Get in Touch

Month: January 2020

What are the Dangers of Jet Fuel Exposure?

Posted on by Burton Bentley II, M.D FAAEM

When a Delta Airlines plane dumped jet fuel over several Los Angeles County schools in preparation for an emergency landing, among the issues raised was the risks to the children and teachers hit by the fuel. While some studies have been done regarding the dangers of exposure to jet propulsion fuel, it can be difficult to prove how much exposure is required before a person suffers lasting harm.

Toxicology research has been conducted on military jet propellants JP-5 and JP-8, and on Jet A, a propellant generally used in civilian aircraft. The fuels are made from hydrocarbons but may also contain various additives such as antioxidants and additives to prevent icing in the fuel lines. This makes it hard to assess risk even among samples of the same type of fuel. Compounding the difficulty is that limited research has been done on humans, and individuals can be harmed by fuel through inhalation, oral ingestion, and dermal exposure, which may cause different health effects.

Human studies have found evidence of neurologic effects including headache, nausea, vomiting, dizziness, fatigue, in coordination, irritability, problems with attention and memory, narcosis (stupor or unconsciousness), and gait disturbances from acute exposure to JP-8. In addition, acute- and intermediate-duration exposure to JP-8 followed by exposure to noise has resulted in hearing damage from alterations in the peripheral auditory system and the central auditory processing area. Animal studies have further indicated possible respiratory, hepatic, dermal, and immunological effects as well as developmental toxicity. Even accepting that harm can occur generally, the research shows that there are many factors that may affect the level of harm, including, the amount, duration, and route of exposure; exposure to other chemicals; and a person’s age, sex, diet, family traits, lifestyle, and state of health.

Notwithstanding the Delta fuel dump, most incidences of exposure occur with civilian and military workers who come into contact with airplanes or jet fuels. People may also be injured through contact with soil or water contaminated from a spill or leak. When individuals are harmed, they may file for disability and/or bring a lawsuit to obtain compensation. Expert witnesses are essential in proving causation and damages because of the above-mentioned issues involved in evaluating exposure to jet fuels.

Expert witnesses in Toxicology, Occupational and Environmental Medicine (OEM), and Pulmonology can provide invaluable testimony regarding the dangers of exposure as well as how the claimant’s unique circumstances may affect liability. Toxicologists deal with the treatment of poisoning, drug overdose, and exposure to toxins or biological agents. OEM specialists focus on the diagnosis and treatment of work-related illness, injury, and toxic exposures. Pulmonologists specialize in the diagnosis and treatment of diseases of the respiratory tract including the trachea, bronchial tree, and lungs. Other types of experts may also be needed depending on the nature of the injury caused by the exposure.

If you are involved in a claim arising out of exposure to jet fuel, contact Elite Medical Experts for assistance in finding nationally recognized university expert witnesses for your case.

Medical Malpractice vs. Medical Battery Claims

Posted on by Burton Bentley II, M.D FAAEM

As states increasingly enact damages caps in medical malpractice cases, medical battery may offer an alternative theory of liability for a plaintiff’s injuries, thus avoiding statutory limitations on damages. Medical malpractice and medical battery are two different causes of action. Medical malpractice generally stems from conduct that is unintentional and negligent, while medical battery is intentional unauthorized contact. It is possible for a single incident to involve both medical battery and medical malpractice. Such dual claims are known as “hybrid” lawsuits and they are increasingly being brought against physicians. They also pose unique challenges for both sides and care must be taken in proving or defending each claim.

Medical battery cases typically arise when a physician provides care without consent. The law recognizes the right of patients to decide whether to receive treatment. If the plaintiff does not give consent, then he/she may have a claim for battery. Battery requires intentional touching, but does not require a showing of negligence. As a result, it is not necessary to have expert witnesses discuss whether the physician breached his/her duty of care as needed in a medical malpractice action. However, medical expert witnesses may be used to testify regarding whether the provider followed appropriate procedures in seeking consent and whether the patient was capable of giving consent.

Where a patient did give consent, but there are questions about whether the patient was properly informed about risks, benefits, and alternatives, claims for battery may come into play. For example, a patient gives consent to one procedure, but the doctor decides to do a substantially different one or performs procedures which go beyond what was discussed. Some courts have found that this situation may give rise to a hybrid lawsuit alleging both malpractice and battery claims. Plaintiffs argue that they did not consent to the other procedure and therefore, it is battery. Defendants contend they are not acting with an intent to defeat the patient’s wishes; they are simply taking necessary action based on what occurred during the actual procedure. They argue that plaintiffs are relying upon expert witness opinion testimony that shows the surgeon breached the standard of care in deciding to proceed as he did, which is the standard for malpractice actions, not battery.

