Benchmark Client Newsletter July 04 .pub

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Photo: Valerie Reynoso, Comstock’s Business Magazines Vital Resource Vital Resource for Medical-Legal for Medical SOLUTIONS M EDICAL C ONSULTANTS July 2004 Volume 5, Issue 2 ETHICAL PROTOCOLS FOR DEALING WITH OPPOSING COUNSEL AND WITNESSES BY LEO SCHUERING merican Board of Trial to violate the integrity of those practices expert witness should be scheduled Advocates, also known and procedures for the purpose of the at a mutually convenient time and A as ABOTA are the most matter for which he has been retained. place. Lawyers should readily experienced and highly regarded trial lawyers agree to depositions “after hours” or Various State Bars and Federal in the legal community. Membership in this at the expert’s office, if that is the District Courts have published guidelines preeminent least disruptive to the expert’s prac-for conducting ethical and civil discovery, organization tice. However, if the expert’s office including scheduling, subpoenas, ques-is by invita- is not large enough to accommo-tioning and compensating experts. Virtu-tion only to date the number of lawyers in a ally all agree with the following guide-the signifi- multiple party case, the expert lines: cantly ex- should readily agree to the deposi- perienced tion being held at a lawyer’s office, Scheduling who have hospital or other convenient loca- The lawyer should schedule an displayed tions. expert witness’ testimony at trial far skill, civility ► ETHICS, page 3 ...

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• Publié par: Theyf
• Nombre de lectures: 29
• Langue: English

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M E D I C A L C O N S U L T A N T S

VitalResource forMedical-Legal SOLUTIONS

July 2004 Volume 5, Issue2

E T H I C A L  P R O T O C O L S  F O R  D E A L I N G  W I T H  O P P O S I N G C O U N S E L  A N D  W I T N E S S E S B Y  L E O  S C H U E R I N G merican Board of Trialto violate the integrity of those practicesexpert witness should be scheduled Advocates, also knownand procedures for the purpose of theat a mutually convenient time and experienced A  andhighly regarded trial lawyersagree to depositions “after hours” or as ABOTA are the mostmatter for which he has been retained.place. Lawyersshould readily  VariousState Bars and Federal in the legal community.Membership in thisat the expert’s office, if that is the District Courts have published guidelines preemi nentleast disruptive to the expert’s prac- for conducting ethical and civil discovery, organization tice.However, if the expert’s office including scheduling, subpoenas, ques- is by invita-is not large enough to accommo- tioning and compensating experts.Virtu- tion only todate the number of lawyers in a ally all agree with the following guide- the signifi-multiple party case, the expert lines: cantly ex-should readily agree to the deposi- p e r i e n c e dtion being held at a lawyer’s office, Scheduling who havehospital or other convenient loca-  Thelawyer should schedule an d i s p l a y e dtions. expert witness’ testimony at trial far skill, civility enough in advance and in such a manner ► ETHICS, page 3 and integ- as to minimize inconvenience to the ex- rity. pert and disruption of the expert’s prac- INSIDE THIS ISSUE: tice. The ABOTA  Toavoid delays and unneces- Code of sary waiting at trial, the lawyer should try Profession- Consultant Profile2 to schedule an expert witness as the first alism to Leo Schuering,of Schuering, witness of the morning or afternoon ses- which all Zimmerman & Scully Law Firm being called “out ofsions. However, Investigation Services3 members of order” may disrupt a trial, inconvenience this prestigious organization presumably ad- other witnesses and interrupt the logical here sets forth ten guiding principals.First, a flow of evidence.Therefore, while the trial advocate must remember that the prac- Sacramento Claims2 expert is entitled to some estimate to the tice of law is first and foremost a profession Association amount of time needed for testimony, he and be respectful in his conduct towards his or she should be mindful that the attor- adversaries. ney has little control over the court’s August CME Cruise4  ABOTAhas published aCode of docket, the needs of other witnesses or Pretrial Conductserve as a guide for its to the opposing lawyer’s conduct or ques- members in particular and hopefully the legal tioning. Thesemay necessarily result in Insert Most Commonly profession in general.A lawyer should re- some delay in testimony or other incon- spect the integrity of an expert witness’ pro- Used Medical Terms venience to the expert. fession, practices and procedures and should  Similarly,the deposition of an refrain from asking or encouraging the expert

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M E D I C A L C O N S U L T A N T S

