Tactics Never Tried in Medical Malpractice Defense

1) If opposing experts testify in good faith (sincerely) about the standard of professional due care, a scientific controversy exists. The resolution of a scientific controversy is outside the subject matter jurisdiction of the court.1 Only additional scientifically valid data may resolve a scientific controversy. It is not within the court’s ability to obtain scientific evidence nor to resolve a scientific controversy. Under the Frye doctrine2 used by Pennsylvania courts, the standard must be generally accepted. Under the Daubert doctrine3, used in federal court, the testimony must have adequate methodology, and other indicia of reliability. By definition, opposite opinions violate Daubert standards.

The court may must dismiss the lawsuit if 1) the experts disagree over the standard of due care; 2) agree about the standard, but whether the doctor’s treatment met it; 3) agree about the standard, that the doctor failed to meet it, but disagree over whether the deviation from standards caused the injury or merely preceded it. The jury may judge a claim where opposing experts agree about the standard of care, that if the doctor’s treatment deviated from it, it would have caused the injury, but disagree about the material facts of the treatment (if it happened, when it happened). The jury has the ability to determine what happened, then using the agreement of experts over material opinions about the standard, the hypothetical causation, but disagreement about the facts of treatment.

The court may also accept a claim the standard of care and of causation is within the knowledge of the jury, such as wrong site surgery, or that has no defense expert.

If one of the opposing experts is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.”

Notes:

1. Sancho v. U.S. Department of Energy. F.Supp.2d, 2008 WL 4370009 (D. Hawai’i) (Lack of subject matter jurisdiction in a claim that turning on a particle accelerator could create a black hole swallowing the earth). At: http://eejlaw. com/c/Sancho_ v_DOE.pdf . May be raised at any point of case. May be raised by the court itself. Court has ability to answer legal questions not scientific ones. Its decsions are at the point of a gun, and may distort clinical practice if an unscientific opinion prevails. The jury has no ability to judge the science, especially after all with any knowledge have been excluded in voir dire. The jury will favor the more personally likable expert, or apply one of may cognitive biases. These results of lack of subject matter jurisdiction violate the procedural due process right of the civil defendant to a fair hearing.

2. Frye Decision at http://www.dauberto ntheweb.com/ frye_opinion. htm. “...the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Opposite testimony on the standard of care implies lack of “general acceptance.” The experts are there to help the jury apply the standard of care to the facts. If they disagree, they are not helping but confusing the jury.

3. Daubert Decision at http://supct. law.cornell. edu/supct/ html/92-102. ZS.html. “Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.”

2) The plaintiff expert should produce a minimum of 5 personal charts, from within 1 year of the damage to the plaintiff, treating a condition similar to that of the plaintiff. If these 5 personal charts do not confirm the expert's management is the same as that in the report, then the testimony is not in good faith. If the expert cannot produce 5 charts of a case similar to that of the plaintiff, his testimony should be disqualified as an expert. If the expert is impeached or disqualified, a mistrial should be called, and all legal and court costs should be assessed to the personal assets of the misleading expert.

3) Outcome bias, and all other cognitive biases should be ruled out by the expert certifying the merit of the claim. If these biases are found at trial, a mistrial should be declared, and all legal costs should be assessed to the personal assets of the expert that signed the certificate of merit.

4) This measure may be going on now, but not enough. The entire list of the plaintiff experts written and testimonial output should be read word for word. Every item that contradicts a point in the report or deposition transcript should be listed. These contradictions impeach the credibility of the expert and should serve to have the judge disqualify the expert. Again, a mistrial should get declared and all legal costs should be assessed to the personal assets of the lying expert.

5) Data Mining by IMS and equivalent companies. One may get a national count or a regional count of prescriptions, with patient characteristics for about $5000. If hundreds or thousands of doctors have given a drug to thousands or millions of patients, even off label, that is the single best definition of the standard of care. If the plaintiff expert states, the use of this medication is not within the standard of care, that is an opinion. It is impossible to perjure oneself about an opinion. The latter may be impeached by inconsistent statements. However, in the presence of data from prescription databases showing many doctors prescribing the same as the defendant, then the plaintiff expert has contradicted a fact. Defense counsel should be asked to call for a mistrial, and to assess all legal costs to the assets of the plaintiff expert. It is permissible for the plaintiff expert to say, many doctors prescribe the same way as the defendant, but I disagree with that practice. That assertion is not a lie, and is an opinion. The opinion is immunized by the Free Speech Clause and by a Supreme Court decision. The assertion of a false fact is not. The appellate courts have upheld state laws banning data mining. These decisions will likely get appealed.

