Filed under: Listing Expert

The Challenge of Presenting Treating Physicians

 

By: E. Drew Britcher and Armand Leone,  of the New Jersey Law Journal, an ALM publication.

Lawyers from both sides of the litigation aisle have long battled over the presentation of opinions by treating physicians, not only with each other but with the physicians themselves and with the strategic and practical considerations of producing them. This should not be a surprise to anyone who has tried more than a few cases, but jurors tend to be more suspicious of the opinions of doctors who have been retained for litigation purposes. This was effectively confirmed by the New Jersey Supreme Court in Stigliano v. Connaught Labs , 140 N.J. 305 (1995), when the court stated:

Without impugning the expert witnesses who may testify for either plaintiffs or defendants, the treating doctors may be the only medical witnesses who have not been retained in anticipation of trial. A jury could find the treating doctors’ testimony to be more impartial and credible than that of retained experts.

However, despite that credibility, the AMA’s position in section 9.07 of their Principles of Medical Ethics that physicians must reasonably cooperate with their patient’s litigation support, and the decision in Spaulding v. Hussain , 229 N.J. Super. 430, 440 (App. Div. 1988), noting that “unless otherwise agreed, a physician treating an accident victim ‘impliedly agrees to appear and testify on behalf of his patient on issues such as the nature, extent and causality of his patient’s injuries,” many doctors are less than cooperative in a patient’s litigation.

Following the Stigliano decision, where neither of the involved doctors had prepared any reports of their opinions, it became accepted that doctors could testify to any opinion on causation that they had arrived at, during the course of their medical treatment. Subsequently, the Rules of Court were amended to reflect a requirement that the identity of experts and treating physicians, who would testify at trial, and their reports, be produced in discovery. While this represented no change as to experts or treating physicians offering certain opinions arrived at for the purpose of the litigation, such as an opinion on permanency, to many, this is a departure from what the court said in Stigliano.

 

Enter the court’s decision in the matter of Delvecchio v. Township of Bridgewater , 224 N.J. 559 (2016), a LAD case where the testimony of a treating physician regarding a plaintiff’s disability was sought to be introduced. The court, citing to past precedent, cited with the Stigliano matter, stated:

The testimony of a treating physician is subject to an important limitation. Unless the treating physician is retained and designated as an expert witness, his or her testimony is limited to the diagnosis and treatment of the individual patient. Given that distinction, if a particular claim requires testimony beyond the plaintiff’s own diagnosis and treatment, the plaintiff may require the testimony of an expert, conforming to NJRE 702 and 703.

Delvecchio, 224 N.J.at 579.

This requirement places the attorney that is seeking that doctor’s testimony at conflict with the doctor, who takes the position that they did not bargain for being involved and inconvenienced by the plaintiff’s litigation or who demands an outrageous fee for meeting their ethical obligations to their patient. Plaintiff’s counsel sought to have the court conclude that the report required by the combination of Rules 4:17-4(a), (e) and 4:10-2(d)(1) is only an obligation that exists if one is prepared—a contention the court specifically rejected. “Under the court rules, a party seeking to present physician testimony at trial must disclose the substance of the witness’s anticipated testimony, and the basis for that testimony, if requested to do that in discovery.”

So, what is a lawyer supposed to do when a doctor refuses to prepare a report? On the plaintiff’s side, one alternative is to have all the plaintiff’s medical records reviewed by a separate physician and have that doctor examine the patient and testify to the whole of the opinions needed about care, treatment, causation, disability and permanency. This would lose the innate credibility that a truly coincidental treating physician’s would potentially hold. So, the alternative is that an attorney should contact the physician and his/her staff and arrange to speak to the physician at a time convenient to the doctor and determine what opinions are not reflected by the doctor’s records and prepare a summary of the treating physician’s anticipated testimony. Should the doctor remain recalcitrant to writing a report or agreeing to an interview, one can always serve the doctor with a subpoena for a deposition. While this may not enamor one to the doctor, it will often get their attention sufficiently to get them to agree to one or the other. Not only is this something that practitioners have done in such situations before Delvecchio, the use of a summary of opinions is an authorized approach in our Rules regarding criminal procedures, as well as being what the court suggested that the Civil Practice Committee consider as an amendment to the rules at issue.

Let this not suggest that this is only the plaintiff’s counsel’s headache. The decision would seem to place a similar onus on defense counsel who might want to elicit testimony from treating physicians that is damaging to the plaintiff, akin to what the defense obtained in Stigliano. So how do they comply? The answer lies in the use of the interview process under Stempler v. Speidell , 100 N.J. 368 (1985). The defense attorney should send the plaintiff’s counsel an authorization to be signed by their client permitting an interview of the treating physician, arrange for the same, and then likewise prepare and serve a summary of the physician’s anticipated testimony. The failure to do so would seem to place defendants in a similar position of possibly being barred from calling the treater.