B E N C H M A R K  V I S I O N

A publication of Benchmark Medical Consultants President/CEO John L. Chase, M.D, F.A.C.S Executive Team Chief Operating Officer Jose Lopez Executive Vice President Kelly Denison Consultant Relations Manager/CME Director Craig Vreeken Chief Financial Officer Steve Jahn Contributing Writers Leo ‘Butch’ Schuering of Schuering, Zimmerman & Scully Law Firm Editor Amy Morgan Proofreader/Writer Jane Ryerson 10423 Old Placerville Road, Suite 100 Sacramento, CA 95827 1.800.458.1261 www.BMCadmin.com Article Submission Benchmark welcomes your story ideas and comments. Submityour articles and/or ideas to: [e-mail] Benchmark provides administrative support to over 1,400 healthcare professionals, allowing them to add independent medical-legal consulting to their professional activities. We support physicians in personal injury, product liability, medical malprac- tice, long-term disability, & workers’ compensation. ©Copyright 2004 by Benchmark Medical Consult- ants. Reproductionin whole or in part without permission is prohibited.

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C O N S U L T A N T  P R O F I L E William McMullen Jr., Ph.D. Neuropsychology

We are pleased to profile William J. McMullen, Jr., Ph.D., Board Certified Clinical Neuropsychologist. Dr. McMullen graduated from Wayne State University in December 1993 with a doctorate in Clinical Psychol- ogy, and a specialty area in Neuropsychology. He completed his postdoctoral fellowship in Neuropsy- chology over the next two years at the Neuropsychiat- ric Institute and Hospital of the UCLA Center for the Health Sciences in Los Angeles. He worked for two years as a staff Neuro- psychologist with the NYU Epilepsy center in Manhattan before moving to the bay area to work with an adult brain injury rehabilitation center in 1997. He continues to work with the rehabilitation center and opened his private prac- tice in 1998. Dr. McMullen conducts comprehensive neuropsychological evaluations of adult patients with a variety of neurological and psychiatric conditions. He is the Neuropsychologist for the Pacific Epilepsy Program and the Movement Disorders Program at California Pacific Medical Center in San Francisco. He performs neuropsychological and psychological assessments of patients with stroke, head injury, brain tumor, attention deficit disorder, learning disability and other neurological and psychiatric disorders. He con- ducts neuropsychological and psychological evaluations in civil and criminal forensic contexts and has given lectures in the use of motivational assess- ment in Neuropsychological testing. Dr. McMullen is Board Certified in Clini- cal Neuropsychology through the American Board of Professional Psychol- ogy. He is a Qualified Medical Examiner (QME) in the State of California and is a member of the American Epilepsy Society, the International Neuropsy- chological Society and the American Psychological Association.

S A C R A M E N T O  C L A I M S New Location for Monthly Meetings July 8th was Sacramento Claims Association last meeting at Luau Gardens.Beginning August 12ththe meetings will be held at Cattlemen's Restaurant in Rancho Cordova. Their address is:12409 Folsom Blvd. Rancho Cordova, 916-985-3030. Cattlemen’s has abanquet room that holds 60 people, and two rooms that can be opened up into one room which will hold up to 130. Cost Sid Lamb, JDof per person is $15.00 for members and $20.00 Laughlin, Falbo, Levy for non-members. & Moresi JULY’S SPEAKER Sacramento Claims featuredSidney Lamb,JDof Laughlin, Falbo, Levy & Moresi law firm on July 8th at Luau Gardens. Topic of discussion:Changes in California Workers’ Compensation Law. More information can be found at: www.SacramentoClaims.org

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E T H I C S  . . . CONTINUED FROM PAGE ONE

