Cross-Examination Of An Expert Medical Malpractice Witness In An Erbs Palsy Case

I had the privilege of questioning an expert in an erbs palsy case last week. In Federal Court the parties are permitted to question experts prior to trial in the form of a deposition (a question and answer session with the attorneys present). The expert, after reviewing the records prepares a written report that descirbes his evaluation of the records, his opinions, and the bases for his opinions.

In the case I had, the expert was a world reknowned expert in maternal-fetal medicine; a subspecialty of obstetrics & gynecology. The expert's curriculum vitae (CV) was over 40 pages long. In my first set of questions to the expert, I told him quite honestly I was very impressed with his CV. He literally had published hundreds of articles, chapters in textbooks, abstracts, and presentations. Yet in all the hundreds of articles and publications to his name, he didn't have a single publication about the issue directly involved in this case. He hadn't done any studies on the issue of shoulder dystocia, erbs palsy, or the diagnosis, treatment or prevention of shoulder dystocia and erbs palsy.

Also look to the witness' clinical experience and current status at their hospital. This expert who was going to be giving opinions about whether doctors at a hospital in New York rendered the appropriate medical care hadn't done a vaginal delivery in a long time. Nor had he had any recent experience with shoulder dystocia, or any deliveries where erbs palsy was diagnosed at the time of delivery.

POINT:

Even though your opponent produces a well-known expert against you, pay careful attention to just what the witness is an expert in. A careful review of his CV often reveals plenty of fodder for cross-examination.

LOOK AT THE BASIS FOR EACH OF THE CONCLUSIONS THE EXPERT HAS REACHED

If the facts upon which the expert rendered an opinion is inaccurate or faulty, then his conclusion will also be faulty. It is the obligation of every attorney to whittle away those inaccurate facts that the opposing expert has relied upon, to show that this experts' opinion is no longer valid.

"Doctor, assume that Mrs. Jones testified that she had pressure placed upon her belly during her labor. Would you agree that fact would be most consistent with the application of supra-pubic pressure? Would you also agree that the only time supra-pubic pressure is used is when there is a shoulder dystocia? If Mrs. Jones' recollection of pressure being applied to her belly is correct, then you'd agree that this is evidence of shoulder dystocia?"

"Now doctor, in your conclusions, you felt that there was no evidence of a shoulder dystocia based on the information in the medical record, correct? However, you'd agree that the individual who delivered this child made very few notes in the record, and in fact the record is devoid of any mention of shoulder dystocia, correct? Yet, you decided to base your conclusion on a record that was missing a great deal of information?"

"Isn't it true doctor that another physician testified that McRobert's maneuver was used during the delivery? You discounted what this witness had to say, didn't you? If you had credited what he said- and he was actually in the delivery room, you'd agree that his statement that McRobert's was used, together with mom's testimony that pressure was placed on her belly, would strongly suggest that a shoulder dystocia was present, correct?"

"If shoulder dystocia is present then that person doing the delivery is obligated to call for help, for the senior-most doctor to help with maneuvers to get ths child delivered without putting excessive traction on the baby's head. You'd agree that excessive lateral traction, in light of a shoulder dystocia can cause, and in fact is the most likely cause of erbs palsy."

KNOW THE MEDICINE

In any malpractice case, you must become familiar with the medicine involved in your case. You must become a mini-expert in the narrow topic of medicine in your case.

In an erbs palsy case, the attorney must know the basics:

Shoulder dystocia, erbs palsy, brachial plexus injury, McRoberts, Woods-corkscrew maneuver, cutting an episiotomy, sweeping the posterior arm. fracturing the clavicle, the zavanelli maneuver, sonogram, intra-uterine anomalies, maladaptation, malalignment, cervical dilitation, normal progression of labor, first stage of labor, second stage of labor, apgar scores, lateral traction, downward traction, gestational diabetes, glucose tolerance test, maternal obesity, ACOG statement on shoulder dystocia (American College of Obstetrician and Gynecologists guidelines for recognizing and treating shoulder dystocia).

BE POLITE.

Show that the expert's conclusions are inaccurate, and do it with a smile!

KNOW THE MEDICAL RECORDS

Make sure you review those medical records over and over again. Know it better than the expert and your adversary. It will prove well worth it when you can point to a specific part of the medical record that the expert cannot recall.

