Ongoing Vioxx trial follies:
Her attorneys had called Dr. Michael Graham as an expert to say that Vioxx could cause blood clots in that short a time and had caused the one that brought on Irvin’s fatal heart attack in 2001.But U.S. District Judge Eldon E. Fallon ruled late Friday that Graham wasn’t qualified to do that. He wrote that the doctor has no pharmacology training, isn’t qualified to explain how Vioxx might cause a blood clot, has never prescribed it, and got most of his knowledge about the drug in an eight-hour review of medical articles, expert reports and trial transcripts.
That’s the best expert the plaintiff can come up with?
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{ 22 comments }
Bravo for the judge. Unfortunately I understand that this only happens in federal court and not in state courts. This Dr. Graham should be investigated by the licensing board in the state he has his medical license as well as whatever specialty society he is affiliated with. These professional witnesses should be exposed for what they are and run out of town.
I am an ER doc with 7 years clinical experience and an academic position at a teaching hospital. I’ve never been asked to testify. My wife is a hematologist who does coagulation and thrombosis research. She spends her days with Lab Mice. She hasn’t seen a human patient in 4 years. She’s been asked to testify twice, once in an Emergency Medicine case involving PE. She declined both times, feeling it was unethical.
“Unfortunately I understand that this only happens in federal court and not in state courts.”
You understand this from . . . . ?
Why don’t you guys contact plaintiff’s attorneys and tell them you’ll review cases for free so they don’t have to rely on “professional witnesses”? You can become expert witnesses yourselves for the plaintiff, and if it’s a case of malpractice, you can help ferret it out.
By the way, I believe one of Merck’s experts has been struck or had their testimony limited in at least one trial.
Is it still a “folly” if it happens to the defense, Kevin? Should we investigate that expert? Refer them to the state board?
“Why don’t you guys contact plaintiff’s attorneys and tell them you’ll review cases for free so they don’t have to rely on “professional witnesses”? You can become expert witnesses yourselves for the plaintiff, and if it’s a case of malpractice, you can help ferret it out.”
When you repay me for frivolous lawsuits filed against me. When you give your contingency fee to the patient because it is all about taking care of their needs right? When you defend me for free.
In my state only a physician of the same specialty can be an expert witness against a physician. I am board certified ER doc and had a case without merit, liability, disability, or damages filed against me. They found an “ER doc” who was now retired, had done a year of dermatology training for her residency, and last worked in an ER in 1984. Just curious, where do you find these lowlife uncredible people and what kind of favors do you have to offer them.
“Is it still a “folly” if it happens to the defense, Kevin? Should we investigate that expert?”
Testimony of all expert witnesses from both sides should be scrutinized.
“Why don’t you guys contact plaintiff’s attorneys and tell them you’ll review cases for free so they don’t have to rely on “professional witnesses”? You can become expert witnesses yourselves for the plaintiff, and if it’s a case of malpractice, you can help ferret it out.”
This just shows you how “out of touch” you are. Can’t you understand that most of the medical community disagrees with the medical malpractice lottery in this country. I would compare testifying for the sodomite’s plaintiff attorney with being one of those Nazi sympathizers in France during World War 2. My apologies to the French.
You’re right. I guess I don’t understand. I thought physicians would want to help ferret out actual malpractice and want to know who out there is committing it. I forgot the only goal was to protect your own regardless of their actions or the harm they cause.
My bad.
CJD
“I thought physicians would want to help ferret out actual malpractice and want to know who out there is committing it. “
I am Committing it. My best friend, an ID Doc, who was valedictorian of our med school class is committing it. My Primary Care is committing it. Because what you lawyers call “malpractice” is actually just “Bad Outcomes”, or “medical errors” and we all have patients who have bad outcomes, we all make mistakes. Us Doctors know there are bad doctors out there, but that has no corellation with patients having bad outcomes and suing.
No wonder you’re so scared. You don’t have the slightest clue what you’re talking about.
Do all your colleagues know that you’re saying their own actions fall below the standard of care on a regular basis? More importantly, do your patients?
CJD
JH
I get so tired of hearing standard of care used with the assumption that if there’s a bad outcome it means something was done incorrectly or some standard was violated. I had a failed tubal ligation several years ago. My ob-gyn explained that he didn’t know why my tubes did what they did after being cut & cauterized but sometimes *stuff* happens (my words not his). The worst part of the whole thing was trying to get an US in a timely fashion to determine if it was a tubal pregnancy or not. TG I’m a health care professional and understood that not every outcome is perfect. Fortunate for him that I wasn’t some person sucked into the “if you’ve been harmed by blah blah blah call 1-800-sue-mnow” mentality.
Plaintiff’s attorneys always have the advantage of 20/20 hindsight.
Only non-attorneys equate standard of care with bad outcome.
I saw a patient who had a tubo-ovarian abscess. I gave her IV antibiotics and admitted her to the hospital, she didn’t get better with the antibiotics, so 2 days later, the OB-GYN had to remove her ovary. Several months later my hospital gets a letter from the insurance company. Since she had her ovary removed (obviously a bad outcome) some malpractice must have been committed. Either you drop the entire hospital bill or we contact the patient and tell her to hire an attorney and sue the 2 doctors (me and the OB-GYN). Standard of care my foot. If someone young has a bad outcome in this country, someones gotta pay.
I think us physicians have an abject ignorance about the role of expert witnesses in a medical malpractice case. Expert witnesses, with few exceptions, are required.