M E D I C A L C O N S U L T A N T S

Significance of a Subpoena  ASubpoena is an order of Court that may be issued by a lawyer compelling a witness to appear at the time and place stated in the Subpoena.A Subpoena duces tecum (Subpoena to produce) requires a witness to appear and pro- duce things or documents.Subpoenas may be issued for deposition or trial testimony.  Notonly professional courtesy but the reputation of the expert witness and the safety of his or her patients or cli- ents’ demands that a lawyer not abuse the Subpoena power.  Whileevery reasonable attempt should be made to accom- modate the expert witness, it must be understood by the expert that he or she does not always have the right to choose the time and place to give testimony.Like any other witness, the expert summoned to Court by Subpoena must appear at the time and place so designated.However, it must constantly be stressed that a lawyer should never abuse the use of a Sub- poena and should always recognize the potentially disruptive effect it could have on an expert’s practice, if reasonable ar- rangements have not been made in advance to have the wit- ness set aside the time.  Atthe time the expert witness’ testimony is scheduled, the lawyer should discuss with the expert the need for service of a Subpoena, and the manner in which the Subpoena should be served.Personal service can be disruptive to the expert’s office and embarrassing to the expert.Private process servers should be instructed by the lawyer concerning tactful and dis- creet service of a Subpoena.  Similarly,an expert witness should never seek to evade service of a Subpoena so as to avoid having to testify. That is beneath the dignity of the expert, substantially increases litigation costs, obstructs the administration of justice and can result in eventual embarrassment to the expert when service is finally accomplished. Compensation  Anexpert witness should be fairly compensated for all work on behalf of the client.Compensation, or the amount of compensation, cannot be contingent in any way upon the sub- stance of the expert’s opinions or the outcome of the matter for which the expert has been retained.  Ifthe subject of testimony arises out an individual’s role or status as an expert witness, he or she is entitled to an expert witness fee.The use of a Subpoena to compel an ex- pert’s presence at a deposition, hearing or trial does not in any way affect the expert’s entitlement to such an expert witness fee.  Ifno prior agreement is reached as to the amount of a fee, the expert witness may bill the lawyer for a reasonable expert witness fee for attending pursuant to a Subpoena.If a disagreement arises over the entitlement to such a fee, or the amount requested, that dispute may be submitted to the Court.

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Deposition Questioning  Alawyer should not intentionally ask a witness a ques- tion that misstates or mis-characterizes the witness’ previous answer.  Alawyer should not repeatedly ask the same or sub- stantially identical question of a deponent if the question has already been asked and fully and responsibly answered by the deponent.  Itis presumptively improper to ask questions clearly beyond the scope of discovery permitted, particularly of a per- sonal nature, and to continue to do so after objection should be evidence that the deposition is being conducted in bad faith or unreasonably, so as to annoy, embarrass or oppress the depo- nent or party, which is prohibited by many guidelines and specifi- cally by Federal Rules of Civil Procedure 30(d)(3).  Whilethe interrogation of the deponent is in progress, neither a lawyer nor the deponent should initiate a private con- versation except for the purpose of determining whether privilege should be asserted.To do so otherwise is presumptively im- proper. Conclusion Ultimately, it is the responsibility of the lawyer for whom the expert witness is appearing to control the proceedings such that intentional efforts to annoy, embarrass, wear down or inten- tionally Subpoena experts during a disruptive time, such as a vacation or family event, are avoided or minimized. References American College of Trial Lawyers.Code of Pre-Trial Conduct. Colorado Bar Association. Discovery Guidelines of the U.S. District Court for the District of Maryland.

I N V E S T I G A T I O N  S E R V I C E S enchmark is now providing administrative support to R.B. Smoke & Associates. This new service will en- Con B sultant,has over 38 years of adjusting and investigative hance the range of specialties available to Bench- mark clients. Robert Smoke, R.P.A., a Benchmark experience. During his professional years he has developed an expertise in all manners of liability and casualty claims, work- ers’ compensation and medical malpractice investigations, along with extensive work in public entity claims and pre-trial investigations for defensecounsels. Smoke is licensed as a private investigator,and handles S.I.U. investigations, includ- ing surveillance, for several clients. You may request Smoke’s services bycalling Benchmark at 1.800.458.1261.

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L U X U R Y  C R U I S E SO F F E R E DB Y M E D I C A LD E S T I N A T I O NH A W A I I Presented by a joint venture between Medical Destination Hawaii and Benchmark Medical Consultants AVOIDING COMPLIANCE NIGHTMARES, A QUICK SURVEY ON HIPAA, OSHA, and FRAUD and ABUSE ISSUES David Ginsberg, Esq. Co-Founder and President of PrivaPlan Associates, Inc. 8 HOURS OF CATEGORY 1 CREDIT TOWARDS THE AMA PRA Date: August28-September 4, 2004 Place: Seattle to Alaska-Round trip cruise on Holland America CME Course $495.00Cabin prices based on double occupancy, plus taxes, and are subject to availability To Register Now: Call: 1-888-923-4004 Web: www.cruisecme.com Benchmark Medical Consultants is accredited by the Accreditation Council for Continuing Education (ACCME) to provide continuing medical education for physicians. This educational activity has been designated for a maximum of 8 HOURS category I credit toward the Physician’s Recognition Award. Benchmark Medical Consultants is also a provider approved by the California Board of Registered Nursing, provider number CEP14179. This activity has been approved for 8 contact hours. This certificate must be retained by the licensee for a period of four years after the course ends. Each participant should claim only those credit/hours that he/she actually spent in the activity. © 2004 All Rights Reserved