ONLY BY THOROUGH PREPARATION AND EXHAUSTIVE RESEARCH OF THE TOPIC CAN YOU PERFORM A SUCCESSFUL CROSS EXAMINATION OF A MEDICAL EXPERT IN A MEDICAL MALPRACTICE CASE.

Gerry Oginski is an experienced New York medical malpractice and personal injury trial attorney and practices exclusively in the State of New York. He has tirelessly represented injured victims in all types of medical malpractice and injury cases in the last 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 200 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something for you. http://www.oginski-law.com 516-487-8207

How to Collect on a Court Judgment Without a Bailiff, Sheriff, Or Lawyer

Here is a fast, cheap and effective way to collect on a court Judgment if you accept regular checks from companies or one-person enterprises in the course of doing business.

If you use the following information wisely it can save you MUCH time, money and aggravation.

Here's what you need to do.

Each and every time you receive a personal or certified check make a **photocopy** of it before you deposit it.

Why, photocopy the check?

Because, if one day, they run-up a sizeable account balance and for whatever reason decide not to pay you, then you may be forced to file suit against them in order to get back what is owed to you. Once you've gotten a judgment against them, put the following into immediate action.

One of the BEST legal ways you can collect on a judgment is to obtain something called a writ of garnishment, which is an order from the court that requires the debtor's bank to give you the money in the debtor's account to pay the judgment.

However, you can only use this maneuver if you know what bank the debtor uses.

It's not necessary to incur additional legal costs (and attorney fees) in the attempt to gain this information because you have a copy of one of their checks already on file. This method of having a copy of their check already "on file" is simply much faster, easier, and a whole lot cheaper.

By using this simple but effective legal strategy you can (in most cases) arrange for the garnishment to be issued on the same day that the judgment was entered.

IMPORTANT: Make a photocopy of your customer's checks and place them in a special folder or file. You may never need to use it, but if you do, you'll be in a strong legal position to get hold of your funds without delay and further costs.

Achieving Financial Security in an Unreliable Economy

Financial Security is a false concept that developed in American society based on the idea that security comes from the perceived reliability of a regular or planned paycheck. Many people, believing in the commitment of their corporations to their well-being, have found themselves downsized, layed-off, outsourced, transferred, or, in some cases, even fired. The immediate reality becomes harshly apparent and sadly disappointing.

The bottom line is that Corporate America will always be focused on the bottom line. As a dependent corporate employee, you are subject to the whims of the corporation. You have absolutely no control over how much you earn, where you work, the longevity and reliability of your income, or your position. You are simply a number. At any given moment, some nameless pencil-pushing number-cruncher, can deem that you are no longer an asset to the company and, rather, have become a liability. At any given moment, it can be deemed that you no longer factor into the profitability of the corporation - and your OUT. They don't care if you have a mortgage to pay, 3 kids in college or a new shiny car with a hefty payment. They don't care that you've come in early for the last 9 years or given 20 years of your life to them. The bottom line is that you don't effect the bottom line in a positive way...so you're OUT.

Corporations no longer hold value in employee commitment or dedication. Each day, companies are choosing to cut costs by outsourcing to less expensive countries with cheaper labor, downsize, and reduce costs by eliminating cost of living increases, benefits and retirement guarantees. Recently, the media has been focusing on the deliberate actions of corporations that cost employees each year. The Christian Science Monitor, on November 7th, 2005, featured an article, “Workers Face Paycheck Pinch”. In the article, the author, Mark Trumbell, details the lag of Corporate America to maintain pay increases with inflation:

• For all its strength, the current economic expansion is not boosting the American worker's paycheck. Wages have been rising nominally: Average pay rose 8 cents last month to $16.27 an hour, according to a government report Friday. That's not fast enough to counter inflation.

By one common measure, average pay for an hour's work has less purchasing power than it had four years ago - when the current growth cycle began. It's a pattern of weak wage growth that's now several years old, but the trend has worsened in recent months. Wages for the most recent quarter were 2.3 percent lower, after inflation, than workers received a year before.

Time Magazine recently featured an article entitled “Broken Promises”

• "It was part of the American Dream, a pledge made by corporations to their workers: for your decades of toil, you will be assured retirement benefits like a pension and health care. Now more and more companies are walking away from that promise, leaving millions of Americans at risk of an impoverished retirement."
• "Corporate promises are often not worth the paper they're printed on. Businesses in one industry after another are revoking long-standing commitments to workers." (Bartlett and Steele, October 31, 2005, p. 32-33)

So, how do you achieve Financial Security in this changing global economy? Employers aren't even keeping up with inflation and are doing everything in their power to reduce benefits and retirement income. The days of being rewarded for loyalty to corporations are long gone – it’s now every person for themselves. In addition, loop holes in corporate law enable companies to restructure, file bankruptcy and maneuver their way out of promises to employers to provide benefits.

