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Affidavit of Merit: How to Write One & Advice for Physician Expert Witnesses Involved in Medical Malpractice Cases

Advice on how to write an affidavit of merit in a medical malpractice case from a former medical malpractice attorney.

by Nadine Nasser Donovan, Esq. Medical malpractice actions are unusual in that many states require patients (i.e. plaintiffs) to demonstrate that they have expert witness support for their medical malpractice allegations before suit is filed. Such requirements are grounded in either state statutes or regulations. These rules are designed to discourage frivolous malpractice lawsuits and encourage pre-suit settlements of claims.

Life Care Plan: Consulting with Treating Physicians

Steven Babitsky, Esq. The United States District Court, M.D. Louisiana dealt with a slip and fall case and the life care plan of Aaron Wolfson, PhD. Dr. Wolfson spoke to the treating physicians and then sent a letter to each doctor, recording the need for future medical treatment of the plaintiff. The court held that the procedure followed by Dr.

Life Care Planner: Life Expectancy

Steven Babitsky, Esq. The United States District Court, D. Puerto Rico dealt with a motion to set aside or reduce a jury award of $12,966,000 for a child born with cerebral palsy due to medical negligence. The court upheld the verdict despite the lack of expert testimony on the issue of life expectancy. The court stated: With respect to the

When Counsel Opens the Door on Cross-Examination

Steven Babitsky, Esq. Opposing counsel may make a mistake during cross-examination of an expert witness. Experienced expert witnesses know how to take advantage of these opportunities. Here is how two experts capitalized on the mistakes of opposing counsel. “Sometime ago I was asked to be a defendant’s expert witness in a medical malpractice case. The allegation was that the urologist

What Expert Witnesses Can Do When Opposing Counsel Takes Material Out of Context

Steven Babitsky, Esq. Counsel may, during cross-examination of an expert witness, take a statement out of context before the jury. The expert needs to be ready to take advantage of this opportunity. Here is how three expert witnesses explained how they effectively dealt with their opportunity. 1. “The defense attorney asked me to comment on the opinion of defense’s medical

Expert Witnesses Strike Back

Steven Babitsky, Esq. Experienced expert witnesses can and do selectively strike back against opposing counsel during their cross-examination. Here is how some expert witnesses described their experiences. 1. “Q: Doctor, when you take a medical history, are there specific techniques you use to get the answer you want out of a patient? A: I did not go to law school,

Courts Employing Virtual Litigation

Steven Babitsky, Esq. State and federal courts are encouraging and, in some cases, requiring litigants to proceed with virtual litigation. Hearings In Madonna Ciccone v. One West 64th Street Inc., the Supreme court New York County 6514748/2016 9/4/2020, the court required, due to Covid-19, that a fee hearing must go forward by videoconference. Bench Trials In Flores v. Town of

Virtual Bench Trial Approved

The U.S. District Court E.D. New York dealt with a request for a virtual bench trial in a voting rights act case. The court granted the request for the virtual bench trial and stated: In terms of good cause, plaintiffs argue that “COVID-19 creates perhaps the most compelling circumstances in history in favor of conducting this trial remotely.” DE 188

Independent Medical Exam: Virtually or Less Remote

The U.S. District Court D. New Mexico dealt with the plaintiff who was in an automobile accident. The plaintiff was travelling in New Mexico at the time of the accident but lives in Kentucky. The defendant sought to have the plaintiff, who has Multiple Sclerosis, travel back to New Mexico for the IME. The court rejected this request, due to

Introverts Make Excellent Expert Witnesses

Steven Babitsky Esq. One of the biggest misconceptions about who can become an effective expert witness is that you need to be an extrovert to do this well. Over the course of my career I have talked to hundreds of experts in all fields who essentially said the same thing: “I am an introvert and probably not cut out to