EvalMedppr

THE OBJECTIVE ANALYSIS OF THE MEDICAL NEGLIGENCE CASE
ELLIOTT B. OPPENHEIM, MD/JD/LLM HEALTH LAW
PRICE: $50
THE OBJECTIVE ANALYSIS OF
THE MEDICAL NEGLIGENCE CASE ©
vers 1.9.03
by Elliott B. Oppenheim, MD/JD/LLM Health Law1
coMEDco, Inc.™
POB 1400
Tesuque, NM 87574
505-820-0013
(fx) 505-820-0027
Internet: coMEDcoINK@aol.com
Website: www.comedco.com
NOTICE:
ALL RIGHTS RESERVED. THIS WORK IS PROTECTED BY THE COPYRIGHT
LAWS OF THE UNITED STATES OF AMERICA, AND MUST NOT BE USED IN
ANY WAY WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE AUTHOR
AND TERRA FIRMA PUBLISHING COMPANY. ©
… CALL TO THE POST
An upset client sits in your office and describes the circumstances of medical care
which have resulted in severe injury to a loved family member. The client wants to know
whether the family should pursue the matter. Whether you should undertake this
representation is a complex analysis, but if you read further, I’ll tell you how I analyze cases.2
How to evaluate a medical negligence case is not unlike handicapping an horse race. The
attorney may know the players, know the facts, but whether you should put your money
down on this one, to predict whether your client will win, place or show, requires some
experience and expertise. This article hopes to provide the attorney with what he needs to
1
The author is CEO and President of coMEDco, Inc.™ , a national medical-legal consulting firm. Dr.
Oppenheim graduated from Occidental College, (B.A. 1965) and the University of California, Irvine School
of Medicine (M.D. 1973). He was Board Certified in Family Medicine by the American Board of Family
Practitioners a certified in emergency medicine. He practiced family and emergency medicine for nearly
twenty years then obtained a JD from Detroit College of Law at Michigan State University (1995) and an
LL.M. Health Law from Loyola University Chicago, School of Law, Institute of Health Law (1996). He
consults and writes in the area of health law. His treatise, The Medical Record As Evidence (Lexis 1998)
may be obtained from Lexis Law Publishing: 800-643-1280, item # 66063 or at
http://www.lexislawpublishing.com.
2
Elliott B. Oppenheim, A Trial Lawyer’s Guide to the Medical Record, 84 ILL. BAR J. 637 (1996)
(discussing how to order and analyze the medical records).
1

know to make these important decisions by the use of an objective standard in the analysis
of medical negligence cases.
Fortunately, however, the analysis of a medical negligence can be more scientific
than horse racing and the results should be more predictable. But beware, this sport is not
for every pocketbook! Sometimes what seems to represent a best case, can go sour.
My analysis follows the tort elements: the duty, the departure from the standard of
care, causation, and damages. But there is an important weighted element here. Never lose
track of the point that medical negligence litigation includes only a fraction of the typical
medical “quality” factor. A practitioner may deliver non-quality care but it may not
represent negligent medical care to a degree worth pursuing. Bad things happen under the
best of circumstances and even in the best of hands under optimum conditions. While
medicine is a science, biologic systems do not respond the way aircraft engines respond.
Human beings, are, well, human.
So how do you differentiate a bad result from negligent medical care which would
then provide the basis for a successful litigation? To fully analyze a medical negligence
case in terms of whether to take the case, one must include other factors: the overall
contour of the case, the plaintiff, the defendant. At the end of this article you will find how
I account for these variables in a weighted scoring analysis which provides some
objectivity.
Finally, I always begin an analysis from the conclusion: damages. If there are
limited damages, then, in general, the case is not worth pursuing and there ends the
analysis. Cases cost so much to pursue that unless the case is very easy with admitted
liability and where the defense expresses a legitimate willingness to settle, then the case is
unfeasible. Typically, if tried to conclusion, the attorney can expect to spend about
$10,000 per expert, rack up court reporter fees of about $1,000 per deposition, and
expend 500 hours pre-trial once the case is filed and you engage in discovery; twice that
number if the case goes to trial. I haven’t included other expenses: paralegals, research,
2