In reality, true Financial Security is belief in yourself and your ability to instinctively create income for yourself at any time, anywhere. Entrepreneurs understand true Financial Security. They’re self-reliant, creative, independent and solution focused. We know that at any given time, regardless of the economy, trends, timing, etc. that we have the skills, know-how, and guts to create our life. Entrepreneurs refuse to be dependent on or subject to the whims or decisions of corporate America, rather establishing themselves as corporations, producing their own incomes through commitment, service and sheer motivation. We are responsible for our own retirements and count on the promises of no one. Entrepreneurs ARE financial security and as such we reap the rewards.

There are many opportunities for people to become successful entrepreneurs. Thousands of people have made fortunes on the internet alone. Decide what type of business you want, what your ultimate goal is (time, money, leisure, etc) and go from there. A common misconception is that businesses take thousands of dollars to start. It is true of some, but there are many lucrative opportunities available for nominal start-up costs. Once you make the decision to be self-employed, do your research, find the right business for you and move forward from there.

Copyright 2005 Shannon Lavenia

Birth Injury Cases- Shoulder Dystocia & Erbs Palsy

Shoulder dystocia occurs when the baby gets stuck behind the mom's pelvic bone while passing through the birth canal. Failure to recognize this can result in significant injury to the baby. Sometimes, an obstetrician will try and pull on the baby's head to get the baby out quickly. This can have devastating effects on the baby.

Applying excessive lateral traction to the baby's head when the baby's shoulder is stuck in the birth canal can cause a baby's nerve to stretch or tear and become severely injured. This injury is called "Erbs palsy," "Klumpke's palsy," or "Brachial Plexus palsy." This nerve injury causes significant disability to the baby's arm and has long-term implications. Most children with this injury are unable to use their arm, and hand.

Here are some maneuvers doctors use to try and get the stuck shoulder out from behind the mother's pelvis:

1. A "woods maneuver," also known as a "corkscrew" maneuver. This rotates the baby to move the stuck shoulder away from the obstruction.

2. If the "Woods" maneuver doesn't work, then they can try a "Rubin" maneuver. This rotates the baby in the opposite direction.

3. At the same time, the doctor should be doing a "McRobert's" maneuver. This is where the pregnant woman's legs are pulled back as far as possible, with her knees up by her chest. This creates more curvature of the spine and more room for the baby to pass through the birth canal.

4. If those maneuvers don't work, an obstetrician can try to deliver the posterior arm to release the shoulder from the mom's pelvis.

5. Another maneuver is applying suprapubic pressure. This is pressure placed on the mother's belly, below where the baby is, in the area of the pubic bone. It is NEVER acceptable to apply fundal pressure, which is pressure placed at the top of the mother's belly to try and force the baby down the birth canal.

6. An episiotomy (an intentional cut made by the obstetrician) is often done to allow and prevent a tear of the skin and muscles as the baby passes through the birth canal.

7. As one of the last efforts, the obstetrican can fracture the baby's clavicle bone, which will collapse the bone, and (hopefully) shrink the size of the shoulders so the baby can pass through the pelvis.

8. As a final, drastic, last ditch maneuver, a procedure known as a "Zavanelli" maneuver can be done. This is also known as a "cephalic replacement" where the baby's head is pushed back into the vagina and an emergency cesarean section is performed. This is rarely done, but is nevertheless a tool in the obstetrician's arsenal to get the baby out when all else fails.

Gerry Oginski is an experienced New York medical malpractice and personal injury trial attorney and practices exclusively in the State of New York. He has tirelessly represented injured victims in all types of medical malpractice and injury cases in the last 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a

Birth Injury Cases- Shoulder Dystocia & Erbs Palsy

Shoulder dystocia occurs when the baby gets stuck behind the mom's pelvic bone while passing through the birth canal. Failure to recognize this can result in significant injury to the baby. Sometimes, an obstetrician will try and pull on the baby's head to get the baby out quickly. This can have devastating effects on the baby.