In order to determine whether such cases constitute medical battery, expert witnesses will be needed to testify regarding the appropriateness of the warnings given by the physician to the patient, including the risk that the doctor may need to do additional procedures. In addition, witnesses may provide testimony assessing whether the procedure done was substantially different than what was consented to.

As noted above, the significance of finding that a physician’s conduct constitutes battery is that a state’s cap on damages (particularly, non-economic damages) in medical malpractice cases may not apply. Currently, 24 states have such a cap. Medical battery claims can avoid the cap resulting in significantly higher verdicts than malpractice actions.

If you are involved in a medical malpractice or medical battery case, Elite Medical Experts provides completely customized expert searches helping you secure university healthcare experts for all types of medical litigation and complex consulting matters. Contact us today for a consultation.

4 Tips for Attorneys to Improve Communication with an Inexperienced Medical Expert Witness

Posted on by Burton Bentley II, M.D FAAEM

A top-notch expert witness is invaluable in a lawsuit. However, if the physician or surgeon has little experience as an expert witness, attorneys may face several challenges in working with them, which could adversely affect the case. Good communication is essential between attorneys and experts. Some helpful tips to aid those efforts include the following:

  1. Detailed retainer agreement. An inexperienced expert witness may not appreciate the amount of work, time constraints, and practical issues involved in testifying or consulting. A retainer agreement should outline the expectations for the expert including an explanation of the services to be performed. In addition, it should set forth the fees to be paid and invoicing and payment terms, including the need for pre-authorization of billable hours and expenses. Also, attorneys should emphasize the importance of timely billing to ensure that the expert’s payment is approved and paid prior to the distribution of any case proceeds.
  2. The expert’s deadlines and deliverables. An engagement typically requires several deliverables from the expert that must be communicated by the attorney. While the retainer agreement may state that the expert will prepare a written report, reports are rarely necessary when an expert’s opinion is negative. For this reason, attorneys should always schedule a phone call to discuss the expert’s preliminary findings prior to drafting a written report. Best practice is for the attorney to give a specific and detailed explanation of what they expect the expert to do, the time by which it should be completed, and the way in which the expert’s opinion should be conveyed. Attorneys should also provide any special instructions, such as the need for a written report to be signed or notarized. Since experts may not understand the strict deadlines involved in litigation, lawyers must clearly explain the need to comply with due dates and should provide reminders as deadlines approach.
  3. Contact information and communication preferences. Both the attorney and expert should convey the best ways to reach each other and expectations regarding communication. For example, if either party sends information to the other, the recipient must confirm receipt. In addition, it is important to provide guidelines on how often and by what means regular communication may occur, such as the need for a regular status call. In particular, experts should understand that written materials are discoverable so they must follow the attorney’s instructions regarding what should be put in writing. Ongoing communication is the surest way to affirm that both the attorney and expert are on the same page regarding expectations along the case’s trajectory.
  4. Mutual respect. Attorneys are incredibly busy and prone to unexpected interruptions from clients and courts. Physicians and surgeons are also pulled in many directions, but their disruptions are more unpredictable and may literally involve life and death. For that reason, it is important for medical experts and attorneys to have mutual respect. A canceled call or delayed communication is to be expected and should not adversely impact trust and confidence. When communications are routinely missed, an open dialogue can resolve the issue in creative ways such as arranging communication by text, after hours, or on weekends. Professionalism, understanding, and respect always triumph over resentment.

Each of the greatest experts in history started with a first case, so inexperience as an expert witness should not be a universal disqualifier. In fact, using a novice expert can benefit your case by preventing the attacks used against experts who frequently testify and by showing that you didn’t need a “hired gun” from a stable of experts. However, the challenge is in educating them about the litigation process. Good communication with your expert witness serves that purpose and is the key component to a successful engagement.

If you are considering or involved in any type of medical litigation, contact Elite Medical Experts to hand select nationally recognized experts (Professors of Medicine and Surgery) for your case. Our customized expert searches can help you find the right expert in the exact injury and issues involved in your matter.