secretarial, travel but these may easily reach $10,000. The threshhold dollar figure I
generally consider is a recovery of $150,000. More about damages and these economic
realities at the end of the article.
LEGAL ISSUES:
The analysis of any medical negligence case must begin at the legal threshold. Have a
quick look at the legal deal breakers, the sorts of issues the defense will raise instead of a
responsive Answer — all affirmative defenses. Do not forget the Feres Doctrine,3
if your
client is or has been in the service virtually any medical care no matter what reason will be
viewed as incident to military service...barred. To the degree that any conduct occurred
while the claimant was on active duty or in some way part of military services, Feres may
bar any claim. Unfortunate, but true …
MEDICAL ISSUES:4
Duty
The analysis here must begin with the physician-patient relationship. If no
physician-patient relationship then there is no duty to treat. The public finds it horrifying
that a provider is free to walk away from a person having a cardiac arrest but, unless the
physician has a duty to respond, there is no duty to do anything. In the emergency
situation, where life quickly ebbs, when a practitioner intervenes he does have a duty to do
so in a competent manner; but if he chooses to take his kids to the movies rather than to
stop at an auto accident, he is free to do so.
When a physician works in the emergency department setting, he must respond
and he must, under 42 U.S.C. §1395dd, provide at a minimum a screening examination
3
Feres v. United States, 340 U.S. 135 (1950). Congress may … and this is a long shot … modify this
immunity under the FTCA, but don’t hold your breath.
4
As a general overview, remember that there are only two forms of medical negligence: “sins of
omission” — where the provider failed to do something which is called into question; or, “sins of
commission” — where the practitioner DID something, now called into question. Sins of commission are
much easier cases since a defense is more difficult. E.g: “So, you cut _________? How do you explain
that?” The “judgement escape route” is much less readily available in commission cases.
3

consistent with his facilities capabilities.
5
Whenever you see medical care which has taken place in the emergency setting consider
the EMTALA analysis.
Once a physician-patient relationship has been formed and the physician has a duty
to treat, to inappropriately withdraw, withhold, or terminate treatment may violate the
standard of care. Has care been interrupted? If so, what were the circumstances? This
breach of the duty is an important factor to include in your analysis.
5
42 U.S.C. § 1395dd(b)(1)(A),(B). see Elliott B. Oppenheim, EMTALA: Its First Decade - A
Retrospective Analysis of 42 U.S.C. §1395dd 10 (Terra Firma 1996). Order phone: 800-416-1192.
4

Breach of the Duty
This step is vital to any claim since, if no duty was breached, then there is no
tortious conduct. Look for discreet breaches, florid breaches. In general you must plan to
try each medical negligence case and if you can’t get jurors’ blood to boil over callous and
indifferent care, then you will lose. If you find that you are slicing thin hairs, you are in the
gray zone of judgment.
Here’s an example. Recently a case involved a doctor who performed an
hysterectomy on a 25 year old where the doctor knew from laparoscopy that the organs
were absolutely normal. There was no indication for surgery … other than the physician’s
greed.
Here’s another example of an egregious departure from the standard of care. A
respiratory therapist noted that a patient's endotrachael tube was loose and that it had
slipped out 6 cm. The respiratory therapist blindly slid the tube into the oropharynx, the
patient sustained a cardiorespiratory arrest and as a consequence experienced catastrophic
brain damage. Jurors understand that “you can’t do that!” All the therapist had to do was
to remove the tube and bag the patient. There was no contraindication to this safer course
of action.
In contrast, here’s an example of a case where there was a fuzzy departure from
the standard of care: A 15 year old athlete sustained a knee injury and the surgeon
selected one technique for repair but, the plaintiff alleged, another technique should have
been used. The results were terrible. The techniques the orthopedist selected is in common
usage … as was the alternative technique. This choice of procedure represents legitimate
choices in medical judgment and these do not represent negligence.
Causation
Unless the defendant's conduct caused some real world harm, the tort analysis
falters and it is often at this stage that the defense may side-rail a case or substantially limit
5