Defense lawyers employed by insurance companies will always refuse to try these defenses. The defendant is urged to hire a personal lawyer who specializes in legal malpractice to thoroughly bully and terrorize the insurance company defense attorney. These defenses will deter future false testimony by experts, and drastically cut into the need for malpractice insurance and for malpractice defense attorneys.

Juries

Lie detector machines have some usefulness and validation. Yet, their results are excluded from testimony. The idea that a group of annoyed strangers can detect the truth by using their gut feelings or can settle disputes in advanced technical fields is a psychotic delusion of the lawyer. The lawyer has excluded any with knowledge, making matters worse.

In the Middle Ages, the jurors had good knowledge of the case. They had walked the disputed property line 10 years before. They knew the criminal since childhood. Together they contributed the wisdom of the crowd. The lawyer has perverted these advantages grasped 1000 year ago, and excludes those with knowledge and even those married to those with knowledge. There is no point to having a jury, if only ignoramuses are allowed by the biased lawyer on the bench.

The sole valid jury vote is the secret first vote. It should be the only one allowed. After that, the jury vote reflects the opinion of the biggest loud mouth. The rest of the jurors only want to go home, will go along with any decision that will end their ordeal. If there is a lawyer on the jury, he can reverse the majority vote in the direction of his biased opinion. Under such circumstances, the legislature could set a high threshold of a super majority of the jury for guilty verdict, e.g. 9 of 12.

The jurors should be compensated at their standard salary rate, and there should be no one excused, not even the President of the United States. This is a version of dragooning. The theft of their services is a regulatory taking violating the Fifth Amendment, and I do not care what case law says. The case law was set by judges dependent on free jury services. Their conflict of interest makes all their appellate decisions unlawful and corrupt. Someone asked about compensating a housewife. Employment discrimination laws cover that scenario. What salary would be required to replace her services for her 8 hour workday of a juror? I think you could find someone to do child care, cook, shop, clean, for around $10 an hour, times 8 hours (time on jury duty for a day), so about $80 a day. As to breast feeding, no employment laws cover that. Some employers allow it at work, and it is not disruptive. Others do not. Some of the issues are here. It is not settled in the workplace, so it is not settled in the court. If allowing babies at work replaces maternity leave, it is quite advantageous to the employer.

The defense should be permitted to tell the truth. But for the plaintiff complaint, their lives would not have been interrupted.

Who are the peers in "a jury of one's peers?" One's peers are one's fellow citizens in town. So, random assignments to cases would be the fairest. That would end the churning cases, and appeals on discriminatory juries. It would end voir dire, the questioning of juries. The latter has never been proven effective for the lawyers. They just add hours and days to their billed time.

Bad Cult Uses Good Tactics Against the IRS

Many thanks to Prof. Howard M Friedman and his great site.

Here.

1) Massive number of lawsuits simultaneously. "It gained church status from the IRS by, "...an extraordinary campaign of public pressure backed by thousands of lawsuits.... The church filed about 200 lawsuits against the IRS, seeking documents to prove IRS harassment and challenging the agency's refusal to grant tax exemptions to church entities. Some 2,300 individual Scientologists also sued the agency, demanding tax deductions for their contributions. "Before you knew it, these simple little cookie-cutter suits … became full-blown legal cases," Rathbun said."

2) Attack IRS conduct with documents obtained by the Freedom of Information Act. "Armed with IRS records obtained under the Freedom of Information Act, Scientology's magazine, Freedom, featured stories on alleged IRS abuses: lavish retreats on the taxpayers' dime; setting quotas on audits of individual Scientologists; targeting small businesses for audits while politically connected corporations were overlooked. Scientologists distributed the magazine on the front steps of the IRS building in Washington."

3) Whistleblower group. "A group called the National Coalition of IRS Whistleblowers waged its own campaign. Unbeknownst to many, it was quietly created and financed by Scientology."

4) Advertising. "...full-page ads in USA Today criticizing the IRS."

