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In three recent decisions, courts in North Carolina, Florida and Kansas have expressed displeasure with ... extra-judicial attempts by the medical profession to police its own members. This article looks at these recent cases and the impact of those cases on expert witness testimony in medical malpractice litigation.

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For the second time in less than a decade, a report by the Institute of Medicine (IOM) was released in July. The previous IOM report on the subject, released in 1999 and titled, 'To Err Is Human,' rocked the medical community when it estimated that 44,000-98,000 Americans die each year as a result of medical errors. Similarly, the report released in July documents significant shortcomings in the provision of medical services in this country and startlingly points out that medication errors continue to harm at least 1.5 million people every year. According to the new report, the problem is so serious that, on the average, a hospital patient is subject to at least one medication error per day. The IOM estimates that the additional costs of treating medication-related injuries ' those occurring in hospitals alone ' can conservatively be estimated at $3.5 billion per year. At least one quarter of all such injuries are apparently preventable.

You have a big trial looming; let's say an infant death or quadriplegia case. You think the medicine is sound, your experts are comfortable with their positions and the client wants to go forward. At the same time, the injuries to the plaintiff are substantial. Do you 'roll the dice' with a jury, or do you settle for a 'reasonable amount'? This is the dilemma faced by medical malpractice lawyers every day, and the decisions required here are not easily made.

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When a doctor obtains insurance from more than one carrier and both policies contain language along these lines ' 'Insurance under this coverage is excess of and payable only after all other valid insurance limits of coverage have been exhausted' ' which will be deemed the primary policy and which the excess policy? Or will they each cancel the other out? The answer will depend on myriad criteria, including the specific language of the policies, the amount the insured paid for coverage and whether one policy identifies the other insurer as the primary insurer.

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