the defendant's liability. What I look for is a nice clean line of causation. The most obvious
“clean line” is where a departure directly causes something horrific: death; loss of limb;
mental or physical impairment which a juror would immediately attribute to the departure
from the standard of care.
An elderly man was in good condition, walked daily but was in a nursing home
following flu. He was fed through a gastrostomy tube. An LPN inappropriately removed
the tube and when she attempted to insert it again, the tube entered the abdomen. The
LPN then proceeded to fill up the abdomen with feeding solution and the patient suffered
about three days. When this condition was surgically corrected, the surgeon removed
fourteen liters of pus, feeding solution, and fluid from the man’s abdomen. While this
episode injured this man, the plaintiff was not able to easily develop sufficient expert
testimony to connect the departure from the standard of care to the downhill spiral which
ultimately lead to the man’s death. The plaintiff was compensated for pain and suffering
between the time the nurse pulled the tube to the date the patient recovered fully from
surgery, six to eight weeks, but the settlement did not include the general weakening of
the man’s overall condition which lead to death.
Other events may cut off liability so be sure to examine the causation line for each
defendant you include. Beware of “junk science” since it can result in no recovery. In
general, if your case must rely upon novel theories of medical care or of causation, you do
not have a winner.
A woman received birth control pills and then came down with a lipid disorder
which her treating physician attributed to the birth control pills. No other physician would
support this theory and, if such a theory were valid, no other cases were reported in the
literature. The plaintiff would have been litigating a “case of first impression” and in
medical negligence, this is dangerous.
In another case, a high-school student fell down in gym class while playing
basketball. He ultimately developed reflex sympathetic dystrophy and was essentially
6

completely disabled. RSD is not well accepted and its existence is debatable among
reasonable authorities. Further, most jurors would have an hard time accepting a total
disability based upon banging the knee in gym class.
6
Damages
Tort law requires real world damages. California courts provide ample decisions to
learn about the outer limits where courts will permit recovery. The California Supreme
Court, in Ochoa v. Superior Court
7
allowed parents to recover where they experienced extreme mental and emotional
distress upon seeing their son's illness and witnessing their son’s “tragic” death while the
child was in custody in a juvenile detention center.
The Court analyzed:
… [I]t is common to visit a loved one in a hospital and to be distressed by the loved one's
pain and suffering, it is highly uncommon to witness the apparent neglect of the
patient's immediate medical needs by medical personnel.
8
Courts use a standard of “reasonable forseeability” to determine whether a defendant
should be liable for his conduct.
9
In Hegyes v. Unjian Enterprises,
10
the California appellate court did not find a duty to the plaintiff where, after a woman
sustained an injury in a motor vehicle accident for which the defendant was liable, the
plaintiff's unborn child sustained injury when a lumbo-peritoneal shunt was compromised.
6
In contrast, in another case, where a stock clerk lacerated her palm with a box knife and developed
RSD, that case settled in six figures. A jury would understand that line of causation.
7
703 P.2d 1 (Cal. 1985).
8
Id. at 5.
9
Id. at 25
10
234 Cal. App. 3d 1103 (Cal.App. 1991).
7

11
The California court also pointed out that the tort analysis must proceed in a sequential
manner: duty, breach of the duty, causation, and damages. If any step fails, the tort claim
fails. Duty is the “initial obstacle.”
12
In Molien v. Kaiser Foundation Hospitals,
13
the court granted recovery where a woman contracted syphilis … but the diagnosis was
wrong; she never had syphilis. The plaintiff's loss of consortium claim stemmed from the
emotional state induced in his wife by her belief that she had syphilis. This case stands for
the premise that physical injuries are not required for recovery. Where the injury
complained of is forseeable, not remote and unexpected, then the court will permit
recovery.
14
In Transamerica v. Doe,
15
the Arizona appellate court did not provide recovery where the plaintiff was merely
exposed to blood infected with the human immunodeficiency virus. No bodily injury; no
recovery. With similar reasoning the California Court of Appeals decided Macy’s
California v. Superior Court,
16
where a shopper allegedly pricked her finger in a pocket in a jacket which she returned
to the Macy’s store. She feared contracting AIDS17
“or another serious or lethal
disease.”18
This appellate tribunal reversed the Superior Court’s holding, concluding that
“without more” than a needle stick, this plaintiff was not entitled to seek emotional
11
Id. at 1108-09.
12
Id. at 1111.
13
158 Cal. Rptr. 107, 108 (Cal.App. 1979).
14
Id. at 120.
15
840 P.2d 288 (Ariz. App. 1992).
16
41 Cal. App. 4th 744 (Cal.App. 1995).
17
The AIDS cases represent the outside of the envelope in what courts are willing to consider in terms of
compensation for damages. The rule is a simple one: reality. If the threat of exposure is “real” and
significant, courts will permit the case to move forward.
18
Id. at 746.
8