The federal government is in failure. It attacks innocence and protects evil (but not in the case of the Church of Scientology). It is supposed to protect the public. It protects itself only, if at all. Such counter-measures have full moral and intellectual justification to deter it.

Lower Health Care Cost by 50% by Getting Rid of the Lawyer, Number One Enemy and Threat to Clinical Care

1) There is 2% in medical malpractice insurance cost. Most of it ends up in the pockets of lawyers, filing weak cases to score in the lawsuit lottery.

2) There is 10% defensive medicine.

3) There is 20% spent on worthless end of life care that tortures dying old people, solely motivated by a need to protect oneself from litigious, scapegoating, greedy, family members.

4) There is at least 20% for unproven, gold plated worthless regulation and accreditation standards. As the authorities impose phony standards of care from evidence based medicine, shouldn't the authorities prove that every new standard imposed at the point of a gun has been proven to achieve better patient outcomes. This requires pilot studies and controlled experiments in every larger settings. All new standards are garbage science until proven otherwise. These accrediting and licensing authorities should be sued every time they impose their garbage standards.

5) There is 10% overhead for insurance disputes and billing. This includes about 2% ($31 billion) just to deal with insurance forms, reviewed here (requiring free registration). The lawyer has immunized these HMO companies from any accountability. Even valid claims of insurance bad faith will fail. They are now huge, mature industries. They no longer need unfair and unjustified immunities. Strong lobbying efforts should end their unconstitutional immunities. The first lawsuit should be for the free labor, and its resulting unjust enrichment, pre-authorizations being for their benefit, that they intentionally forced from doctors, something like $trillion.

6) There is the cost of medical errors, perhaps up to 5%. Every medical error is caused by the lawyer. Instead of thorough investigations and system changes to prevent them, errors are covered up because they will take down the entity when lawyers get a hold of the reports. Such reports are testimony against interest, an exception to the hearsay rule. Every word will be blown up in a poster or Power Point in front of the jury, and read aloud, over and over.

7) There is the retention of incompetent, unethical, and dangerous staff, costing another 5%, because employment lawyers would destroy the place if they were fired.

8) There is more self-care. People are fully capable of learning how to diagnose and treat a higher level of disorders than cuts and colds. Make many non-addictive medications available over the counter, most of which are safer than those available one, in use and in overdose. People should be able to read about the management of a minor, non-lethal ailment, its medication management, then to take a low dose of a medication over the counter. The package insert should be written at the sixth grade level.

9) The biggest untapped mine of medical advance, at no additional cost, is the off label use of many medications. End the draconian punishments for off label promotion by drug companies. And fund a lot of research into exploiting the medication we have now. One person's horrible side effect is another's life saver. Headache patients accidentally died from unknown internal bleeding caused by aspirin. The blood thinning side effect has saved countless heart attack patients.

Get rid of the oppression and plunder of the pestilential land pirate, and health cost would be 50% lower, have higher quality, with errors nearly gone. And, you would have enough money left to buy the uninsured top of the line executive grade health insurance.

Cali Court of Appeals Limits Doctor Liability to Third Parties

Greenberg v Superior Court of Orange County

The doctor changed medication of his Asperger Syndrome patient. The patient killed a bunch of people and himself. The estates sued the doctor for medical malpractice, not for failure to warn. There was no specific threat made by the patient.

The doctor had no duty to the infinite number of potential patient victims.

Experts

A doc blogs about his medmal case, already concluded.

1) Experts are subject to outcome bias, as is everyone else, including juries and judges. The same procedures will be rated as within standard of care if the outcome is good in a case presentation, and outside the standard if the outcome is bad with exactly the same steps. Outcome bias is a bias, as racism is. It violates the procedural due process of civil defendants to a fair trial, a right established by the Supreme Court. No one has ever used this tactic in a trial or in an appeal. The bias is so well proven that any defense lawyer not asserting it took place should be terrorized by the legal malpractice expert employed as personal lawyer by the defendant.

2) I strongly urge the defendant to have his personal lawyer bully his insurance hack loser traitor lawyer force the opposing expert to produce his own charts on similar cases as the one in the lawsuit. These charts should have been within a year of the injury to the patient, since the standard of care has a short half life. There should be many. If the expert cannot produce his own charts, move for a mistrial, and all costs to the personal assets of the plaintiff, the plaintiff lawyer, and plaintiff expert. The lying expert is not really an expert if he has not done the same work as the defendant. That move will likely exclude all academic assholes. They do not see patients, being scholars, and are totally junior to the defendant, including in IQ.

