What do you think of this "expert" testimony?

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Arcan57 said:
The website owners would get hit with cease and desist orders. I don't know if there's been any successful litigation but I do know there have been cases of lawyers going after websites for hosting content they didn't create that was considered libelous.
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I think this is relevant:

http://www.mrmoneymustache.com/2014/03/11/mmm-receives-legal-threats-great-lawyer-wanted/
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What if you had a website to track physicians who testify against other physicians, but kept it to the very basic FACTS only. In other words, trial month/ year, testifying physician, and defending physician. So something like this:

03/2014: Peter Rosen, MD testified as witness for the prosecution in the case of Babe Emomma vs Bob Smith, MD

03/2014: Ima Doeche, MD testified as witness for the prosecution in the case of Penny Lehse vs Dave Jones, MD

02/2014: Hugh Gsellout, MD testified as witness for the prosecution in the case of Rita Tarde vs Larry Johnson, MD

And etc etc. And have a search function where you can search by name, or most number of cases involved in, etc. So you could search "Peter Rosen" and 18 results would pop up or whatever. Or you could search as "sort by highest number" and sort down the list of worst offenders.

There would be NO commentary of any sort, just the simple facts listed above. Could anyone sue over that?? When all you are stating is fact?? If so then can I sue ESPN for reporting the name of the winner of a tennis match? I think as long as there is zero commentary of any kind, we would be ok.
 
Mr. Hat said:
What if you had a website to track physicians who testify against other physicians, but kept it to the very basic FACTS only. In other words, trial month/ year, testifying physician, and defending physician. So something like this:

03/2014: Peter Rosen, MD testified as witness for the prosecution in the case of Babe Emomma vs Bob Smith, MD

03/2014: Ima Doeche, MD testified as witness for the prosecution in the case of Penny Lehse vs Dave Jones, MD

02/2014: Hugh Gsellout, MD testified as witness for the prosecution in the case of Rita Tarde vs Larry Johnson, MD

And etc etc. And have a search function where you can search by name, or most number of cases involved in, etc. So you could search "Peter Rosen" and 18 results would pop up or whatever. Or you could search as "sort by highest number" and sort down the list of worst offenders.

There would be NO commentary of any sort, just the simple facts listed above. Could anyone sue over that?? When all you are stating is fact?? If so then can I sue ESPN for reporting the name of the winner of a tennis match? I think as long as there is zero commentary of any kind, we would be ok.
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I think the decision/judgment of the case should be listed as well, since it is factual information.
 
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great peter rosen related story. a friend of mine( an older er doc) trained with rosen. he was acting as a witness for the defense in a malpractice trial and an attorney tried to quote something out of rosen and barkin at him. he said " if you will check in the references, you will see that I helped write that chapter and I know what I said".
verdict for the defense.
 
Couldn't be Rosen's testimony. Not enough profanity.

Seriously though, pretty disappointed to see Rosen working as a prosecution witness. If you're smart you'll save your money so you don't have to do work like this when you're 80 to pay the bills.
 
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The White Coat Investor said:
Couldn't be Rosen's testimony. Not enough profanity.

Seriously though, pretty disappointed to see Rosen working as a prosecution witness. If you're smart you'll save your money so you don't have to do work like this when you're 80 to pay the bills.
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Do you keep in contact with the UA EM folks? Maybe you can call Sam Keim and see if they'll have a heart to heart with Rosen.
 
Hooper said:
WTF. I'm never using PERC again.
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Don't forget PERC relies on clinical gestalt and not just the other criteria. Your attending had a gestalt that made PERC invalid, so they were right on to get dimer and scan.
 
There's always an ultra-conservative person out there who points to a case of a patient with minimal symptoms, normal vitals, satting 100, who they scanned for a PE (for God knows what reason) and low and behold they had a clot. Thereby confirming the diagnosis, the lungs are doing exactly what they are supposed to do. Unfortunately now, you have diagnosed a tiny subsegmental PE that would have never caused a problem and now this person is going on coumadin, which is great until they fall or get in a car accident. Thanks for diagnosing the irrelevant, hemodynamically insignificant PE and saving their life with the coumadin that would later cause them to bleed out or have mashed potatoes for brains after they fell down the stairs.

Rosen's testimony obviously here is ridiculous. This case turned out awful, but to be honest I can see myself doing the same workup. It's cases like these we buy malpractice insurance for, the type of case where you do everything in a totally reasonable fashion and the outcome is poor. That's life. And it's in an atypical case like this where the MD performed a reasonable evaluation that they should be alright.... unless there are folks like Rosen trying to throw them under the bus.