This approach by each side should not only satisfy the adversary and the court, it should let the practitioner sleep more soundly at night.•

 

Britcher and Leone and are founding partners of Britcher Leone LLC (www.medmalnj.com) based in Glen Rock.

Leave a Comment May 12, 2017

Expert Witness Confronts Pharmaceutical Giant, GSK.

Originally published in The American Lawyer, an ALM Media publication, March 22, 2017.

*Part of the ALM family of award-winning legal products and publications.*

By: Roy Storm, The Am Law Daily

The bad blood between Dr. David Healy and GlaxoSmithKline plc brewed up long before the psychiatrist took the stand in a Chicago federal court last week to testify that the pharmaceutical giant hid the risk of suicide in its blockbuster antidepressant Paxil.

Healy’s testimony is the bedrock of a claim brought by the widow of a Reed Smith partner who committed suicide in 2010 while taking a generic version of Paxil. GSK argues that Stewart Dolin’s death was the result of stress from a diminished role at the firm following a 2007 merger. Dolin’s widow, who claims her husband died from an adverse reaction to Paxil, is seeking $12 million from GSK.

All GSK has wanted is for the fast-talking psychiatrist to stop testifying.

Healy, a professor at a British university and a practicing physician in Toronto, has been a thorn in the pharmaceutical giant’s side since about 1999, when he wrote “The Antidepressant Era” and first began raising concerns about GSK’s clinical trials related to antidepressants known as SSRIs, or selective serotonin reuptake inhibitors. In 2005, The New York Times profiled Healy, noting that he was “internationally known as both a scholar and a pariah.”

“You don’t really know who you can trust,” Healy told the paper.

Healy has been a longtime expert witness in cases against GSK. His all-day direct examination in Chicago last Thursday was followed by a six-hour cross-examination this week. Healy said he had testified in more than 10 cases against GSK, something the company’s lawyers at Dentons and King & Spalding made a spirited effort to prevent in the Dolin case.

Healy’s testimony, for instance, was admitted in a suit in the Southern District of Indiana involving the sister of a priest who committed suicide after taking paroxetine, the trade name for Paxil. That case appears to have settled in 2011. And in 2015, Healy was an author of a new review of clinical Paxil trials on teenagers, which led to headlines that the drug was unsafe for teens.

The heart of Healy’s testimony contends that GSK artificially inflated the number of suicides and suicide attempts committed by members of the placebo group during clinical trials for Paxil. That had the effect of minimizing the risk of suicide associated with the antidepressant, meaning there was no warning of suicide risks on the drug’s label.

In the Dolin case, GSK’s lawyers filed a motion to exclude Healy’s testimony in the Dolin case, writing a 46-page memorandum with 70 attached exhibits arguing that Healy was a financially biased witness with an axe to grind against GSK.

The filing asserts that the lead plaintiff lawyer in the Chicago case, Michael Baum, a senior managing partner of Los Angeles-based Baum, Hedlund, Aristei & Goldman, is an investor in a company founded by Healy. That company runs a website, RxISK.org, which GSK’s lawyers said helps promote suits against the pharmaceutical industry. The filing also said Healy’s personal blog showed his bias against GSK, including his purported belief that the company helped get him fired from a previous professor position and may have been behind an investigation that could have led to his medical license being revoked in the U.K.

U.S. District Judge James Zagel ruled that Healy (pictured right) could testify in the Dolin case. But at the trial, presided over by U.S. District Judge William Hart, lawyers could not ask Healy about his blog or his personal relationship with GSK.

King & Spalding life sciences and health care litigation co-chair Andrew Bayman asked Healy if his website was intended to make it easier for the public to file suits and to garner work for himself as an expert. Healy testified that he bills $750 an hour to testify and $400 an hour to review cases.

But as was the case with many of the points that Bayman tried to pin Healy down on, the psychiatrist was prepared with a response to that charge in court Monday.

The website “has nothing to do with supporting lawsuits. This is all about minimizing the problem so there won’t be lawsuits,” Healy said, adding that Baum’s investment in his company, “would probably put him out of business.”

Proceedings in the Dolin case are continuing this week in Chicago. Some of his former Reed Smith partners are expected to take the stand.

 

Roy Strom is based in Chicago, where he writes about the business of law and the changing nature of law firm client relationships. He can be reached at rstrom@alm.com. On Twitter: @RoyWStrom.