Jury Finds For Plaintiff Following 90% Loss Of Kidney Function

Posted on by Burton Bentley II, M.D FAAEM

What is the role of a urology expert witness? Urologists are M.D.s who complete a five-year postgraduate residency in urology. After passing their board examination, they are certified by the American Board of Urology. Urology expert witnesses provide informed and unbiased reports and testimony in cases alleging medical negligence. Allegations may include failure to diagnose and/or treat various urological conditions.

Healthline.com explains that the “urinary tract is the system that creates, stores, and removes urine from the body. Urologists can treat any part of this system. This includes the kidneys, ureters, bladder, urethra, and adrenal glands.” Errors in urology surgery may lead to incontinence, sexual dysfunction, sterility or death. Errors in postsurgical care can result in internal bleeding, serious infections, and necrosis.

UrologyTimes.com reports on a case in which a patient brought a malpractice suit against his treating urologist. The patient alleged that the urologist failed to diagnose a ureteropelvic junction obstruction. By the time a second urologist ordered a kidney function study that confirmed the blockage, the patient had lost 90% of the function of his left kidney. In court, the plaintiff’s medical expert witness opined that the patient’s left kidney demonstrated probable impairment at the time of the first and second exams by the urologist defendant.

The defense argued that the urologist was not informed of the patient’s care following the second appointment, and therefore, the urologist was absolved of the responsibility to monitor the patient’s kidney issues. However, the plaintiff’s expert witness testimony convinced the jury that the urologist’s negligence was the proximate cause of the plaintiff’s loss of kidney function.

Securing the most qualified expert witness adds a powerful professional to your legal team. Elite Medical Experts is a physician-led firm that connects you with a professor of medicine at a leading university who also has a full-time clinical practice. Contact Elite Medical experts to find the strongest consultant for your case.

 

Lawsuits Involving Uterine Power Morcellation for Presumed Leiomyomas

Posted on by Burton Bentley II, M.D FAAEM

The potential dangers of power morcellation have been studied for years, yet the procedure continues to be used. Morcellation is a surgical technique to reduce the size of the uterus or myomas (“fibroids” or “leiomyomas”) by cutting tissue into tiny pieces to allow removal through small incisions or with laparoscopic instruments. While manual morcellation has been used for decades, power morcellation using electromechanical devices was introduced in 1993. Power morcellation has significant benefits, but open or uncontained morcellation performed without first placing the specimen into a containment bag poses significant risks. In 2014, the FDA issued a black box warning on the use of power morcellation in the treatment of presumed leiomyomas but did not ban its use. As a result, the procedure is still used resulting in continuing litigation.

The advantages and disadvantages of power morcellation can complicate a lawsuit. The use of a power morcellator allows doctors to treat fibroids using minimally invasive incisions rather than abdominal surgery. This results in faster and less painful healing and fewer complications. However, if the fibroid is cancerous, the morcellator can disperse cancerous cells throughout the body. It is particularly dangerous if there is an unsuspected uterine leiomyosarcoma, a rare form of cancer, that is highly aggressive and prone to spreading to other parts of the body.

While there are risks of using morcellators, there are conflicting studies regarding the level of absolute risk of a presumed leiomyoma (benign tumor or fibroid) actually harboring a leiomyosarcoma (malignant tumor). In addition, evidence that morcellation of a leiomyosarcoma worsens a patient’s prognosis is limited. Lawsuits against manufacturers are likely to require the use of expert witnesses in Gynecologic Oncology to discuss these studies. Gynecologic Oncology is a surgical subspecialty dealing with both operative and non-operative management of cancers of the female reproductive system.

With respect to medical malpractice claims, current guidelines provide that a preoperative evaluation should be done to evaluate whether a woman is at increased risk of malignancy of the uterus. A Gynecologist or Gynecologic Oncologist can testify regarding the appropriate use of imaging, cervical cancer screening, and endometrial tissue sampling to identify malignancy in addition to risk stratification for leiomyosarcoma that may not be reliably identifiable preoperatively.

Since no test can completely rule-out the diagnosis of leiomyosarcoma preoperatively, the issue of informed consent is also an area of potential malpractice. The physician must provide appropriate information regarding the risks of morcellation versus alternative procedures, such as abdominal surgery, morcellation through suprapubic or umbilical incisions with containment bags, hand-assisted morcellation through a mini-laparotomy, and vaginal manual morcellation. Again, Gynecologic Oncologists offer valuable insight and testimony on standards of care for the technical performance of uterine morcellation and informed consent.

If you are considering a lawsuit or defending against one involving a power morcellator, please contact Elite Medical Experts. We can help you find nationally recognized university experts for your case.