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COMMONLY USED MEDICAL TERMS Before Meals (ante cibum)Alcohol ac ETOH Alternating CurrentForeign Body AC FB Anterior Cruciate LigamentFasting Blood Sugar ACL FBS As DesiredIron Ad libFe Acquired Immunodeficiency SyndromeFever of Unknown Origin AIDS FUO Anterior-Posterior (view)Fracture AP Fx Water Gallbladder aq. GB Arteriosclerotic Cardiovascular DiseaseGallbladder Series ASCVD GBS Twice a DayGlasgow Coma Scale b.i.d. GCS Barium EnemaGastro-intestinal BE GI Blood PressureGram BP Gm/gm. Benign Prostatic HypertrophyFirst, Second, etc. Pregnancy BPH Grav. Bleeding TimeGunshot Wound BT GSW Blood, Urea, NitrogenGlucose Tolerance Test BUN GTT Biopsy Genito-Urinary Bx Gu Complains OfAt bedtime (hora somni) c/o h.s. First and Second Cervical VertebraeHistory and Physical C1/C2 H&P Cancer Water CA h2o Calcium or CancerHemoglobin Ca Hb/Hgb Coronary Artery Bypass GraftHematocrit CABG HCT/hct Complete Blood CountHead, Eyes, Ears, Nose, Throat CBC HEENT Cubic CentimeterHerniated Nucleus Pulposus cc HNP Chief ComplaintIntensive Care Unit CC ICU Coronary Care UnitIntramuscular (injection) CCU IM Congestive Heart FailureIntrauterine Device CHF IUD Carbon DioxideIntravenous CO2 IV Chronic Obstructive Pulmonary DiseaseIntravenous Pyelogram COPD IVP Cerebrospinal FluidKilogram CSF K/k Carpal Tunnel SyndromeKidney, Ureters, Bladder CTS KUB Cerebrovascular Accident1st and 2nd Lumbar Vertebrae CVA L1/L2 Dilatation & CurettageLeft Lower Quadrant D&C LLQ Differential Blood CountLoss of Consciousness diff. LOC Diabetes MellitusMilliequivalents per Liter DM mEq/L Deep Venous ThrombosisMilligram DVT mg Diagnosis MyocardialInfarction Dx MI Electrocardiogram Millimeter ECG/EKG mm Electroencephalogram Millimeterof Mercury EEG MmHg. Ear, Nose, ThroatNitrogen ENT N Extraocular MovementsSodium EOM Na 1.800.458.1261 www.BMCadmin.com© 2004 All Rights Reserved

M E D I C A L C O N S U L T A N T S

COMMONLY USED MEDICAL TERMS

Newborn Symptoms NB Sx National FormularyThree Times a Day N.F. t.i.d. Nothing by MouthTransient Ischemic Attack NPO TIA Nonsteroidal anti-inflammatory drugsTemporomandibular Joint NSAIDS TMJ Obstetrics Temperature,Pulse, Respiration OB TPR Right EyeTreatment OD Tx Open Reduction Internal FixationUrinalysis ORIF UA Left EyeWhite Blood Cell OS WBC/wbc Oxygen YearOld O2 y/o Posterior-anterior (view) PA After meals (post cibum) p.c. Orally (per os) .o. Post-Operative p/o As needed basis (pro re nata) .r.n. Physician’s Desk Reference PDR Physical Examination PE Pupils, equal, round and react to light and PERRLA accommodation Hydrogen Ion Concentration H Present Illness PI Pelvic Inflammatory Disease PID Past Medical History PMH Premature Ventricular Contractions PVC Every Day qd Four Times Per Day .i.d. Quantity Not Sufficient q.n.s. Quantity Sufficient q.s. Rule Out R/O Red Blood Cell RBC/rbc Random Blood Sugar RBS Right Lower Quandrant RLO Range of Motion ROM Review of Systems ROS Right Upper Quadrant RU Treatment Therapy, Prescription Rx Status Post S/P Subcutaneous s. . Social History SH Shortness of Breath SOB Immediately stat 1.800.458.1261 www.BMCadmin.com© 2004 All Rights Reserved