3) The defendant himself should parse every word uttered by the plaintiff expert. That includes all publication, all reports, and all charts. If a single utterance contradicts any statement in the report, in the sworn deposition, in the sworn testimony, have the personal lawyer terrorize the insurance hack loser into moving for the judge to charge the expert with perjury, and refer the expert to the District Attorney for criminal charges, criminal contempt, and a mistrial, again with all costs to the personal assets of the lying expert. To deter.

Why does one need a personal lawyer to terrorize the vile insurance hack loser? Because the traitor does not want to permanently damage the plaintiff side. This vile traitor owes his job to the lying plaintiff not to the defendant. He will never willingly hurt the other side, because the plaintiff side is delicate, and runs at the first sign of painful resistance. The case costs them $50K to bring. If they see losing that amount, and a crushing resistance, they run away, and never come back.

The innocent defendant has a moral duty to clinical care to never settle, and to actively seek the personal destruction of the plaintiff, the plaintiff lawyer, and the plaintiff expert. If they commit suicide so much better the remedy, that one being permanent. It would be well deserved. Every penny they consume comes from the care of other patients, to maintain their Roman Orgy lifestyles.

4) If opposing experts testify in good faith, then a scientific controversy exists. It cannot get resolved by rhetoric, and jury preference. It may only be resolved by additional scientific evidence from validated research. The court should automatically dismiss the case. So only cases that are within the knowledge of the jury, or have expert support for only one side are within the subject matter jurisdiction of the court. Any case allowing a debate between opposing experts violates the procedural due process right of the civil defendant to a fair hearing.

We need some new approaches to the plaintiff experts. There is no recourse against them outside the trial. The defendant is an expert himself, and should be used to the maximum in the case. One should refer unprofessional conduct to the licensing board of each state in which he is licensed. Send in one complaint a week to a separate board. Each generates an investigation. Do the same with complaints to professional societies, and to the employer. Let the expert live with uncertainty for years if necessary. Generate legal fees if any complaint sticks.

Experts have absolute immunity for their opinions. This is based on the First Amendment, on a Supreme Court decision, and on universally accepted public policy. To encourage service to the court. It applies to the defense expert, and to the defendant when testifying. I think it is fair.

There is a lot of recourse within the trial, with the judge. This is never used, because it would end the medmal business. So the defense attorney must be forced. He may resign before allowing these.

1) Demand charts of the plaintiff experts for similar patients. If there are no recent charts, as in the past two years, seek disqualification of the expert. He is not an expert, then. Reading from a book does not make anyone an expert.

2) The defendant must read every word uttered by the plaintiff expert anywhere. If any asserted fact is not true, the witness is guilty of perjury or criminal contempt of court. So, double check all experience. Say, he testifies he spent 2 years in a fellowship, but left after one. That is a false fact, not opinion. Say, he testifies he read a certain document, but obviously knows nothing about it. That is a false fact. If an opinion contradicts an opinion in testimony or report, let the defense lawyer know to impeach the plaintiff expert. “Doctor, in which passage were you lying?”

3) I would like to see total e-discovery of all plaintiff parties, including the plaintiff, the plaintiff lawyer, and all plaintiff experts. Get all personal computers, get all social networking names and aliases, seeking improper motives in the lawyers, and bias in the plaintiff and in the plaintiff expert.

4) Have the defense expert go through the plaintiff expert report. And use this checklist of biases to characterized every conclusion.

http://en.wikipedia.org/wiki/List_of_cognitive_biases

Some defense attorney will have the courage to call for a mistrial because these biases violate the procedural due process rights found for the civil defendant. Most medmal cases are weak and represent an expression of outcome bias. The latter also explains the disparities in insurance rates between specialties. Neurosurgeons do not make more mistakes than dermatologists. Their bad outcome generates more revenge motivation than those of dermatologists. White Coat correctly identified the scapegoating motive of the claim. It is unlawful. The defense attorney must ask for a mistrial and all costs to the personal assets of the plaintiff lawyer. Will never happen unless the defense attorney is threatened with personal destruction by another lawyer.