The old maxim, "the earlier the treatment, the better the outcome" has been a longtime staple in plaintiffs' collection of so-called "expert medical opinions." Let's face it -- the notion that earlier treatment is preferable, while imprecise, seems like a logical conclusion for most of us. However, the Eleventh Circuit's recent decision in McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004), establishes that such general medical principles, which are typically based on no more than the expert physician's common-sense and anecdotal experience, are far too speculative to overcome an evidentiary challenge pursuant to Daubert v. Merrell Dow Pharmeceuticals, Inc., 509 U.S. 579 (1993) and therefore fail to establish causation in a medical negligence case. This is particularly so in those cases where the defendant medical provider maintains that the plaintiff's unavoidable and unpredictable underlying condition -- and not an alleged delay in treatment -- caused the plaintiff's injury, such that the plaintiff would have experienced the same level of injury despite any alleged delay.
- June 27, 2005Victoria M. Davis and Brian R. Stimson
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June 27, 2005ALM Staff | Law Journal Newsletters |News from around the country for your review.
June 27, 2005ALM Staff | Law Journal Newsletters |The latest pharmaceutical and medical device news of importance to you and your practice.
May 26, 2005ALM Staff | Law Journal Newsletters |The opinions offered at trial by expert witnesses are running an increasingly greater gamut of scrutiny. First, they are subject to the judicial scientific reliability tests of Daubert v. Merrell Dow Pharmaceutical Inc., 507 U.S. 579 (1993). Once that hurdle is cleared and the opinion given, the experts can be sued by the party who hired them, both in tort and contract, if the opinion did not live up to the party's expectations.
May 26, 2005R. Collin MiddletonIn the recent past, nursing home residents had difficulty in recovering money damages against those facilities. In 1989, Congress enacted its Omnibus Budget Reconciliation Act of 1987, which was a major attempt at reform in the federal regulation of nursing homes. This initiative was intended to dramatically improve the health and safety of nursing home residents through extensive regulations, including the "Residents Bill of Rights," new care standards and new enforcement mechanisms. See 42 U.S.C. '' 1395, 1396 (2000).
May 26, 2005Joseph L. DeMarzo and Dana ParkerPolitics make strange bedfellows" is an election-year maxim. Sometimes, bitter rivals in primaries become allies after a convention, or forge alliances to get favored bills and "pet" proposals approved. But while politics may make strange bedfellows, it has nothing on personal injury litigation.
May 26, 2005Kevin Quinley