And as far as I know, katyperry, he works next-to-zero shifts at UA and spends time there because the weather is nice in the winter. Someone at UA may have other details.
 
Some **** about to get real. Real quick.
 
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Wonder if it's possible to attack Rosen's credibility on the stand by going through his textbook with a fine tooth comb and pointing out all the items which are out of date and have been overturned by new trials (because all texts have some out of date information)...

Not a lawyer, just wondering. With regards to the website, simply use a foreign domain registrar with a foreign LLC in a very unfriendly jurisdiction.
 
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Tell me more!
Rosen's book is horribly out of date. Saw him give a lecture last year and it's hard to imagine this is the guy teaching us what we need to know. When there are so many great lecturers and writers in emergency medicine, I cringe when someone says 'I'm reading Rosens...'
 
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Right msg...either force him to choose between testimony and textbook income or force him into an annual update cycle for the text.
 
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I don't think Rosen has much of anything to do with the last few versions of that textbook. And I certainly wouldn't think someone foolish for reading from it.

The connection at UA is that he trained Harvey Meislin, who was the chair of the department there for a long time.
 
Old_Mil said:
Wonder if it's possible to attack Rosen's credibility on the stand by going through his textbook with a fine tooth comb and pointing out all the items which are out of date and have been overturned by new trials (because all texts have some out of date information)...
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Maybe only mental status exam in court will suffice.

My program just forced a 84 yo faculty to retire - he does not know/use any newer generation of drugs, but at least he is not ruining his colleagues' lives like Peter Rosen.
 
Forgive me if this is a bit naive but can't this work the same way in reverse? Is it not possible to get an evidence based fair minded EM attending to act as an expert witness on behalf of the defendant? I know I for one would be more than willing to do this to prevent a colleague from being reamed by some money grubbing sellout. Maybe its something we can all commit to as a whole to defend ourselves from this kind of garbage.
 
OccupyTheED said:
Forgive me if this is a bit naive but can't this work the same way in reverse? Is it not possible to get an evidence based fair minded EM attending to act as an expert witness on behalf of the defendant? I know I for one would be more than willing to do this to prevent a colleague from being reamed by some money grubbing sellout. Maybe its something we can all commit to as a whole to defend ourselves from this kind of garbage.
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A lot of big name EM academics do that-- Jeff Kline, Amal Mattu, etc. -- they work for both plaintiffs and defendants though. I haven't heard anyone yet talk about they only do work with defendants, presumably because working for med-mal plaintiffs pays so much better.
 
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Birdstrike said:
Has the PERC rule been validated in the Pediatric population?????????
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It is important to note that you could not apply PERC to this patient, as he had surgery 3 weeks before he presented. PERC rules can only be applied to low risk populations, and this patient, despite his age, was not low risk. He had surgery three weeks ago.

If you had a patient with pleuritic chest pain, surgery 3 weeks ago, and an s1q3t3, you missed the PE. The only part of this case that would lead you away from the CT is his age. If he had been 45, everyone of us would have considered PE strongly (or cardiac obs.....haha).

You could have picked it up. You didn't. The kid died. He was 15. That is a lawsuit 100% of the time.

Gross negligence though........That is a tough one. I don't think that there is any evidence of that.

Another thing to consider. Obviously the parents had lots of money.

Two appeals? One the state supreme court. And you could afford such expert witnesses?
 
A recurring issue in the plaintiff case, and echoed by others in this thread, is that his surgery alone made him high risk for a DVT/PE.
This just isn't true, not all surgery conveys the same risk for thromboembolism.
From what I remember about this case, the kid had recently undergone an arthroscopic knee surgery...not a casted tib/fib fracture, not a femur fracture, a knee scope.
It is important to point out that the incidence of DVT/PE after arthroscopic knee surgery is a .25% and .17% respectively at 90 days per a 2012 JBJS study of 20,000 patients, and a 2011 study found the incidence of PE to be 2.8/10,000 scope. I would consider that VERY VERY VERY LOW risk. That is actually 10x less risk than the risk conveyed to a PERC negative patient (1.8%). My risk of getting a DVT sitting on my toilet while writing this response is probably higher than my risk of getting a DVT after a knee scope and the majority of the DVT/PE cases were in people >50yo and people on OCPs.
To hinge the argument of gross negligence on crap like this is unconscionable, and I hope Peter Rosen everyday feels deep traitorous disdain for himself for attempting to gut a specialty that he helped create.