distress damages.
19
In Doe v. Noe,
20
a patient sued a surgeon alleging that his failure to disclose to her his positive AIDS
status exposed her to the risk of acquiring AIDS. The appellate court ruled that health
care providers have a duty to disclose their HIV status
21
but refused to allow claims for battery,
22
informed consent, loss of consortium, or conspiracy.
23
Finally, the appellate court affirmed the trial court’s dismissal of the claim for negligent
infliction of emotional distress.
24
In Doe v. Northwestern University,
25
six plaintiffs sued the University for emotional harm when they were exposed to HIV
through a dental student who participated in their treatment. There was no trauma; no
known invasion or violation of the plaintiffs’ bodies. Claims predicated upon the fear of
contracting AIDS, without more, apparently do not survive. The court reasoned that
“even a foreseeable fear of deadly disease may not be compensable if the feared
contingency is too unlikely”
26
and such broad recovery would reward ignorance and hysteria.
19
see also, Osborn v. Irwin Memorial Blood Bank, 5 Cal. App. 4th 234 (Cal.App.1992) (deciding that a
young man and his family could recover where he did contract AIDS from transfused blood. The family
wanted to harvest his own blood for use in surgery but Irwin’s receptionist stated that harvested blood
could not be “earmarked.” This was the first case in the nation where a blood bank was “found liable in
connection with transmission of the acquired immune deficiency syndrome (AIDS) virus by a blood
transfusion.”) Id. at 246.
20
690 N.E.2d 1012 (Ill.App. 1997).
21
Id. at 1018.
22
Id. at 1021.
23
Id. at 1022.
24
Id..
25
682 N.E.2d 145 (Ill.App.1997).
26
Id. at 151.
9

27
The court held that patients should be compensated for a real-world fear of “actual
exposure” to AIDS, but fear alone, without more, was not enough.
28
Texas uses the “actual exposure” standard to an agent before it will permit
recovery. In Drury v. Baptist Memorial Hospital,
29
a surgical patient harvested blood from friends for her surgery but during surgery she
received one unit of direct donor blood (her friend) and one from a blood bank.
30
The blood bank blood tested negative for HIV so that this patient's exposure likelihood
was remote; she subsequently tested negative for HIV.
31
The court held that the defendant was negligent in its administration of the blood and
was liable for damages since it violated various sections of the Deceptive Trade Practices-
Consumer Protection Act: false, misleading and deceptive acts.
32
The appellate court saw the claim as a medical negligence claim and the “sole
distinctive feature in her claim is the type of injury she claims to have suffered, mental
anguish arising from the fear of contracting HIV, and eventually AIDS, as a result of
receiving banked blood.”
33
This court was presented with a very narrow question: May a patient be compensated
solely on the basis of fear? While her body had been entered there was conclusive proof
that she received AIDS-free blood. So what was the harm; a pinprick?
The Texas court analyzed that the fear must be a “reasonable” fear, “that … [the
damages] finds its origin in actual exposure to a substance or condition capable of causing
27
Id.
28
Id. at 152.
29
933 S.W.2d 668 (Tex. App. 1996).
30
Id. at 670.
31
Id. at 671.
32
Id.
33
Id. at 673.
10