Leave a Comment March 24, 2017

The ‘Mudano’ Rule: Conflicting Expert Opinions Often Prove Fatal

Originally published on The Legal Intelligencer  an ALM Media publication, March 16, 2017.

*Part of the ALM family of award-winning legal products and publications.*

By: Daniel E. Cummins

A plaintiff’s personal injury case can go off the rails when the plaintiff’s medical experts offer opinions that conflict with one another. This may typically arise where one expert for the plaintiff opines that a particular injury was caused by the subject accident and yet another expert questions whether the injury is indeed related.

Under Pennsylvania Rule of Evidence 702, titled “Testimony by Expert Witnesses,” it is provided, that “a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion” if the expert’s specialized knowledge is beyond that of a layperson and such knowledge will assist the jury to understand the evidence or determine a fact in issue.

Generally speaking, the admissibility of expert opinion is a matter left largely within the broad discretion of the trial court, as in Bolus v. United Penn Bank, 525 A.2d 1215, 1225 (Pa.Super. 1987).

Where a plaintiff’s experts conflict with one another, the plaintiff is likely to be faced with a defense motion in limine seeking to preclude each expert’s opinion on the basis that allowing such evidence would only serve to confuse, and not educate, the jury.

Notably, in the separate scenario where the defense produces conflicting expert reports in a civil litigation matter, the defense may still be permitted to proceed with the expert testimony as the defense does not bear the burden of proof at trial. The remedy for the plaintiff in this regard is to point out to the jury the conflicting nature of the opinions of the defense experts in an effort to discredit the defense.

The ‘Mudano’ Rule

Under what has become known as the Mudano rule, the Pennsylvania Supreme Court in Mudano v. Philadelphia Rapid Transit, 289 Pa. 51, 60, 137 A. 104, 107 (1927), has held that the testimony of a plaintiff’s medical experts must be reasonably consistent with one another such that, with respect to the plaintiff’s experts, “there must be no absolute contradiction in their essential conclusions.” The court further stated that a plaintiff has a “duty to furnish consistent, and not inconsistent, advice—otherwise the jury would be confused rather than instructed.”

The Pennsylvania Supreme Court reiterated the Mudano rule in case of Brannan v. Lankenau Hospital, 417 A.2d 196 (Pa. 1980). In Brannan, the court cited Mudano for the proposition “that a plaintiff’s case will fail when the testimony of his two expert witnesses is so contradictory that the jury is left with no guidance on the issue, see also Menarde v. Philadelphia Transportation, 103 A.2d 681 (Pa. 1954) (The Pennsylvania Supreme Court applies Mudano rule to the plaintiff’s expert reports); see also Halper v. Jewish Family and Children Services of Great of Philadelphia, 963 A.2d 1282, 1287 (Pa. 2009) (The Pennsylvania Supreme Court applies the Mudano rule to the plaintiff’s expert reports).

Even if a plaintiff attempts to supplement his discovery responses to only identify one of the two conflicting as the only expert the plaintiff will call at trial, the Mudano rule will be implicated when the defense cross-examines the plaintiff’s expert with respect to the separate, contradictory opinion of the plaintiff’s other expert.

In such a case, the jury would still be faced with conflicting opinions by two experts from the plaintiff’s side of the matter, i.e., the very situation that the Mudano rule holds will cause the plaintiff’s case to fail. The defense argument will be that the plaintiff should not be allowed to put the court, the parties, the attorneys and the jurors through the time and expense of the trial by simply choosing to identify one expert and ignoring the contradictory opinions of his or her other expert. Such evidentiary gamesmanship should not be countenanced by the courts where the purpose of a civil trial is get to the truth of the claims and defenses asserted.

Not Applicable to Defense

The courts of Pennsylvania have rejected attempts by plaintiffs to have the Mudano rule applied to defense experts that conflict with one another. The courts have reasoned that the rule should not apply to the defense case because the defense does not bear the burden of proof at trial.

Plaintiffs may cite to the case of Smith v. German, 253 A.2d 107 (Pa. 1959), in support of an argument that the defense must produce consistent evidence in an effort to disprove causation between an accident and a plaintiff’s alleged injuries.

However such an argument has been rejected by more recent Pennsylvania appellate court decisions. In Kennedy v. Sell, 816 A.2d 1153, 1159 (Pa. Super. 2003), the Pennsylvania Superior Court stated that its “research indicates that Smith has never been cited in subsequent cases for the proposition that in all cases where a defendant challenges the causation element of a plaintiff’s case, that he must produce independent evidence of his own. In fact, we can find no case citing to Smith that applies the case to the defendant. In large part, Smith, as it may apply to a defendant, appears to be an anomaly limited to the facts of that case.”

