule.  Most states now have wrongful death statutes which allow a certain group of individuals (usually the decedent’s spouse and children, and sometimes parents if there are no spouse and children), to recover for the loss sustained by virtue of decedent’s death.  Often, it is the decedent’s executor or administrator who brings the action, but the proceeds go directly to the beneficiaries, with distribution determined by the court.  The elements of damages in a wrongful death action are generally similar to those allowed in actions by a spouse or parent for injuries NOT leading to death.  Thus, beneficiaries can recover for loss of economic support that would have been received had the death not occurred.

On the defense side, defendants may assert pretty much any defense that could have been asserted had the plaintiff survived. Therefore, the decedent’s contributory negligence (assuming the applicability of such defense in the jurisdiction), and other mitigating factors may bar an action for wrongful death by the survivors.

If Any Medical Expert Will Do, You Are In The Wrong Place!

Medical Opinions Associates does not look for just any medical expert who is willing to review cases and write opinion letters. This simply does not add sufficient value. The advantage of having been around for thirty years, provided you have used your time wisely,  is that you have drawn conclusions about what attorneys and plaintiffs look for in a medical expert and what will afford the strongest credibility profile for your clients.

All Medical Opinions Associates medical experts are Board-certified in their respective specialties.  Physicians do not have to be Board-certified, or even Board-eligible to practice medicine. Formal recognition of special medical skill and knowledge usually requires a residency of three to six years.  When the residency is successfully completed, the physician becomes Board-eligible, meaning that he may now sit for the oral and written examinations for certification. Some physicians who become Board-eligible never become Board-certified. This is either because they are unable to pass the certification examinations or choose for whatever reason not to seek certification.

Medical Opinions Associates requires Board-certification of all medical reviewers.  Why?  Think about it.  It is always reassuring to know that your medical expert has been credentialed by the national organization in charge of setting the requirements for medical practice in that specialty. The courts often have more comfort with such a medical expert

Medical Opinions Associates also insists that all medical experts be in active clinical practice in their specialty.  Our clients expect that when they proceed with litigation against someone who has performed/not performed a medical procedure, they will have a medical expert on their side who has actually performed that procedure and can comment authoritatively on the appropriate standards of care for that procedure.

The other factors Medical Opinions Associates considers are less obvious, but important. We look for strong academic affiliations and we look for articulate presentation, both orally and in writing.  Now here is where we get somewhat controversial.  At the risk of being accused of snobbery, we do look for medical experts who are the products of prestigious undergraduate and medical schools. We do this because experience has taught us that it appeals to attorneys and individuals who need medical experts. THEY feel it gives them additional clout, and since they know the courts better than we do, who are we to argue?  Does that mean that only prestigious medical schools can produce high quality medical experts? Of course not.  For Medical Opinions Associates, It simply means that knowing what we know, when two Neurosurgeons, for example, send us their Curriculum Vitae and we only need one additional expert in that specialty at the time, we might consider where they attended medical school as a factor in our decision-making.

So sue us!!

 

 

Pulmonology Medical Review

ABC plaintiff v. XYZ College

IN A NUTSHELL:

The Boston attorney represented the defendant college in an employee termination dispute in which the employee, having been terminated due to excessive absenteeism, brings an action against the school in essence claiming that she and her children suffered from serious chronic health conditions and should have been granted leave to care for her children under the Family and Medical Leave Act.

MEDICAL OPINION

The reviewing medical expert in Pulmonology concluded that there was no evidence of a serious chronic health condition for either the employee or her children. 

There were repeated absences from her work for reasons stated as depression, stress, and asthmatic bronchitis.  There were medical visits in which she reported episodes of cough and sinus congestion. However, there was nothing in the medical record to suggest a diagnosis of a more serious lung condition, nor was there evidence of any hospitalizations for such conditions.  The medical expert noted her on-going smoking habit which continued during this time despite the urging of medical providers to stop.  The only other objective evidence in the medical record were chest radiographs, all of which were read as normal. 

Both children had also been seen by their pediatrician and although both had evidenced some respiratory problems, there was nothing beyond routine acute viral illnesses.  That is, there was no objective evidence of a serious chronic health condition.

The case was settled prior to trial.

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Author’s note: This is the first in a series of actual cases that will be presented on this blog for the information of interested readers. Obviously, we will mask identifying information for reasons of privacy.  Also, readers should know that most of our cases involve providing medical opinions requested by plaintiff or plaintiff’s counsel. The medical expert here is rendering an opinion at the request of defendant’s counsel.

Why Complete Medical Record?

Why do we ask for the complete medical record?

1.      Your case will rise or fall based on the medical records you submit. Why take the chance that an omission may result in the medical expert concluding that no medical negligence has occurred?  

2.      Even if medical negligence is still indicated, if you send an incomplete medical record, you run the risk that the medical expert will conclude that the case is weaker than it really is.

3.      Our medical experts have demanding clinical obligations and although this makes them most desirable as expert witnesses, they cannot be expected to re-review the original file each time supplemental records are submitted.

4.      We charge a reasonable flat fee thereby assuming the risk should more time than estimated be required by the medical expert to reach a conclusion and write an opinion letter.  We do everything possible to avoid asking for additional funds to complete the work. 

It is the responsibility of counsel for the plaintiff or defendant to be sure that they have obtained and submitted all medical records that bear on an evaluation of the care rendered the patient.  Hospital records usually consist of the following: emergency room records or admission chart, operative reports, progress notes, nurse’s notes, physicians’ orders, consultants’ reports, social workers’ notes, lab reports, x-rays and other films, and discharge summary or autopsy report.  Physicians’ office records usually consist of physical examination records, lab reports, consultation notes, and prescriptions.