Expert Affidavits — Professional Malpractice

Expert discovery is fraught. One of several conundrums is whether to provide robust written expert disclosures. In some jurisdictions, parties are not required to provide any meaningful written disclosure. There are pros and cons to written disclosures. For several reasons, though, I believe that in most jurisdictions, on balance, a party is much better off providing a robust, detailed written disclosure than waiting for the party’s expert to make his or her disclosure at a deposition conducted by the opponent. (Oregon state courts are an exception.)

If you’ve decided to have an expert provide a robust written disclosure, the next questions are (a) what form the disclosure should take, and (b) what process you should use to obtain the written disclosure. Both of these questions, too, are fraught. Each form of disclosure has its own pros and cons; and the process of obtaining it must be carefully managed to protect the integrity and credibility of both the expert and the attorney.

For a number of reasons, I prefer to have experts provide affidavits when that’s practical. That’s the most expensive approach, both in time and money, and it’s the most difficult to manage the process. But when done well, an affidavit provides the strongest, most useful form of disclosure. (“When done well.” When done poorly, an affidavit can become a liability for both the expert and the attorney.)

Sample Documents

I obtained the following expert affidavits through a lengthy process in which the experts worked through the issues and evidence meticulously. The affidavits themselves are open and transparent about my involvement in the process.

Affidavit of Dr. Howard Steinman (re. failure to diagnose and treat skin cancer)

Click here for a pdf. Click here for a text-only version.

Affidavit of Dr. Martin Lutz (re. inapplicability of “Emergency Medical Care” standard)

Click here for a pdf. Click here for a text-only version.

Affidavit of Dr. Kalman Blumberg (re. causal relationship between failure to treat spine tumor and subsequent disability)

Click here for a pdf. Click here for a text-only version.

Expert Affidavits — Healthcare Administration Generally

In some jurisdictions, lawyers and judges still struggle with the fact that healthcare administrators have an important impact on patient safety and that their negligence may contribute to the harm done to a patient. For several reasons, it can be useful to put expert testimony into the record, simply to explain the basics of healthcare administration and patient safety. The following expert affidavits reflect an effort to do that.

Sample Documents

Affidavit of Dr. Jonathan Burroughs

Click here for a pdf. Click here for a text-only version.

Affidavit of Dr. Peter Mowschenson

Click here for a pdf. Click here for a text-only version.

Motions to Strike Complaints: Plaintiff’s Responses

Full, detailed complaints make a lot of defendants and defense lawyers uncomfortable. If they are required to answer such a complaint, the defense is forced to admit, deny, or claim ignorance of each fact alleged in the complaint. That can be uncomfortable. Obviously, therefore, the go-to move of the defense is to evade — try to avoid giving any meaningful response. That’s not a great solution for the defense, either, because evasion is usually seen for what it is — dishonesty and bad faith (and a tacit admission).

For these reasons, the defense’s first attempt at evasion may be a motion to strike the complaint — to avoid even having to file an answer to it. Here’s the briefing on two such motions.

Sample Documents

Jones v. Piedmont

Defense opening brief: Click here for a pdf.

Plaintiff’s response: Click here for a pdf. Click here for a text-only version.

Brown v. St. Francis

Defense opening brief: Click here for a pdf.

Plaintiff’s response: Click here for a pdf. Click here for a text-only version.

Motions to Dismiss Negligent Administration Claim: Plaintiff’s Responses

As I said above, some lawyers and judges still do not understand how negligent healthcare administration contributes to patient harm from medical malpractice. So a negligent administration claim may draw a motion to dismiss. Here’s the briefing on a couple examples.

Sample Documents

Holloway v. Emory

Defense opening brief: Click here for a pdf.

Plaintiff’s response: Click here for a pdf. Click here for a text-only version.

Robinson v. Wellstar

Defendant Wellstar’s opening brief: Click here for a pdf.

Defendant Quantum’s opening brief: Click here for a pdf.

Plaintiff’s response: Click here for a pdf. Click here for a text-only version.

Defendant Wellstar’s reply: Click here for a pdf.

Emergency Department Cases: Motion to Preclude a “Gross Negligence” Instruction

Some states have laws that make it harder for a plaintiff to win a medical malpractice case when the case involves emergency medical care. The specific language of such statutes is important. It may cover a smaller category of cases than we conventionally assume.

The documents below set forth my argument that Georgia’s statute covers only a sliver of emergency department cases — not, as we often assume, the bulk of such cases.

Sample Documents

Barnett v. Hamilton

Plaintiff’s opening brief: Click here for a pdf. Click here for a text-only version.

Defense response & counter-motion - brief: Click here for a pdf.

Defense response & counter-motion - statement of facts: Click here for a pdf.

Plaintiff’s reply brief: Click here for a pdf. Click here for a text-only version.

Defense Sur-reply: Click here for a pdf.

Depositions & Exhibits

I tend to take thorough depositions. And I make fairly heavy use of demonstrative exhibits that I create along with the witness. Written demonstratives have a variety of potential uses, both within the deposition and later. I especially like demonstratives with written statements, because they help to dispel the fog of blather that often surrounds oral admissions.

Sample Documents

Deposition of Dr. Abrar Chaudhry: Click here for a condensed pdf. Click here for simple text.

Exhibits to deposition: Click here for a pdf collection of the exhibits.

Defense Summary Judgment Motions: Plaintiff Responses

Sample Documents

Jenkins v. Northside

Amerson defense opening brief: Click here for a pdf.

Cooper defense opening brief: Click here for a pdf.

Hughes defense opening brief: Click here for a pdf.

Meredith defense opening brief: Click here for a pdf.

Northside defense opening brief: Click here for a pdf.

Plaintiff’s omnibus response brief: Click here for a pdf. Click here for a text-only version.

Plaintiff’s omnibus response to statement of facts: Click here for a pdf. Click here for a text-only version.

Northside defense reply brief: Click here for a pdf.

Accountability for Medical Experts

There are fair arguments, and then there’s dishonesty. When I think an expert has crossed that line, I call them out on it.

Sample Documents

Dr. Louis Guzzi — Motion for Sanctions

Plaintiff’s opening brief: Click here for a pdf. Click here for a text-only version.

Defense response: Click here for a pdf.

Plaintiff’s reply: Click here for a pdf. Click here for a text-only version.

Exhibits to Plaintiff’s reply — affidavits: Click here for a pdf.

Exhibits to Plaintiff’s reply — literature summary: Click here for a pdf.

Dr. John Kendall — Ethics Complaint

Click here for a pdf.

Real-Time Documentation of Insurance Bad Faith

For a plaintiff, it is important to document bad faith by the defendant’s insurer — and to do so contemporaneously, rather than waiting for a verdict in the case. Real-time documentation will help to prove the truth in the event of later litigation over the bad faith. My preference is to do this through letters to defense counsel, plainly explaining what the insurance company is doing.

The examples below spurred the defense to file a (frivolous) motion for sanctions against my firm. I interpret that motion as a brush-back pitch, to deter me from further documenting insurance bad faith in that case or other cases. To be fair to the defense, though, while the judge denied the motion for sanctions, the judge did say that my letters were “borderline abusive.” I disagree. I think the letters truthfully described the insurer’s conduct and its likely consequences, without invective or exaggeration. Nonetheless, the judge’s statement is a useful reminder to account for the varying sensibilities of all potential audiences.

Sample Documents

See the letters in this pdf document, particularly those starting at Exhibit 1.8 (page 33 of the pdf).

The subsequent motion for sanctions is here.

My response to the motion is here (pdf) and here (text-only). My accompanying affidavit is here (pdf).