Rather, in personal injury matters, the defense has no burden of proof on the issue of causation and, therefore, the Mudano is inapplicable to the defense evidence. As emphasized by the Pennsylvania Superior Court in the Kennedy case, when there is some evidence of other causes of a plaintiff’s alleged injuries, the burden of proving these other causes does not shift to the defense. To the contrary, as confirmed by the Kennedy court, absent special circumstances, a defendant carries no burden of proof in a civil litigation matter.

Stated otherwise, “a defendant may choose to present no evidence and may simply argue that the plaintiff has not met its burden of proof. A jury may find for the defendant in such a situation.” The Kennedy court also pointed out that the Smith decision “does not require a defendant … to present independent medical testimony specifically linking the alleged injuries to another cause.”

Moreover, it has otherwise generally been held as a principle of Pennsylvania law that an opinion offered by the party, i.e., the defendant, not having the burden of proof need not be as precise as an opinion offered by the party with the burden of proof, as in Neal v. Lu, 530 A.2d 103, 109-110 (Pa. Super. 1987).

It Comes Down to Sufficiency of Expert Evidence

It has generally been held by the courts of Pennsylvania that the effect of a conflict between the testimony of different experts called by a party is in reality a question of the sufficiency of the evidence.

In the case of conflicting expert opinions presented by a defendant not having the burden of proof, the courts will allow the issue to proceed to the jury for the jury’s consideration as to what weight to be applied to such contradictory evidence.

However, conflicting expert opinions on the plaintiff’s side of the case will often prove fatal. Such evidence fails to satisfy the plaintiff’s burden of proof, renders the plaintiff’s case speculative and, if the case were allowed to proceed to verdict, would cause the jury to engage in impermissible guesswork on the important issues presented in the case.

Accordingly, where a plaintiff’s experts conflict with one another, the courts will likely preclude such experts under the Mudano rule and then proceed to enter a nonsuit in favor of the defense due to the plaintiff’s failure to meet his or her burden of proof on the case presented. •

 

Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.

Leave a Comment March 17, 2017

Motion Denied Because of Expert Witness Testimony

Originally published in The New York Law Journal an ALM Media publication, March 13, 2017.

*Part of the ALM family of award-winning legal products and publications.*

  • Supreme Court, Nassau County, IAS Part 7
  • 601626/2014
  • Justice Arthur M. Diamond
  • For Plaintiff: For Plaintiffs: Kushnick Pallaci, PLLC.
  • For Defendant: For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

Cite as: Percora v. Bankers Standard Ins. Co., 601626/2014, NYLJ 1202780991401, at *1 (Sup., NA, Decided March 1, 2017)

CASENAME

Frank Percora and Lisa Percora, Plaintiff v. Bankers Standard Insurance Co., ACE Private Risk Services, Defendants

601626/2014

Justice Arthur M. Diamond

Decided: March 1, 2017

ATTORNEYS

For Plaintiffs: Kushnick Pallaci, PLLC.

For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

The following papers having been read on this motion:

Notice of Motion 1

Opposition 2

Reply 3

 

Defendants herein move for summary judgment to dismiss the Plaintiffs’ complaint pursuant to CPLR §3212. Plaintiffs oppose the instant application. After consideration, Defendants’ motion is denied in its entirety.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Summary judgment is the procedural equivalent of a trial and must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable. Rivers v. Birnbaum, 102 AD3d 26, 953 NYS2d 232 (2nd Dept., 2012). In considering a motion for summary judgment, the function of the Court is not to determine issues of fact or credibility, but merely to determine whether such issues exist. Id. at 42, 243.

In general, it is the insured’s burden to establish coverage and the insurer’s burden to prove the applicability of an exclusion. Great American Restoration Services, Inc. v. Scottsdale Insurance Co., 78 AD3d 773, 911 NYS2d 142 (2nd Dept., 2010). An exclusion from coverage must be specific and clear and any ambiguity must be construed most strongly against the insurer. Id at 776, 142. The test for ambiguity is whether the language is susceptible of two reasonable interpretations, and the focus of the test is on the reasonable expectations of the average insured. Id. at 776, 142-143.

The action before the Court arises out of damage to Plaintiffs’ home in Long Beach, New York, as the result of Superstorm Sandy. Plaintiffs’ complaint has a single cause of action for breach of contract. The allegations in the complaint refer to damage to Plaintiffs’ home solely caused by the high winds of the storm, only. The interrogatories of Plaintiffs attached to Defendants’ moving papers acknowledge that they did not have a flood insurance policy in place at the time the alleged damage was sustained to their home.

