Saturday, January 16, 2010

What the expert doesn't include in the expert report can be important

Expert witnesses and reports are of importance not only in patent law but also in other areas, such as medical malpractice.
Sometimes things go wrong with experts [see for example Expert witness failure. ]

In a certain wrongful death case in New Jersey, the decedent had died from diffuse large B-Cell lymphoma (DLBCL) and prior to death in December had experienced an unintentional weight loss of 32 pounds from April to July in the year of death, over 10% of body weight. The attendant general practitioner did not order any tests to look into the unintentional weight loss. To argue that no body imaging tests, such as CT, were appropriate, the expert for the defendant general practitioner cited to certain text within a journal article.

Specifically, the expert report of Dr. Robert Perkel, made on behalf of the defendant general practitioner, accepted as authoritative evidence-based literature a paper by one Dr. Huffman which appeared in the American Family Physician Vol. 65, February 15, 2002, although the expert report did not attach a copy of the paper to the expert report. Material that was in the cited paper but not referenced in the report was relevant. Pointedly, the Perkel report made an interesting omission of other text that was within the Huffman paper:

at page 645 of the paper relied upon by Dr. Perkel, the author Grace Brooke Huffman states: “A reasonable initial panel of tests in the elderly patient with unintentional weight loss includes the following: a fecal occult blood test to screen for cancer; a complete blood count to look for infection, deficiency anemia or lymphoproliferative disorder; a chemistry profile to look for evidence of diabetes mellitus, renal dysfunction or dehydration; an ultrasensitive thyroid-stimulating hormone test to look for hypothyroidism or hyperthyroidism; and a urinalysis to look for evidence of infection, renal dysfunction or dehydration. Upper gastrointestinal studies (radiography or endoscopy) may be warranted in patients with symptoms referable to the gastrointestinal system or in patients with persistent weight loss.”

In fact, the defendant general practitioner had not made the tests which were deemed reasonable within the Huffman article, but Dr. Perkel did not mention the "reasonable initial panel of tests" in his expert report, or the failure of these tests to be performed. Judged by the standards of what Dr. Huffman said should be done, one may observe there is no evidentiary dispute that the defendant doctor did not perform the tests recommended by Dr. Huffman to look into the origins of decedent's unintentional weight loss. Thus, one may assert that there is no factual dispute that the defendant did not meet the standards of care (accepted by defendant’s own expert in accepting the Huffman paper) of a reasonable general practitioner/doctor of osteopathy at the time of treatment.


David Freddoso of the Washington Examiner wrote on Feb. 8 of Congressman Murtha's death:

In a television interview this afternoon, Democratic Tennessee Rep. Steve Cohen pronounced judgment on the doctors who were operating on Rep. Jack Murtha, D-Pa., when he died. Cohen, a government attorney before he began his political career, was asked about tort reform in health care when he brought up Murtha's death:

"As we speak today, Rep. John Murtha died. And he was my friend, and he served this country for many years...He died because, when he went in for gall bladder surgery, his intestine was perforated. And that shouldn't have happened. It was, from what I understand, malpractice."


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