Medical Malpractice Bulletin – June, 2011

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Charles A. Pilcher MD FACEP

Perspective: Are you getting “value” from your experts?
By Charles A. Pilcher MD FACEP

I recently ran a “value calculation”on my services, using my charges for the past 20 closed cases on which I have been consulted. Fifteen cases were for plaintiff attorneys and 5 for defense attorneys. Click here to read more, including the average charges billed for those cases.

Also in this issue:

Therapeutic, toxic or lethal: Great resource for drug blood levels
Ever wonder how important is a drug level found in the blood of a deceased individual when viewing the toxicology findings in an autopsy report? Here’s a superb reference: Winek’s Drug & Chemical Blood-Level Data 2001 (This reference will be kept in the sidebar list of “Attorney Resources” at

Physician must accept insurer’s settlement in liability case
Settlement clause in policy upheld by RI Supreme Court
A Rhode Island obstetrician lost his appeal against his malpractice carrier after the insurer settled against his wishes. An article in AMA News by Alicia Gallegos summarizes the case nicely. The defendant claimed that he was not on call the night of a stillbirth and felt that a jury would exonerate him. Unfortunately, his insurance policy included the clause stating “The [insurance] company may make such investigation and settlement of any claim or suit as it deems expedient.” That clause is now supported by case law in Rhode Island.

Can families demand futile care be provided?
A NJ appeals court is set to rule soon on a case heard in May in which the family of a patient with terminal cancer, coma, renal failure and a feeding tube demanded the care be continued, even though doctors found the care to be futile and inhumane. More to follow.

Wisconsin Supreme Court considering issue of informed consent in stroke case
A patient presented with stroke-like symptoms that were eventually diagnosed as Bell’s Palsy after a normal CT. Additional testing options to evaluate for stroke (namely carotid ultrasound) were not offered. The patient sued after the stroke was correctly diagnosed. While the physician was found not guilty of malpractice, she was found guilty of failing to provide informed consent. The finding was upheld at the appellate court. The Wisconsin Supreme Court now has the case, which has many ramifications and potential unforeseen consequences. Editor’s note: It’s apparently ok to miss the diagnosis, but not if you fail to tell the patient how you could have done a better job. This “Bulletin” addressed this subject in a previous Perspective.

Death by a salesman: What is the role of medical device makers in the OR?
Vendors of medical devices are playing a greater role in the OR, particularly in the field of orthopedics. Most hospitals now even have a “credentialling system” to assure that the representatives of the makers of medical devices adhere to certain standards of quality and service. This article from discusses a suit recently filed in Louisiana in which the salesperson for the device maker, as well as his company, is named as a defendant.

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