Defendants’ motion for summary judgment to dismiss the complaint is based upon the premise that all of the damage to Plaintiffs’ home as a result of the storm was caused by water, which is excluded from coverage under the policy. In support of this position, Defendants attach excerpts of depositions transcripts taken of Plaintiff Frank, as well as three expert witnesses disclosed by Plaintiffs during discovery. None of these transcripts are in their completed form and all have had pages from the transcript removed prior to submission herein. Defendants have not attached an affidavit or a complete deposition transcript such that would allow the Court to consider their papers to be sufficient to consider judgment as a matter of law. By reasons of this defect, the Defendants’ request is appropriately denied in its entirety. See Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 864 NYS2d 554 (2nd Dept., 2008); see also generally Marks v. Robb, 90 AD3d 863, 935 NYS2d 593 (2nd Dept., 2011).

Even assuming, arguendo, that Defendants did properly include full copies of certified depositions transcripts of the Plaintiff and/or any one of its experts, Defendants motion still cannot be granted. It appears uncontroverted by the papers that Plaintiffs did not have flood insurance for the subject property; moreover, nowhere in Plaintiffs’ opposition papers do plaintiffs suggest that damage caused by water should be covered under the policy, as the exclusion clause for water is clear. Instead, Plaintiffs argue that the damage asserted that is part of the denial of coverage by Defendants was for wind damage, which is clearly covered under the policy terms.

In reviewing the complete transcript of Plaintiffs’ expert witness Boccia, as well as the complete transcript of expert witness Wallwork, both attached to Plaintiffs’ opposition papers, there are triable issues of fact that are certainly outstanding. For example, Defendants in their moving papers suggest that both of these witnesses acknowledge that the damage to the home of Plaintiffs was caused by water only. However, the completed transcript of Mr. Boccia on pages 62 through 69 make clear that damage can be attributed to wind, or water, or both, and that damage, such as racking, can be attributed to wind alone regardless of the water damage that may have occurred to the home. Similarly, Mr. Wallwork testified that he too was able to parse out damage cause by wind alone versus damage caused by water either in whole or in part. For this reason, granting of summary judgment to Defendants would be improper, and the instant motion is hereby denied.

Given the foregoing, the parties are directed to appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on March 30, 2017 at 9:30 am.

This hereby constitutes the decision and order of this Court.

Dated: March 1, 2017

Original Source: http://www.newyorklawjournal.com/id=1202780991401?keywords=expert+witness&slreturn=20170210091937 

Leave a Comment March 10, 2017

AVOIDING THE TERM “REASONABLE DEGREE OF SCIENTIFIC CERTAINTY”

by: Dennis J. Ryan, an ALM Listing Expert

Recently, the National Commission on Forensic Science published a Views Document by the Subcommittee on Reporting and Testimony dealing with the terminology “Reasonable Degree of Scientific Certainty” or any variation of the term which may be discipline-specific.  The Commission was highly critical of using the term in testimony by forensic experts, and suggested that the scientific community should not encourage the use of this terminology. The Commission recommends abandoning this phrase, which has been used for many years in courts across the United States.  The Commission admits that there is no clear alternative to the term “reasonable degree of scientific certainty,” and they admit that work is needed in this area to strengthen terminology for expressing an expert’s opinion.

The term “reasonable degree of scientific certainty” is not defined in any standard medical or scientific journals; rather, it is a legal term that was first linked to opinion testimony in a 1969 case (Twin City Plaza Inc. v. Central Surety & Ins. Corp 409 F.2d 1195, 1203 (8th Cir. 1969). The Daubert-related cases, Daubert, Joyner and Kumho, and the Federal Rules of Evidence 702-705 do not require any similar language.  The Daubert and Frye tests serve to exclude any speculative testimony and preclude the need for any such language relating to scientific certainty.

The Commission recommended that courts discontinue using the term “reasonable degree of scientific certainty” because it could result in confusion for those involved in court cases.  The commission states: “In the courtroom setting, the phrase risks misleading or confusing the factfinder” and “has no scientific meaning and may mislead jurors or judges when deciding whether guilt has been proved beyond a reasonable doubt.” In a 2014 case in Hawaii (State v. DeLeon, 319P.3d 382, 403 (Haw.2014) the court said “trial courts should not require a ‘reasonable degree of scientific certainty’ before admitting expert opinions.”

The lack of a common definition of this word across the sciences, or even within a discipline of science, is confusing and frustrating.  If one was to assemble a room of legal professionals, there would be a host of different definitions for the term, and no common definition would result.  The same would hold true for a room of scientific scholars. A juror may, on the other hand, have a totally different understanding of the term and may equate it to finding of proof beyond a reasonable doubt.

