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.