Applying excessive lateral traction to the baby's head when the baby's shoulder is stuck in the birth canal can cause a baby's nerve to stretch or tear and become severely injured. This injury is called "Erbs palsy," "Klumpke's palsy," or "Brachial Plexus palsy." This nerve injury causes significant disability to the baby's arm and has long-term implications. Most children with this injury are unable to use their arm, and hand.

Here are some maneuvers doctors use to try and get the stuck shoulder out from behind the mother's pelvis:

1. A "woods maneuver," also known as a "corkscrew" maneuver. This rotates the baby to move the stuck shoulder away from the obstruction.

2. If the "Woods" maneuver doesn't work, then they can try a "Rubin" maneuver. This rotates the baby in the opposite direction.

3. At the same time, the doctor should be doing a "McRobert's" maneuver. This is where the pregnant woman's legs are pulled back as far as possible, with her knees up by her chest. This creates more curvature of the spine and more room for the baby to pass through the birth canal.

4. If those maneuvers don't work, an obstetrician can try to deliver the posterior arm to release the shoulder from the mom's pelvis.

5. Another maneuver is applying suprapubic pressure. This is pressure placed on the mother's belly, below where the baby is, in the area of the pubic bone. It is NEVER acceptable to apply fundal pressure, which is pressure placed at the top of the mother's belly to try and force the baby down the birth canal.

6. An episiotomy (an intentional cut made by the obstetrician) is often done to allow and prevent a tear of the skin and muscles as the baby passes through the birth canal.

7. As one of the last efforts, the obstetrican can fracture the baby's clavicle bone, which will collapse the bone, and (hopefully) shrink the size of the shoulders so the baby can pass through the pelvis.

8. As a final, drastic, last ditch maneuver, a procedure known as a "Zavanelli" maneuver can be done. This is also known as a "cephalic replacement" where the baby's head is pushed back into the vagina and an emergency cesarean section is performed. This is rarely done, but is nevertheless a tool in the obstetrician's arsenal to get the baby out when all else fails.

Gerry Oginski is an experienced New York medical malpractice and personal injury trial attorney and practices exclusively in the State of New York. He has tirelessly represented injured victims in all types of medical malpractice and injury cases in the last 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

Having a Free Space Cleaner in Your PC

Being a computer user for years and years now would definitely entail the use of a space cleaner. Over time, your computer will have accumulated a lot of unnecessary information, files, and pretty much, debris all over its hard drives. This is particularly true of the files that you delete from your computer. When you hit the Delete button, you just may think that the deleted file is already off your system. In reality, the files are not really deleted per se at all. What happens here is that the deleted files would just be marked as free blocks and they would still occupy space on your hard disk. What is worse here is that these free spaces you have on your computer are literally traces of the files that you once deleted. With these in existence, hackers can then maneuver their way into retrieving those deleted files. With a space cleaner - and even a free space cleaner at that - this problem can be had in just one simple step: installing a space cleaner onto your system.

Just what exactly does a space cleaner do? It basically goes out on a limb for you. When you hit the Delete tab, you do not just simply "delete" the file from your system. You actually go that extra step and let the space cleaner delete the free blocks that remain in your hard disk. This means that all traces of the originally deleted files are deleted off the memory banks of your computer. This makes the job of hackers all the more difficult to do. At the same time, you also increase the hard disk space of your computer, thereby optimizing its performance as well.

You may think you do not really need the space cleaner because you do not save important files on your hard drive and you just use your computer to surf websites. This is not true at all. The mere act of surfing the web already gives you much cause for worry. Each website you visit leaves traces on your hard drive and when you do not delete these using the space cleaner, any hacker can monitor your web surfing activities from his or her end. Time might come when you input your password to your online bank account and this piece of information is stored on your hard drive, even if you deleted any password files you may have saved before. You have to understand that hackers are very innovative and passionate in their craft - much to the chagrin of any Internet surfer - so your best defense is to use the space cleaner.

There are so many space cleaner applications that you can find on the web. Some are free, some are paid services. Obviously, the difference here would be in the features that come with the applications. Free space cleaners would have limited features, of course, while paid space cleaners would come with a fancier package of features. The key to choosing well here is to analyze your needs first. If you handle loads and loads of files, then you might be better off with a paid one. But if you just use your computer for leisure, then having the free application would do you a lot of good already.

My Favorite Eviction Maneuver

Let's face it -- anyone that's had the pleasure (ha!) of being a landlord, has had to deal with pre-eviction notices to delinquent tenants.