the feared disease or malady.”
34
Presumably the court would have found a reasonable basis of the fear if the actual blood
transfused had been AIDS tainted; but it was not. Direct exposure to the disease causing
agent is the “indispensable requisite” to recovery.
35
“A few jurisdictions do not require actual exposure to the disease causing agent. It is
sufficient, they say, if the fear is a reasonable one, with the question of reasonableness
being left to the trier of fact.”
36
… AND THEY’RE OFF!
Although what I have described above represents simple tort law and is sufficient
for the “basic” case, unfortunately few cases are “basic” and before you decide to accept a
medical negligence case, there is more to the brew. This is where science and art
converge.
The Supermarket Clerk Test
37
This category reflects how the case will play in Peoria. To make the next point I
am forced to mix metaphors, baseball for horse racing, but I like cases which represent
“slow pitches down the middle of the plate.” By this I mean cases which pass the
“supermarket clerk test.”
In this test, place yourself in the position of the supermarket clerk, your average
juror, and, on a busy afternoon, while you present to her your groceries on a busy Friday
afternoon, she must become so distracted with your rendition of the facts of the case that
she listens to you, becomes enraged and exclaims, “That’s outrageous. Even I know you
34
Id. at 673-74.
35
Id. at 674.
36
Id.. see Faya v. Almaraz, 620 A.2d 327, 339 n.10 (Md. 1993); Castro v. New York Life Ins. Co., 588
N.Y.S.2d 695, 697 n.11 (Sup. Ct. 1991).
37
The author acknowledges attorney Leonard Schroeter of Seattle, WA who provided the nucleus of this
idea in 1980-81 when the author worked in Mr. Schroeter’s law firm.
11

can’t do that!”
If you must engage in a complicated scenario with added facts and educate the
supermarket clerk with complicated scientific theory, you have lost. Juries are skeptical,
give the benefit of the doubt to health care professionals, and if you can’t make their blood
boil, you can’t win at trial. Look for callous, indifferent, inhumane conduct where all the
practitioner had to do was “act like a mensch” to help the patient; these are excellent fact
scenarios for the plaintiff. The jury must feel that a very great injustice was done to this
patient for you to win at trial.
Your Client
How much of a media darling, in the jurors’ eyes, would be your client? You
watch the news; will your client play in Peoria? It goes without saying that who your
client is as a person and with all of his life’s accumulated detritus will determine how this
case will play to a jury. This sometimes requires real artistry but the truth is always your
ally. It is when you do not know the truth that trouble will brew.
In a recent case, a patient sought compensation for a wrongful hysterectomy and a
large part of her damages stemmed from a dashed career in modeling due to post-
hysterectomy pain, dysparunia, and from her desire to have more children. The defense
conceded liability but as the efforts to settle bubbled away, we became aware of some
important truths: the husband had a vasectomy allegedly as a temporary birth control
method. This position was untenable. Second, and most destructive to her case was the
fact that she had been raped as a teenager. She hadn’t disclosed this rape to her doctor
who performed the hysterectomy. While only the plaintiff knew this fact, it was impossible
not to settle this case at a substantial discount as soon as possible.
The variations on this theme are many. Always maintain lines of communication
with your client and encourage them to share their “secrets.” For this reason, it is
imperative to “get to know” your client outside the office and to make it an habit to
frequently meet with our clients so that you have an impression as to really “who they are”
12

outside of that first client interview.
38
If you do not like the client, you may be sure that neither will the jury. But this is only a
factor in the analysis and with some polishing and spin-control, some behavior
modifications, even the most difficult client may present a convincing case.
39
Remember this, you don’t need a perfect client to win, just an honest, well-behaved
client.
In one case the client had been sitting in a car with some other friends when he was
blown away by rival gang gunfire. He was transported to a local hospital in ample time but
treatment was delayed so that he hemorrhaged to death in the E.R.. The fact that he had
been engaged in drug dealing and had been convicted on various felonies made him an
unappetizing client but this was not admissible since it had no relevance to the act of
medical negligence; the case settled in the low six figures.
38
ELLIOTT B. OPPENHEIM, THE MEDICAL RECORD AS EVIDENCE §6-1 (Lexis 1998) [hereinafter THE
MEDICAL RECORD AS EVIDENCE]
39
I delve into these interview skills in great detail in THE MEDICAL RECORD AS EVIDENCE §§ 6-2-6-4.
13

