Your response to that title is “Tell me something I don’t know,” right? This is black-letter law! Unfortunately, as every litigator knows, sometimes trial judges make decisions that are simply incomprehensible – decisions that fly in the face of well-known legal principles. Fortunately, appellate courts (usually) set things right.
When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc.
This is a tricky one. In Hirchak v. W.W. Grainger, Inc., https://ecf.ca8.uscourts.gov/opndir/20/11/192642P.pdf (8th Cir. 11/17/2020), the plaintiff was injured at work when a web sling broke and dropped a load of steel tubing on him. The plaintiff couldn’t sue the manufacturer, Juli Sling Co. Ltd., because it’s a Chinese company, not subject to the jurisdiction of American courts. So he sued W.W. Grainger, Inc. (“Grainger”), which had allegedly sold the Juli sling to the plaintiff’s employer, Weiler, Inc.
Most of the attorneys who contact us are looking for a testifying expert. Presumably that’s because many experts won’t testify (for all kinds of reasons), but are willing to assist attorneys in understanding and preparing cases for litigation, which makes finding consultants easier for attorneys than finding testifiers. Nevertheless, sometimes attorneys do need our help obtaining a consulting expert, and sometimes they even want one of each.
I’ve been in the expert referral business for 15 years, during which I’ve recommended consulting and testifying experts to hundreds of attorneys. I’ve had my share of misses – i.e., either the attorney didn’t engage an expert I recommended, or an expert failed to satisfy the attorney and was replaced. But in the large majority of cases, the expert I recommended was retained and met or exceeded the attorney’s expectations.
I recently had occasion to refer a neuro-ophthalmologist to Jason Rubin, a plaintiffs’ attorney in New York who is one of my regular clients. The plaintiff/patient had increased intracranial pressure (the reason is not important here) that was affecting her optic nerves, with resulting visual impairment. She eventually had a ventriculoperitoneal shunt inserted to relieve the pressure, but by that time she had very significant vision loss that got even worse postoperatively, and she ended up with severe, permanent vision loss. The issue requiring the expert’s opinion was whether earlier p
Revisiting an old blog is often a useful exercise. For us at Vident, this particular post is always relevant, because our business is providing experts, and we’re always focused on the “why” as well as the “how” when we promote our services. So if you haven’t seen this one, or even if you have, it’s a useful reminder of why we do what we do and how completely you can rely on us to do it right.
We are pleased to introduce Douglas J. Blair, an expert in the field of electronic medical records (EMR). Doug is a fellow of the American College of Medical Practice Executives and a Certified Professional with the Health Information Management Systems Society.
We are pleased to announce that Barry N. Feldman, PhD has joined our panel of experts. Dr. Feldman is a nationally recognized educator, trainer, researcher, and clinical expert in the field of suicide intervention and prevention. He specializes in suicide-related training, critical incident response, and crisis stabilization services for schools, military, law enforcement, emergency medical responders, healthcare providers, veterinary medical practitioners, and other professionals.
(Dr. Stephen Thornton is board certified in emergency medicine and medical toxicology and is one of Vident Partners’ leading experts in those fields. For more information about him, see https://www.videntpartners.com/blog/2020/emergency-medicine-medical-toxicology-expert-witness.)