Much work is needed to strengthen the terminology a forensic expert uses to expresses their opinions. The goal is to minimize any misleading or confusing terminology.

Leave a Comment June 29, 2016

Video Laryngoscopy Emergency Medicine Expert Witness Discusses Difficult Airway Secured with Video Laryngoscopy and an Endotracheal Tube Introducer

by: Seth Womack, MD, FAAEM , an ALM Listing Expert

CASE:  43-year-old male presents to the ER with chief complaint of vomiting blood and epigastric (upper stomach) pain.   Approximately 1 hour prior to presenting to the ER, he finished dinner with his family of 5; became nauseated and sweaty; and vomited his meal mixed with a large amount of dark red blood.  His wife states that it seemed “like a gallon!”  Pertinent past history included weekly ibuprofen use for chronic knee pain and alcohol use consisting of beer only on the weekends when he is not working.  He injured his knee due to playing frequently with his children.  On exam, he is afebrile (no fever); has blood pressure of 82/44; heart rate of 122; respiratory rate of 28; and oxygen saturation of 96% when breathing room air.  The patient appears pale, sweaty, and has some mild tenderness to palpation over his upper abdominal area.

Immediately, the patient is placed on nasal cannula oxygen with continuous pulse oximetry and telemetry.  This allows him to breath pure oxygen through his nose while the doctor can monitor the oxygen level in his blood and his heart rate and rhythm on a screen similar to a small flat screen TV.  Two 18 gauge peripheral IVs are placed and O negative blood is ordered, stat, from the laboratory to be given through the rapid transfusion warming unit.  Pantoprazole and octreotide boluses and drips are ordered.  Pantoprazole is a medicine given through an IV that reduces acid in the stomach.  Octreotide is a medicine also given through an IV that reduces pressure in the veins of the esophagus.

This patient is in hemorrhagic shock (low blood pressure due to bleeding somewhere in the body).

His blood pressure is 95/54 after two units of packed red blood cells.  His wife brings his children in the room to see him briefly, and the ER doctor walks out to call the gastroenterologist.  The ER doctor has a strong suspicion that the patient has upper GI bleeding from ruptured esophageal varices (veins in the esophagus have burst and are bleeding).

This condition often requires emergent intubation (patient placed on a ventilator or breathing machine) by emergency room physicians in order to protect the patient’s airway from the rapid upper GI bleeding that could be aspirated or sucked into the patient’s lungs.

Minutes later, the ER doctor goes back into the room to report to the patient that the gastroenterologist is on his way in only to find the patient has begun to vomit a copious amount of dark red blood.

The ER doctor decides to secure the patient’s airway to prevent aspiration of blood.  He suspects this will be a difficult airway due to the patient’s obesity and active bleeding into the patient’s airway.  He calls for drugs to sedate and paralyze the patient as well as the video laryngoscope (VL).  After the patient is sedated and paralyzed, the VL is inserted into the patient’s oropharynx (upper airway).  The VL provides a sufficient view of the vocal cords and trachea but only for approximately a 4 second window.  The oropharynx fills up with blood, and the VL has to be removed quickly to be wiped free of the blood that obscures the small camera.  To make the airway even more difficult, the patient has a short neck and jaw with vocal cords in a high, anterior position.  The endotracheal tube (tube through which the patient will have oxygen delivered) stylet that is made specifically for the VL is insufficient to direct the endotracheal tube between the patient’s vocal cords into his trachea in order to secure his airway.  Meanwhile, the patient’s oxygen saturations are falling.  He cannot be ventilated (oxygen being pushed manually into the lungs) and oxygenated back up to life sustaining levels due to blood obscuring his airway and potentially being pushed into the patient’s lung with bag valve mask ventilation (mask and oxygen bag placed over the patient’s face to manually breath for him).  The ER doctor knows he has one last chance and seconds before having to perform an emergent cricothyrotomy (cutting a hole in the patient’s neck and trachea to insert a tube by which to breath for the patient), which is not best for the patient.  With one last chance, the doctor secures the patient’s airway with video laryngoscopy and an ETI (endotracheal tube introducer).

This rigid piece of elongated blue plastic has more likely than not saved this patient’s life.  The ETI has prevented an emergent cricothyrotomy from occurring.

ER doctors would benefit to be familiar with the process of securing a difficult emergent airway by using video laryngoscopy with ETI assistance.

