Tuesday, October 26, 2010

Ten Things Your Expert Forgot to Tell You

Check out this helpful article from the ABA Litigation Section.

I personally once called someone to see if they would review a case.  His assistant seemed surprised at my request.  I then looked him up on the Medical Board site and found that he was under Board Order for abusing anesthesia drugs and had once been found passed out in an OR after self-administering drugs.  Lesson:  Always check licensure status before making the first contact!

Sometimes we get so enamored with our experts and their helpful opinions that we look at them as opposing counsel or the jury would.  A good practice would be to spend as much time researching your own experts as you do researching those retained by the opposing side.  While these aren't the most "fun" topics to discuss with your retained experts, finding out this information well in advance of a designation deadline could save you time and embarassment later in your case. 

My thanks to Francisco Ramos, Jr. for his great article. 

Thursday, October 14, 2010

1st COA--Tien v. Alappatt; expert report; disclosure of risks

In this memorandum opinion, the COA held that Tien was required to file an expert report, despite his claim that no report was required because his claim cetnered on disclosure of the risks of a surgical procedure. 

Tien filed suit against Dr. Alappatt, claiming that Dr. Alapapatt should have disclosed the risks of a pan-retinal photocoagulation (PRP) on his eyes.  Tien filed an expert report.  Dr. Alappatt moved to dismiss because the report was insufficient.  The trial court agreed and dismissed the case with prejudice. 

On appeal, Tien did not argue that the report was sufficient; instead, he claimed that he did not need to file a report because of the nature of his claims.  He said that because the Texas Medical Board required certain disclosures that were not made, no expert report was required.  The COA referred to Supreme Court authority that has held that an action alleging a physician's failure to inform a patient fully of the risks of surgery is a negligence claim governed by the procedural requirements of the Medical Liability Act.  Because he failed to file a sufficient expert report, the trial court properly dismissed Tien's claim. 

See the opinion at Tien v. Alappatt.