Sunday, December 23, 2007

Beyond Daubert to Reality

Daubert web site.

Let's stick to a standard of care testimony. The expert may properly cite studies. These are authored by academics, most often. Clinicians spread advances by word of mouth, and they get accepted or rejected within weeks. Strong remedies will become self-evident at the gut level. Weak or ineffective remedies will fail to impress and get dropped.

If the expert proposes some standard of care, e.g. heart decelerations this many times require C-Sections, should we settle for academic studies? Shouldn't we demand the expert provide his own records on the management of similarly situated patients? If the expert can only provide 3 such records, does he qualify as an expert? Can one be expert after 3 repetitions of decision making? If he can provide a dozen such records, are they the totality of the records of similar patients, and not cherry picked records agreeing with testimony? One should demand all the records of the expert, and sample them. If a record is found that contradicts the testimony, a mistrial should be called, and the legal costs of both sides should be obtained from the lying expert's personal assets.

And, yes, experts should feel intimidated. With the absurd arrogance to dictate practices to the doctors of the entire state at the point of a gun, they should take the consequences of their lying prostitution to the land pirate.


If opposing experts testify in good faith, then a scientific controversy arises. The court has no competence to resolve it. Only additional data, confirmed by others may resolve a scientific controversy.

Whenever two legitimate experts testify, the case requires summary dismissal, as beyond the purview of the court. Failure to do so violates the procedural due process right to a fair hearing of the civil defendant.


Throckmorton said...

I had an opportunity to be at the national meeting of my surgical specialty where a well know academic surgeon was giving a presentation. During the presentation he gave the results of a new surgical procedure which he claimed as a standard of care. He himself is often an expert witness. After he gave his presentation in which he listed how many of the patients were cured, a doctor in the audience rasied his hand. When called, the doctor said "just because they dont come back to you doesn't mean they got better. I am a surgeon in your city and am taking care of your patients after they did not get better, in fact they are worse". That in a nutshell is the problem with academic medicine.

I agree with you that the best question you can ask an "expert medical witness" is how many of these cases have you perfomed and how many recently? Another great question is "by what metrics do you track your results and what long term follow up with these cases have you had?"

Who do you feel is the better expert? The cardiothorasic surgeon at a University Hospital who does 2 cases a week or the surgeon at the main heart hospital in the community who does 4 a day.

Supremacy Claus said...

Dr. T: The patients may have run away. Funny. Thank you for the surgical perspective, where a genius does not do his own follow up. Defense counsel should question the expert sharply and mercilessly about this type of bad faith, and add your question to disqualifying questions at all expert depositions.

The sole recourse against the expert is to request judge sanctions against the expert, during the case. That is the sole recourse that does not violate Supreme Court holding.

The defendant is an expert, too. He has to tell the defense attorney where the plaintiff expert can be second guessed. The defendant should read every word the plaintiff expert has written, including, resume, articles, prior testimony, and now, medical records of similar procedures.

If any lie or act of bad faith is detected, demand sanctions against the plaintiff expert, to the maximum. An example is the declaration of a mistrial, and double all legal and court costs from the personal assets of the plaintiff expert. Another is the filing of criminal perjury charges by the judge with the local district attorney.

Do you think that even the demand and the possibility of such sanctions would slow down the misleader?