“One element of a cause of action for medical malpractice is proof of the standard of care by which the defendant physician’s conduct is to be measured…. (T)he appellate decisions in this State (Illinois) have held that the plaintiff in a medical malpractice action generally must establish the standard of care through expert testimony.” (Walski v. Tiesenga 381 N.E.2d 279.)
That said, it goes without saying that expert witnesses must be competent. I wonder if the plaintiff in this Vioxx trial might have, if the case is not successful, a cause of action against the attorney involved. There is such a thing as attorney malpractice. For such a high profile case, you’d think that detail would be covered.
I actually like the idea of an independent panel of physician expert witnesses. They could be vetted for competency.
By the way, I’m not a lawyer. I’m an OB/Gyn and I have had malpractice actions against me. I figure its just part of the territory.
To Anon 1:09 PM;
All tubal ligations have a risk of failure, approx. 3/1000 or 1/300. If you were not informed of that risk, that’s poor pre-op management by your surgeon.
el,
I was aware of the failure rate. My point was simply that some people left to deal with an unwanted pregnancy would (one would assume that if you’ve had a tubal you don’t want to be pregnant anymore)decide that a law suit was a good way to handle the “less than perfect outcome.” I was using that particular experience as an example of a bad outcome without violation of standard of care.
JH
To Anon 4:01 PM
since time immemorial, all abscesses need to be drained, i.e., surgery is the treatment of choice. True tubo-ovarian abscesses are treated with surgery, with few exceptions, many times with laparoscopy, with removal of the adnexa influenced by the patient’s need for future fertility in the context of the severity of the damage.
I’m sure you meant to say that you admitted a patient with salpingoophoritis or an infection of her tube(s) and possibly ovary, placed her on antibiotics, and when she didn’t improve after 48 to 72 hours, you consulted a gynecologist who took the patient to the OR and found a tubo-ovarian abscess at that time, and found it appropriate, in the patient’s best interest, to remove her adnexa. If so, you and the hospital should bill both the patient and her insurance and have no fear of any malpractice action.
No. I’m an ER Doc and I admitted a woman with a “possible” TOA to OB-GYN, they actually did the admission, when she didn’t improve in 48-72 hours, they did an exploratory laparotomy and found an abscess. They removed it, and her ovary. I don’t see how I could commit malpractice in this case, since I don’t operate.
“By the way, I’m not a lawyer. I’m an OB/Gyn and I have had malpractice actions against me. I figure its just part of the territory.”
I guesst that’s the right attitude to have. I know about 10 OB-GYNs, all early in their career (either directly or through their husbands, OB’s seem to marry ER DOcs alot) and every one wants to quit due to the malpractice crisis, especially those enjoying their first lawsuit. One of my best friends quit OB after he got named twice, while he was still an intern!
To Anon 10:05 PM
You have nothing to worry about. Probably neither do the Gyn’s.
What’s happening is a stall payment tactic by the insurance company.
A number of years ago I was sent as a local IPA representative to be part of development of a new medical insurance plan with a local insurance company. It was stated in one meeting that if expected payout exceeded receipts in a given month, then “reasons” would be given for no payment. i.e., deliberate delay. I never returned.
Several “anonymi” have decried the fact that Dr. Graham was disqualified as a witness because a judge cared enough to investigate his qualifications to serve in the case–and found them wanting. The same thing happened with a defense witness in the last New Jersey Vioxx case. Why should this incite anyone’s ire?
This is exactly what judges SHOULD do. It is what Judge Jack has done so exhaustively in the Silicosis MDL cases.
Such scrutiny is only mandated in federal courts and in courts in those states which have adopted the Daubert standard.
This is not a blow to one “side” of the bar or the other. It is a testament to the fact that the courts CAN work as neutral factfinders and not as lotteries. All witnesses should be so scrutinized, by judges who have the courage and the knowledge as well as the determination to try to make an imperfect system to work fairly for all.
All experts should be held to a code of ethics which requires that they have basic qualifications and experience, and render opinions honestly and with full knowledge of all available evidence as well as the current standard applicable in the field in which they are testifying. All qualified physicians who can tolerate the process should be willing to serve in the capacity of medical expert, serving the courts, not the lawyers. And they should be compensated reasonably for this service, not “what the market will bear”, not on contingency, but in such a way as to reflect and reimburse them for the time this takes from their regular practice.
Anyone who is truly interested in this issue and in the cause of better medical expertise should visit http://www.ccemt.org, a nonprofit membership organization which I cofounded and which WILL help to report dishonest testimony by any witness identified by a member to the appropriate bodies, REGARDLESS of which side that witness “represents” ( in itself a mischaracterization of the appropriate role of a medical expert witness). Instead of complaining endlessly about this flawed system, why don’t we do something to change it?
“By the way, I’m not a lawyer. I’m an OB/Gyn and I have had malpractice actions against me. I figure its just part of the territory.”
and
“quit OB after he got named twice, while he was still an intern!”
…and now, I’m in another field precisely because of this. I only got named once, two years after the fact on the day the SOL ran, and the plaintiff has yet to find an expert witness but the judge gave an additional year to find one….Think I’ll have my babies delivered in Canada…ain’t gonna be no OBs left in the states
I do not condone the miss use of the legal system by “sue happy” folks, but after reading many of the post here, doctors seem to feel that they are not liable for their mistakes. There is a difference between a “bad out come” and neglect. Doctors are in a position, like structural engineers, your mistakes can cost lives. If a doctor dose not double, and triple check their work their not a good doctor, and if you make a mistake like not ensuring that a clamp you place on a patient’s fallopian tube is not 1) in working order, and 2) installed in the right place and properly secured, well then you are liable for the “bad out-come”.
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