***If the kid had undergone some actual, invasive, immobilized knee surgery, excuse the above rant***
This thread really boils my blood,
-1234

For other nerds who want links to the cited stats:
http://www.ncbi.nlm.nih.gov/pubmed/21196542
http://www.ncbi.nlm.nih.gov/pubmed/22517387
 
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em1234 said:
I hope Peter Rosen everyday feels deep traitorous disdain for himself for attempting to gut a specialty that he helped create.
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I'm sure he's really feeling disdain as he's enjoying all the money he's obtained from being an expert witness. There are people that will sell their soul for a buck.
 
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Birdstrike said:
To the pre-meds, medical students and residents:

Is everyone clear as to what and in what amount, a physician is given by a plaintiff's attorney to review a case, and to testify in a deposition or trial as a witness against another physician (in general, not in reference to any specific physician or case)?
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I knew a guy who charged base fee of a few thousand dollars plus expenses and $200 an hour for testimony in regard to mesothelioma cases. Had B reader certification and was pretty sought after.
 
em1234 said:
A recurring issue in the plaintiff case, and echoed by others in this thread, is that his surgery alone made him high risk for a DVT/PE.
This just isn't true, not all surgery conveys the same risk for thromboembolism.
From what I remember about this case, the kid had recently undergone an arthroscopic knee surgery...not a casted tib/fib fracture, not a femur fracture, a knee scope.
It is important to point out that the incidence of DVT/PE after arthroscopic knee surgery is a .25% and .17% respectively at 90 days per a 2012 JBJS study of 20,000 patients, and a 2011 study found the incidence of PE to be 2.8/10,000 scope. I would consider that VERY VERY VERY LOW risk. That is actually 10x less risk than the risk conveyed to a PERC negative patient (1.8%). My risk of getting a DVT sitting on my toilet while writing this response is probably higher than my risk of getting a DVT after a knee scope and the majority of the DVT/PE cases were in people >50yo and people on OCPs.
To hinge the argument of gross negligence on crap like this is unconscionable, and I hope Peter Rosen everyday feels deep traitorous disdain for himself for attempting to gut a specialty that he helped create.

***If the kid had undergone some actual, invasive, immobilized knee surgery, excuse the above rant***
This thread really boils my blood,
-1234

For other nerds who want links to the cited stats:
http://www.ncbi.nlm.nih.gov/pubmed/21196542
http://www.ncbi.nlm.nih.gov/pubmed/22517387
Click to expand...


A 15 year old boy presents with chest pain and shortness of breath 2 weeks after orthopedic surgery. It may well be that this particular surgery is less risky than other lower extremity orthopedic procedures but I can't help but believe that most emergency physicians would not to consider pulmonary embolus in this context.

I think most EM physicians would rule out the PE life threat with more than a clinical exam. I may work in a setting with an over compulsive practice, but I suspect many of us would have tried screening with the D dimer and followed up with the CT scan if this was positive. Many would feel that the risk of pulmonary embolus although small exceeded the testing threshold for a CTA. One can debate if obtaining a D dimer would have been useless in this postop period but relying on the clinical exam alone would be risky. One can argue that the risk of a pulmonary embolus in this setting falls below the risk of obtaining a CTA but there are no rules or evidence that are universally excepted in this particular setting. Agree with the opinion or not, I do not think that it is *exceptional or dishonest* testimony to state that the failure to work this patient up for pulmonary embolus falls below the standard of care. We can debate if it is clinical judgement, negligence or gross negligence but concluding that one expert's opinion is dishonest or being bought, because one believes that physicians should not testify for plaintiffs and that societal sanctions will discourage them from acting as plaintiffs experts is the real dishonesty.

Now I know Peter Rosen very well, having trained under him and having been mentored by am for years, so I admit I'm heavily biased. He may be strongly opinionated, and possess extreme beliefs about compulsive work ups to ensure patient safety but he's not dishonest. He does more defense work than plaintiff work and believes that his credibility to jurors as a defense witness is supported by the plaintiff work. There is a way to understand why he testifies for the plaintiff. In 1990 in the journal of emergency medicine, Fish and Rosen published a paper on why physicians should be expert witnesses. If anyone is interested in understanding Rosen's motives and his views on the ethical concepts behind this activity, they are presented in a far better manner in this paper published a quarter of a century ago than I could achieve on this post. So before condemning the guy who championed the specialty in the early years, helped found ABEM created the leading text book and one of our journals, I would suggest that honesty would require much more careful thought and an attempt to understand a different viewpoint. One can disagree with his ethical views without necessarily concluding that they are dishonest or motivated by financial gain.