The Defendant
As with the plaintiff, how would your defendants play on 60 MINUTES? One of the
main obstacles to the successful conclusion of any medical negligence action is the
defendant's stature. Health care professionals wear the white coat into the courtroom so
“who” the health care professional “is” becomes as much a part of his medical negligence
insurance policy as his team of well heeled attorneys with unlimited budgets for his
defense.
It is said that at trial, the doctor wins 9:1. It is before trial, then, where cases may
be settled with the vulnerable defendant. In New York, Dr. Orentreich40
is such a
vulnerable defendant who has been involved in perpetual litigation.41
If you have a vulnerable defendant, one with numerous suits, for instance, he may
not want another lawsuit and may consent to settle. Further, the defendant with a
significant disciplinary or criminal history is vulnerable and he may want a quick
settlement.
“Drugs, sex, and rock ‘n roll” cases involve the vulnerable defendant, and, even
with limited damages, may be easily settled. Since the facts speak for themselves in terms
of medical negligence standards, the medical profession usually jumps on the band-wagon
as experts, and the departure from the standard of care is so egregious that the case falls
of its own weight. For the defense, the case won’t pass their supermarket clerk analysis.
Doctors who prey on patients or who over or mis-prescribe; doctors who leap over the
40
Thanks to Attorney Judy Keenan, KEENAN@lawyer1.com (Judy A. Keenan), for calling this
vulnerable defendant to the author’s attention in her communication to the ATLA medical negligence
website.
41
Newman v. Orentreich, 580 N.E.2d 410 (1991); Richardson v. Orentreich, 477 N.E.2d 210 (1985);
Newman v. Orentreich, 1991 N.Y. App. Div. LEXIS 5149 (1991 ); Hoffson v. Orentreich, 1991 N.Y.
App. Div. LEXIS 4031(1991 ); Newman v. Orentreich, 169 A.D.2d 546 (1991); Hoffson v. Orentreich,
168 A.D.2d 243 (1990); Newman v. Orentreich, 1990 N.Y. App. Div. LEXIS 7644 (1990); Hoffson v.
Orentreich, 1990 N.Y. App. Div. LEXIS 3180 (1990); Reboa v. Orentreich, 1988 N.Y. App. Div.
LEXIS 55 (1988); Reboa v. Orentreich, 1987 N.Y. App. Div. LEXIS 42629 (1987); Orr v. Orentreich
Med. Group, 1987 N.Y. App. Div. LEXIS 41299 (1987); Orr v. Orentreich Med. Group, 128 A.D.2d
469 (1987); Richardson v. Orentreich, 99 A.D.2d 688 (1984); Richardson v. Orentreich, 97 A.D.2d 9
(1983); Stander v. Orentreich, 627 N.Y.S.2d 879 (1995).
14

bounds which are set by common human decency are vulnerable defendants.42
Medical Record Analysis
Another factor, one of the most important and frequently overlooked factors in the
analysis, are the medical records. Medical records create a presumption the jurors’ eyes.
What do the defendant's medical records look like? Will a jury accord the records respect
or disdain? Cases which may be made in the defendant's own records, are the strongest
cases. In general, a case which relies upon favorable testimony from the defendant to
support your client’s version of the facts, without support from the medical records, is a
loser.
If the records look as if they were done by a barnyard animal, then the jury will be
impressed with the defendant's slovenly approach to his medical care. The converse is
true. Beautiful, well-organized, methodic medical records which tell a jury that this doctor
should be believed are also hard to overcome. It is almost impossible for a jury to ignore
the impression created by medical records.
If there is fraud in the medical records by way of alteration, destruction, or “spin”
through deception, then your case has become much stronger.43
When you can find
spoliation, this will tend to remove the doctor’s white coat and may make the case
indefensible.44
Important Medical Factors:
As a general rule, it is difficult to litigate cases in which there is a serious
42
See Haley v. Medical Disciplinary Board, 818 P.2d 1062 (Wash. 1991) (disciplining a physician where
he initiated sexual contact with a sixteen year old girl after the physician-patient relationship concluded.
The Washington Supreme Court held that a physician’s conduct is subject to regulation where the
conduct “relates to” the practice of medicine.) and see Nghiem v. State of Washington, 869 P.2d 1086
(Wa.App. 1994)(providing another florid example of a vulnerable defendant).
43
THE MEDICAL RECORD AS EVIDENCE ch.4.
44
THE MEDICAL RECORD AS EVIDENCE §4-19(c). (discussing Moskovitz v. Mt. Sinai Med. Ctr., 635
N.E.2d 331 (1994) where a physician sealed his fate by altering his records). see also ELLIOTT B.
OPPENHEIM, BEFORE AND AFTER: SPOLIATION OF EVIDENCE IN MEDICAL NEGLIGENCE LITIGATION
(Terra Firma 1996) (written as the LL.M. Health Law thesis at Loyola University Chicago, School of
Law) Call: 800-416-1192 to order.
15