In Florida, the notice that immediately precedes the filing of an eviction action is, in most instances, a three day notice. This notice gives the tenant three days from the day after posting (not including holidays and weekends) to vacate the subject property or the landlord is free to file an eviction action obligating the tenant to appear in front of the Judge and/or risk being forcibly removed by the sheriff.

Soup-to-nuts, a Florida eviction is relatively easy as long as the landlord has followed the law. The eviction can take anywhere from three weeks (for possession only) to three months (if you're looking for monetary damages) depending upon the skill of the tenant and/or their attorney.

Personally, my eviction actions are filed for possession only, the reason being, service is accomplished by merely posting the complaint on the front door of the subject property. Once the documents are posted the clock starts running towards the eventual (I hope) default of the tenant. If an eviction action seeks damages (money for back rent for example) the tenant would have to be personally served (which can sometimes resemble trying to tape jello to a moving car) and would also be given more time to file an answer.

Invariably, my delivery of the three day notice moves the delinquent tenant into action -- they decide it's time to call me. The reason for their call is to: a) explain the reason behind their delinquency (I swear there's a book of excuses that gets passed around from tenant to tenant); b) complain about the property being in disrepair (only to find out from the plumber that "someone" had flushed two McDonald's bags down the toilet); and c) ask me to allow them to catch up by paying, for example, an extra $150.00 a month in addition to their current rent until they are up-to-date once again.

After two months of having to make my mortgage payment without the benefit of collecting any rent; I drew up an agreement outlining our delinquent payment arrangement and accepted a token portion of what I was due (which will serve to essentially dismiss my eviction action). I wanted to accept their money, and I even wanted to believe their promise to make extra payments. Heck, I had a mortgage to pay

During the early years of my land-lording, I never even once, had a "payment plan" work out the way I intended. Instead, I learned that the payment plan only truly benefited the delinquent tenant. Why do I say this, you ask?

All the "payment plan" truly did was get me to accept less money than I was entitled to from the delinquent tenant and reduce the pressure on the tenant. Once I accepted any money after the delivery of the three day notice, I had to start the proceedings over again, thereby removing my hammer and eliminating the immediate threat of eviction.

Please sit down, for what I have to say next is going to change your land-lording life forever. You'll either love what I'm about to tell you or you'll think I'm a bozo and laugh yourself silly.

What I eventually came to realize was that my agreement allowing the tenant to remain in the property and make "extra payments" had no teeth; no enforceability, until...

... I came up with a way to put teeth into my agreement. I discovered a way to post only one three day notice (per occurrence) and a way to keep the pressure on the delinquent tenant until they were delinquent no more by including the power of the court in my agreement!

(Fast rewind back to right after the delivery of the three day notice and the delinquent tenant calling for a payment plan) Instead of merely collecting whatever I could and having only an empty promise to count on, I explain a potential payment plan in this fashion:

"Mr. Delinquent tenant, thank you for calling. Should I agree to accept any payment plan allowing you to catch up, this is the way we are going to structure the transaction."

"I must continue with the filing of the eviction action and, just after my filing the cause of action, you and I will sit down and execute a "Stipulation". (Because it will contain both our signatures, the court will most likely ratify it without the necessity of a hearing.) This document will serve to outline our payment plan to the court."

"Once the stipulation is completed and the eviction action is of record, we will submit it to the court for the Judge's approval. Once the court approves the payment plan, we can move forward to getting you current."

By presenting this option to the tenant, both of you will learn something very valuable about each other -- the tenant will learn that you are to be taken seriously, and you will learn if the tenant is hollow in his promise to catch up. You see, very rare is the delinquent tenant that is willing to enter into any sort of stipulation that legally allows you to bypass any additional notice requirements. If they sign it, you have your hammer in place, and if they don't, you can continue with the eviction action as was planned when the three day notice was first posted.

Essentially, what has happened is I now have the power of the court behind me, through my agreement; to continue my eviction action, without notice, upon any default (missed payments), there will be no need for additional time-killing and money wasting notices -- simply notify the court of the default under the agreement and ask for the immediate entry of a Final Judgment and the issuance of a Writ of Possession.

By using this technique or any version that brings the court into your agreements with delinquent tenants, you will save time and money and let your tenants know that you are not to be trifled with.

In light of the sometimes not-so-obvious land mines inherent to any landlord tenant event, please consult competent legal council prior to entering into or drafting any legally binding agreements.