Trying to reduce malpractice by creating of threatening environment through societal sanctions of plaintiff expert witnesses is a very dangerous idea. If you look carefully at how our specialty came into existence, and why it has not developed to the same extent in Europe, there are strong indications that it was legal risk that compelled hospitals to preferentially select emergency medicine specialists over less expensive family practitioners and internists to staff emergency department. The plaintiff bar not only does not gut our specialty but it may protect it. While I fully agree that being sued is a horrendous experience and tort reform is desperately needed, attacking plaintiff expert's is not the way to do this. The apology system developed in Michigan and tort reform as implemented in Texas are by far the right strategies.

The American legal system only works if both sides have access to expert testimony. Only acting as an expert witness on the behalf of the defense invalidates defense experts in court and allow the very worst physicians to appear credible when testifying for plaintiffs. Finally, creating a threatening environment for expert witnesses from any of our societies could certainly be construed as witness tampering and could be extremely dangerous to the good standing of our specialty. So if we are going to go after exceptional testimony, let's be very sure that it really is egregious and dishonest. Fully disclosing that I have a huge bias in favor of Peter Rosen, I would still argue that this is not the case not is this the expert that should be the target of this professional anger. I also will disclose that although I've stopped it because it's distasteful, infuriating, and time-consuming, at one point I my career I did expert witness work for both defense and plaintiffs cases. But I did not stop because I think it's wrong. I believe that we need qualified emergency medicine specialists testifying on both sides to ensure that the process is honest and fair for patients as well as for our fellow colleagues.
 
HAEMR Head: I have a serious problem with his testifying that the actions of the physician were grossly negligent.

Many do not understand the difference between negligence and gross negligence. Negligence is not following standard of care or due diligence of what a consensus of physicians would do. Gross negligence is being careless, a wanton lack of regard for the patient, not doing what a lay person would even recognize.

Examples:

Negligent: Not obtaining a chest x-ray in a patient who is dyspneic and hypoxemic but treating them (antibiotics, oxygen, etc), having a patient with a history concerning for SAH and negative CT but not LP'ing the patient, etc.

Grossly Negligent: Not getting an EKG or troponin on a high-risk chest pain patient, sending home a documented STEMI, not putting a chest tube in a tension pneumothorax and instead sending the patient home, sending home a patient with an acute aortic dissection, etc.

Gross negligence has serious consequences. Many malpractice carriers can refuse to pay for gross negligence, and some medical boards will place a physician on suspension or revoke their license in gross negligence cases.

(Edited for grammatical errors. Sorry, posted this originally with no sleep.)
 
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HAEMR Head,
I think it's admirable that you have come to the defense of a friend.
That said, the issue I raised other than the snide remark at the end where I think Rosen sucks, is really tied to southerndoc's points of gross vs simple negligence. My issue is NOT that the plaintiff had access to or ability to use an expert witness, it's that they found an expert witness who agreed to testify that this was GROSS negligence.
As a refresher from my earlier post, the GROSS negligence definition is...
“equivalent to (the) failure to exercise even a slight degree of care” and “lack of the diligence that even careless men are accustomed to exercise.”

Did this kid have some risk for a PE? Yes. Would most conservative docs have worked this up and caught it? Yes. Are there plenty of docs who would have done the same work up and sent him home? Yes. Is it a tragedy that the kid died? Yes. Did the doc, check labs, imaging, EKG. Yes. Did the doc likely consider the dx but figured it less likely? almost certainly, but even if he/she didn't. Is it gross negligence, No. No. No. 1000x no.

And before someone trots out the old, "It's our job to rule out emergencies." I agree, but that is a professional standard, not a legal standard. That can be the benchmark for your monthly peer review, but not for your trial. We continually flog ourselves by routinely holding ourselves to some unobtainable no miss BS, when the law in a GROSS negligence case gives you a lot of leeway. Gross negligence is sending home a misread STEMI, sending home a febrile neonate, not getting a preg test and sending home a hypotn vag bleeder/ruptured ectopic. We clamor and beg for tort reform, but then a case like this comes a long in an aggressive tort reform state and we F it up for ourselves, by not adhering to the LEGAL standard, because some clown comes out to apply his personal PROFESSIONAL standard in contradiction of the legal standard and state that the case failed to meet the LEGAL standard. In this case those clowns happened to be a fairly well known medmal mercenary and one of the forefathers of emergency medicine, which is why I think I got so upset and why it seemed so treasonous. It clearly wasn't just me who felt so, as the only reason most of us heard about this case was through the ACEPNOW article calling out this case and specifically he plaintiff's expert witnesses for a significant misapplication of a professional vs legal standard and how it completely undermined the tort reforms for which we fight.