Terminology: 

  • ETI: endotracheal tube introducer, also commonly named “bougie” or “gum elastic bougie” in the emergency room.  Calling the ETI a “bougie” is a misnomer when using it to secure an airway.  Stedman’s defines bougie as a cylindrical instrument, usually somewhat flexible and yielding, used for calibrating or dilating constricted areas in tubular organs, such as the urethra or esophagus; sometimes containing a medication for local application.  Basically, the ETI goes where the endotracheal tube cannot and then provides a pathway for the endotracheal tube to follow.

Equipment:

  • Video laryngoscope
  • Endotracheal tube of appropriate size
  • ETI (endotracheal tube introducer)

Indication: 

  • Failure at securing airway by traditional video laryngoscopy with ETT (endotracheal tube) and accompanying stylet

Technique: (assuming the patient has been correctly prepared for intubation)

  • Bend the ETI to approximately 45 degrees at a point 8 cm proximal to the distal tip and hold it with dominant hand.
  • Hold the VL with non-dominant hand.
  • Have assistant standing at the side of your dominant hand with the ETT.
  • Insert the VL into the oropharynx and obtain clear view of the vocal cords on the video monitor of the VL system.
  • While holding the VL steady, advance the ETI into the oropharynx until the distal end can be seen on the video monitor.
  • Advance the ETI between the vocal cords and into the trachea until mild resistance is felt, then stop advancing. Resistance is usually met at 24-40cm from the teeth.  Make a mental note of the number at teeth or lip level of the patient.
  • While viewing the ETI between the vocal cords and holding both the VL and the ETI steady, have assistant thread the ETT over the ETI until the ETT is at the level of the intubator’s dominant hand.
  • At this point, have the assistant hold the ETI at the point just proximal to the proximal end of the ETT and grasp the ETT with dominant hand.
  • By looking at the video monitor, confirm that the ETI is between the vocal cords. Also, confirm that the ETI is at the previous noted number at teeth or lip level.
  • Gently advance the ETT while the assistant holds the ETI stationary. The ETT may become lodged on the epiglottis (a thin plate of flexible cartilage that protects the airway when swallowing).  This complication is usually overcome by twisting the ETT along the axis of the ETI while advancing the ETT.
  • When the ETT has been advanced appropriately, hold it in place firmly and have the assistant withdraw the ETI.
  • Inflate the ETT balloon and proceed with traditional ETT placement confirmation.

Over the last decade, video laryngoscopy has become an invaluable tool to emergency physicians.  VL has made the difficult airway as defined by using direct laryngoscopy (viewing a patient’s airway with just the human eye) not so difficult anymore.  However, a clinician can still encounter a failed airway with the use of VL.  The doctor can reduce his or her chances of failing to intubate a patient by adding the use of an ETI to his or her airway algorithm.

Seth Womack, MD, FAAEM is a Board Certified Emergency Medicine Physician in active clinical practice at a level 1 trauma center.  He is licensed in both Louisiana and Texas.  Dr. Womack’s undergraduate degree is in biomedical engineering.  In addition to his busy clinical practice, Dr. Womack serves as an emergency medicine expert witness. He can be contacted at Seth Womack, MD FAAEM; 16623-C FM 2493, PMB #408; Tyler, TX  75703; womackmd@gmail.com; (414) 218-4310 (Cell).

Leave a Comment May 20, 2016

Shippers That Load Cargo May be Responsible for Injuries

by Terry E. Morgan, DLP & CTL-AST&L & Surface Transportation Board Practitioner and an ALM Listing Expert

Case Synopsis:

A contracted truck driver was injured while making a delivery to a large department store. A large heavy carton which had been loaded on the top of other freight began to fall from the top of the load on the driver. When he attempted to deflect the falling carton away from hitting his head and upper body, he was severely injured. The trailer he was unloading had been loaded by the department store’s employees at their distribution center.

Expert Analysis:

1) The load remaining on the trailer was stacked almost to the roof of the trailer.

a) Any goods stacked on top of the load and forward of the end of the remaining load would not have been visible to the driver. The front portion of the trailer where the shipment that fell was located, would not have been well lighted.
b) The large heavy carton was placed on top of lighter weight goods without securing it in place or providing any warning of this hazard. A distribution center manager, stated that the distribution center’s procedure is to put heavy items on the bottom and light items on the top when loading cargo equipment. Thus, the distribution center did not follow their own procedures in loading the trailer.
c) One of the distribution center managers stated that loaders are to be trained in “proper loading techniques,” which includes loading in a manner that will prevent injuries to people who are loading and unloading. He further stated that they are responsible for safety.

2) The distribution center had a duty to load trucks in such a manner that the load was secure for the rigors of transportation and was safe for unloading.