underlying medical condition. Causation becomes a major litigation issue.
To illustrate:
(1) A woman fell from a ladder and sustained a complicated proximal humerus
fracture. It is very difficult to litigate negligence in this context since her underlying
condition includes a terrible prognosis under the best of circumstances.
(2) A patient in deep diabetic coma, found after perhaps two days, sustained brain
damage. It is almost impossible to link causation since this condition, itself, creates a
terrible prognosis.
• Beware of these complicated medical condition cases even when there is a discrete
departure from the standard of care.
BEWARE OF THE MEDICAL “TWO-STEP”:
It is not unusual for the medical facts to require a “two step” analysis to “get” to the
departure from the standard of care. These cases are very difficult.
To illustrate:
In an obstetric case, the plaintiff alleges that the (1) defendant should have done
something differently. The departure from the standard of care is not a major STOP sign
type of departure. (2) Had the defendant done something differently, then the result would
have been different.
More specifically, in an obstetric case where the mother had a set of twins, the
providers did not perform biophysical profiles, did not measure amniotic fluid volumes,
although they did do some ultrasounds. Then, about three weeks after the last ultrasound,
which results weren’t perfect but weren’t alarming, the mother presented in labor and lost
the twins. One twin was dead at birth; the other died about a year later.
Here, the defendant “approximated” the standard of care — didn’t floridly violate
some obvious indicator — and the twins died. The plaintiff argued: should have performed
16

biophysical profiles … but the standard of care allows for ultrasounds every three to four
weeks. “How were we to know what was about to happen?,” the defendants argued.
This type of case relies upon a soft departure from the standard of care and then
requires the defendants to do something more. Such cases are very hard to win or even to
settle.
GENERAL OBSERVATIONS:
Based upon thirty years of case analysis, some general bright lines emerge:
KNOW THE JURY VERDICTS AND SETTLEMENTS:
One of the first tasks in a case analysis, apart from the medical liability analysis, is to
thoroughly research the jury verdicts and settlements in similar cases within the
jurisdiction. It is a harsh reality, but the costs of a medical negligence case is so high and
the risk so great even in very good cases, that the “bottom line” analysis — case value —
must drive the intellectual decision whether to take a case from the “get go.”
Recently, this author failed to engage in such analysis and discovered that two dead
babies in South Dakota were worth $75,000. In an arbitration presided over by a federal
Magistrate, his Honor stated, “Do you realize that there has never been a verdict in this
state’s history in excess of $100,000 for a child. In South Dakota, survivors are
compensated for lost economic benefit to the parents … and that’s it.”
What would we have done differently had we known that fact going into the case? I
suspect that we would not have taken the case … spending about $25,000. In addition,
the State of South Dakota had a subrogation claim of $300,000 on one of the babies who
died after a year long struggle. The State shared in proportion to the amount recovered
with respect to it subrogation claim and paid its proportion of attorney fees. The bottom-
line was that the family received about $30,000, for two dead babies!
17