The sheer fact that there has been so much debate on this site and in response to the ACEP now article about whether or not it was negligent is essentially the definition of why it is NOT GROSS negligence. Lack of diligence that even a careless man is accustomed to exercise, failure to exercise even the slightest degree of care. 99/100 EP's should be able to quickly, easily, and without any trepidation be able to say a case was clearly negligent before a case is deemed GROSSLY negligent. This case just doesn't have it. And until we can divorce our professional standard and desire to not miss anything ever from legal system in which cases like these are tried, then tort reform will mean nothing. It may make it less likely that your case will be taken by an attorney, but you are back to even money once you go to court.

This is why lawyers and administrator own us as a specialty and medicine as a whole. We can never seem to bring ourselves to play by their rules and end up turning on ourselves when we need it the most.
-1234
 
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em1234 said:
The key here isn't the "standard of care" element. It's the issue of gross negligence. Peter Rosen and the other expert had the gall to state the physicians work up and interpretation of the data violated a GROSS NEGLIGENCE standard, not the simple negligence standard. Rosen is stating that the treating physician provided care that was “equivalent to (the) failure to exercise even a slight degree of care” and “lack of the diligence that even careless men are accustomed to exercise.” Whether or not you feel that this work up failed to meet the standard of care is irrelevant, I don't think a reasonable physician would argue that this work up lacked the diligence of even careless men.

This should strike considerable fear into the heart of every emergency physician that goes to bed at night feeling warm and fuzzing inside because they practice in a "tort reformed" state, as you are just an "expert witness" willing to hyperbolize their opinion away from losing a crushing defeat regardless of the legal standard in your state. This case had all the elements we pine for around the water cooler when we discuss how "we" would fix the med mal system. A tort reformed state with a high legal standard (it doesn't get better than gross negligence), expert witnesses from within our own field who would appreciate our though processes in working up patients (Peter Rosen wrote the book) and to boot it's a case that clearly isn't a slam dunk. This isn't a case of a febrile neonate who was sent home as a viral illness or hypotensive tachy abdominal pain vaginal bleeder with a positive pregnancy and no IUP on u/s sent home as dysfunction uterine bleeding. This was reportedly a normo-vitalled, 15yo with some chest pain. Unfortunately, it went all wrong for this defendant. This case is a canary in the coal mine for the role of personal legal protection when the forefathers of our specialty are willing to come out to haunt us, not help us as a specialty. If we as a professional society can not get behind the idea of acceptable miss rate and truly appreciate what is an unfortunate bad outcome compared to true negligence then we as a profession are doomed if not dead.

This one has really bummed me out,
1234
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Not true. Read the Appellate Judgement: "While the Johnsons' experts criticized the care rendered to Shaquille, those experts never opined that Omondi failed to "exercise even a slight degree of care." In addition, even if some of the Johnsons' allegations of negligence could somehow be construed as approaching gross negligence, any such allegations fall far short of providing evidence that is "substantially higher" than a preponderance of the evidence. The facts in this case just are not sufficient to establish that Omondi acted with gross negligence. Because it is undisputable that the Johnsons cannot prove by clear and convincing evidence that Omondi failed to exercise even slight care in treating Shaquille, the trial court properly granted Omondi's motion for summary judgment."

The experts never claimed gross negligence, they just criticized the work-up.

- H
 
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DrDrummer said:
A lot of big name EM academics do that-- Jeff Kline, Amal Mattu, etc. -- they work for both plaintiffs and defendants though. I haven't heard anyone yet talk about they only do work with defendants, presumably because working for med-mal plaintiffs pays so much better.
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No, it is because you have no credibility if you only work defense. Pay is generally the same. Picture this "Dr. So-and-so you have testified at how many trials?" "15 or so" "I see, and of those 15, how many times were for the defense?" "All of them" "All of them, so you essentially believe doctors can do no wrong. Tell me Dr., have you ever heard of a case where you felt the physician committed malpractice? Did you aid the plaintiffs in that case or are you just a paid apologist for bad doctors?"

If you are making a living doing legal work, you have to play both sides. And, speaking from large scale QI/QA experience, there are some legitimate cases out there.
 
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