3) The distribution center had exclusive control over the loading of the cargo and retained or exercised control over the details of the performance of the work. The unstable and unsecured, large heavy carton in the driver’s trailer, would not have been readily apparent to him through ordinary observation. The large heavy carton represented a hazard perched high above the driver’s head, deep within the trailer and camouflaged among the multitude of other packaged products around it.

a) It is well recognized in the trucking and distribution industries that shippers who improperly load cargo where the defects are latent and not apparent upon reasonable inspection may be held liable for injuries and damage caused by their negligence.
b) The driver was not permitted to observe loading of the trailers they were required to haul nor inspect their loads before leaving the distribution facility.
c) Shifting loads and falling cargo are a well recognized hazard in the loading and unloading of cargo carrying vehicles.
d) The driver testified that drivers are not permitted to complain about any defects in loads.
e) These shipments would be described as “Shipper Load and Count” shipments and the bill-of-lading should be marked as “SLC,” confirming they were “Shipper Load and Count.”
f) The carrier is not liable for loss or damage, except in the case of negligence, for shipments noted as being “SLC.”

4) It is my professional opinion when a shipper delivers goods for shipment, it impliedly warrants that the goods are fit for shipment and are properly packed. The driver’s injuries were occasioned solely by act or fault of the department store distribution center’s loaders.

Result:

This case was settled prior to trial.

 

DISCLAIMER: This article is not intended to be legal advice. It is only intended to be information based on the experience of the author and only under the specific circumstances contained herein. Consult with a qualified attorney to determine how the issues outlined above may apply to your specific circumstances.

Leave a Comment May 16, 2016

Forensics in Government Labs: A Dying Breed

by Dennis Ryan, an ALM Listing Expert

Forensics in government laboratories in the United States is undergoing a transformation.  The transformation began within the last ten years and principally involves the comparative science disciplines that were a mainstay in many government labs.  The comparative sciences includes, but is not limited to, impression evidence, paint examination, fiber examinations and questioned document examination.  With declining funding for salaries and equipment, lab administrators have been forced to choose between DNA and the comparative sciences.

Many of the comparative sciences provide investigative leads that otherwise would not be encompassed by a DNA examination.  For instance, a robbery demand note will be processed for DNA rather than be subjected to a questioned document examination for the possibility of indentations.  In a sexual assault case, a fiber examination may assist in placing the defendant at a specific location.  Tape lifts for fiber examinations are collected by rarely if ever subject to a forensic fiber examination.  Anonymous threat letters are also rarely subjected to a questioned document examination.  When is a forensic paint examination conducted on automotive parts left as the scene of an auto accident to determine the year and make of the automobile that left the scene?  It is likely that that evidence will be put in the long term storage of the government evidence vault never to be examined or seen again.

Specialization in forensic science has also contributed to the decline of forensic science in government laboratories.  The days of the trace evidence analyst doing different types of examinations is long gone; one analyst will do the paint examination, while another analyst will do the footwear impression and another analyst will do instrumental analysis.  While specialization is a positive for forensics, the municipality that funds the forensic laboratory has not funded for this specialization and fails to see the need for the additional analysts.  Many forensic laboratories have met the need for specialization by either informing their “customers” that they no longer offer those services (handwriting examination, fiber examination) or subcontracting with an outside laboratory or forensic scientist.  A majority of government laboratories subcontract some, if not all, of their forensic services.  One of the reasons for the subcontracting phenomenon is all about turnaround time.  Many government laboratories have gone from turnaround times of three or four weeks to three or four months.  Many government laboratories work on the premise that they will examine evidence only when needed for court.  A call to the government laboratory from an investigator or prosecutor will be needed in order to put their case in the queue.  The alternative for the investigator or prosecutor is to reach out to an outside contractor, especially if the prosecutor is looking for a short turnaround time.

Laboratory accreditation has also contributed to the transformation of the government forensic laboratory.  Cases that used to take an hour or two hours are now taking double that time.  This contributes to the backlog of cases in the laboratory.  While accreditation is a positive factor, many administrators of government laboratories have not “wrapped their head” around the whole accreditation issue.  Many administrators are taken aback when faced with regulatory control from an outside accreditation body.  There are other administrators who look at the accreditation body and react by letting the accreditation body “drive the train” and set the goals and objectives for the government laboratory.  Accreditation should be a cooperative effort between laboratory personnel and the accreditation body.

There are efforts from many different fronts to increase the funding to forensics and forensic laboratories.  Only time will tell if it is too little too late, or if the transformation will yield a better, more effective structure of the government laboratory.

Leave a Comment September 22, 2015


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