Author Archive

Know who you are suing!

January 30, 2012

All too often, we get individuals who want to pursue a medical malpractice claim on their own (pro se), but have not thought  through their claim as an attorney would. An attorney would  identify the offending medical providers, determine who among them committed  the alleged negligence, and know his medical  specialty to ensure that you are dealing with comparable standards of care.

To learn more about the preparation required, visit our website  To review a list of attorneys and other resources, visit



March 23, 2010

If you are looking for a diatribe for or against what we have come to know as “tort reform”, you will be disappointed. The problem is too complex. The purpose here is to shed some light.

Let’s clarify the issue. Advocates of “tort reform” are really arguing for lower incidence of medical malpractice awards, smaller dollar awards, and lower medical malpractice insurance premiums for physicians. They also hope to reduce the level of “defensive medicine”, the result of which is higher medical cost in response to the fear of being sued.

According to the National Practitioner Data Bank, the number and dollar value of medical malpractice award payouts has been flat since 1991, and have actually declined since 2001.The figures presented by the National Association of Insurance Commissions back this up. Public Citizens’ Congress Watch in Washington, D.C. reports that medical malpractice award payments declined 13.6% from 2001 through 2004 (the latest data available). Award payments of $1 million or more actually fell 56% from 1991 through 2004. According to a Harvard University study, very few medical errors ever result in legal claims – only one claim per 7.6 injuries ever results in legal action. Of those claims, plaintiffs drop 9 of every 10 that are initiated. Let’s at least admit that a case made solely on the basis of the “exploding incidence” of medical malpractice claims and awards has its problems.

Well, then, what about medical malpractice insurance premiums? Premiums have increased and there is no doubt about it. The question is WHY have premiums increased. There are authorities who have looked at this issue and concluded that medical malpractice insurance premiums rise NOT just because of increased frequency of litigation or jury awards, but to compensate for poor insurance company investment returns. Robert Hunter, Insurance Director for the Consumer Federation of America recently pointed this out. The U.S. Government Accountability Office (formerly the U.S. General Accounting Office) has reported this several times, the most relevant being GAO 03-702. GAO reported that multiple factors, including falling investment income and rising reinsurance costs, have contributed to increases in premium rates. In one interesting comparison, the GAO report showed that the premiums insurers charge physicians in different locales have such huge variability that the discrepancy cannot be explained by claims incidence alone. If it is true that other factors contribute to premium increases, then it follows that preventing or limiting medical malpractice awards may not result in corresponding premium decreases.

Defensive medicine is the hardest to deal with because its impact is difficult to calculate. There is no doubt that there are more medical tests being ordered for fear of medical liability then there would be otherwise. The question is what is the impact. Nobody really knows (GAO 03-836). We do know that medical insurance costs average about 3.2% of average physician revenues. We also know that 5.5% of physicians cause 57.3% of all medical malpractice payouts to patients. Do we approach the problem, as some have suggested, by not interfering with tort claims and instead going after the few transgressors?

Much study still needs to be done, but the end game will not change. As a society, we will have to decide whether we want to prevent or limit the legitimate claims of citizens damaged by medical errors by making it harder to obtain compensation for those errors, or insulate physicians and thus reduce the motivation for defensive medicine in the hope that the cost savings will justify the lost opportunities.


March 18, 2010

The decision about what medical specialist to use in a medical malpractice case is up to the client. Nevertheless, we have all too often discussed cases with individuals and attorneys when they did not know what type of medical specialist they wanted to be involved. Sometimes we get the comment that any medical expert will do. In our view, the notion that any medical expert will do is wrong-headed and possibly even self-defeating.
You need to know who you are suing. You want to have a physician expert in the same medical specialty review the records (there are exceptions, but we won’t get into them here). In this way, you ensure that the medical expert will be able to authoritatively comment on the same standards of care owed by a provider in the same specialty. It does no good to have someone of lesser expertise comment on those standards of care because the opinion will surely be impeached for lack of qualifications. That is fairly obvious. However, the same applies for someone who is overqualified because the offending provider cannot be held to higher standards of care than those owed by someone in his medical specialty. There is abundant case law that backs this assertion.

If you have a medical malpractice case and if you are looking for a medical expert to review and opine on the medical records, ask yourself a few questions that will save you time, effort, and money:
1) Who do I blame for the presumed medical negligence? In other words, whose errors of omission/commission led to the injury?
2) If more than one medical provider is presumed to be at fault, whose care do I principally blame [you may ultimately need more than one medical expert, but if the beginning expert opinion is supportive, then you know you have a case. If not, you will need to reassess the situation]?
3) What is the provider’s medical specialty?

When the action is personal injury, the considerations are different. The issue then becomes one of determining whether the injury in question resulted directly from the accident. The decision concerning the appropriate medical specialty in such cases is driven by the nature of the injuries and the course of treatment that followed the injury.


September 30, 2009

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

July 23, 2009

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


May 18, 2009

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.


March 20, 2009


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.


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.


February 16, 2009

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!

January 28, 2009

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

January 15, 2009

ABC plaintiff v. XYZ College


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.


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.



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.