TOUGH CASES:
Even where liability is a “walk,” where the case involves an esoteric area of medicine
or a very high risk area, such cases become very difficult to litigate. The reason is that in
obscure areas, it is hard to identify and to document the standard of care. For instance, if
only three surgeons in the world perform a certain operation, they, in their practices, form
the standard of care. In addition, in general, expert witnesses would be impossible to find.
High risk medical care is very difficult to litigate.
For instance, it is difficult to criticize a trauma team for inadequate blood replacement,
where the patient sustained a gunshot wound to the abdomen. Medicine is practiced
prospectively and, yes, it is obvious that the patient didn’t get enough blood — but “in the
OR it sure looked different at the time.”45
AUTOPSY:
In general, it is almost impossible to “run uphill” against the weight of an autopsy.
Pathologists are the Supreme Court46
in medicine and, as a general premise, the attorney
must fit the autopsy results into the case theory. More, specifically, where autopsy
findings are incompatible with the case theory, this presents a “check mat” in most cases.
On the other hand, suppose the autopsy is deficient; incomplete; unsupported by the
fact or the autopsy is silent on an important matter but these defects help the plaintiff’s
case theory, then there is “room to dance.” In a recent murder defense, the medical
examiner’s autopsy was incomplete and did not present a logical path from the incident to
death. The autopsy was conclusory; patient died from the trauma. But the pathologist was
unable to show, precisely, how the trauma caused the death … some eight years later.
The pathologist faltered. There was no direct line which caused death and, in fact, the
45
The surgeon’s testimony …
46
A medical joke: Internists know everything and do nothing; surgeons know nothing and do everything;
pathologists know everything and do everything … but they are just a little bit late.
18

pathologist had to admit that the medical examiner was unable to pinpoint a cause of death
other than through an empiric analysis.47
PERMENANCY:
Watch out for these cases: great case; damages are not permanent…patient all better.
Where you try the case, you may get a resounding liability finding, but little to no money.
The patient who has undergone an excruciating ordeal but who appears “all better” with
no significant future medical expenses, may not raise a sufficient sympathy factor for a jury
to “write much of a check.”
Recently, I consulted with a very experienced attorney on a plastic surgery case in
which a patient underwent a panniculectomy. In this case, a plastic surgeon removed a 56
pound pannus and then the patient went on to have a massive wound infection … which
the surgeon ignored. Then, two months later, when another surgeon operated on her, he
found two sponges the original surgeon left in the wound when the original surgeon
performed a debridement some months after the initial surgery.
This woman really suffered: four months with massive pus drainage: 4,000 cc’s at one
time; visiting nurses twice a day doing dressing changes. At trial (in this state defense
counsel insists upon trying everything), the jury found that the physician was liable for
malpractice and awarded $5,000. Parenthetically, the attorney had already settled against
two other defendants for a significant amount but apparently the jury didn’t feel that the
doctor, himself, injured her very much.
General rule: In a case where the patient is “all better,” unless there are great
47
Pathologists must conform to Daubert principles and an empiric observation doesn’t cut it. In this case,
the patient had been on a ventilator and was brain dead for eight years … then died. But there was no
telltale anatomic evidence. Yes, the patient heart stopped, but why? “This is often the case with
cephalomalacia … they just die,” opined the pathologist.” But was it the case here with this man? The
pathologist was unable to be more precise in the detection of the précis mechanism leading to death:
“maybe arrhythmia, cerebral insufficiency” … what caused death?
19

photographs and / or video to illustrate the “ordeal” the jury may fall short in the award.
Be careful about the case expenses in such a litigation.
A WARNING ABOUT EMPIRICAL ANALYSIS:
Sound case theories must be based in sound science and medicine. The empirical
analysis pitfall is a trap experienced trial lawyers avoid. An empirical analysis is one which
centers upon “the obvious.”
For instance, a man dies. Moments prior to the MI, the patient received a medicine.
Therefore, the medicine caused the death; therefore, to give that medicine departed from
the standard of care. Therefore, the case is a “good” (valid) medical negligence case.
Trial lawyers frequently decide upon a medical case theory, selecting it from their lay
“common sense” background rather than developing a scientifically based, medically
sound theory. They then shop the case out for expert witness opinions based upon their
medical case theory.
In jurisdictions where it is possible to plunge well into the course of litigation without
a sound case liability, causation, and damage theory, it is possible to do much damage.
Attorneys should resist such empiric case theories, as tempting as they may appear.
SETTLEMENT:
One thing I have learned in doing many cases is that you may be able to settle a
case prior to trial, but always prepare as if you are going to try the case. When you have a
vulnerable defendant, a well demarcated departure from the standard of care, good
causation, and sufficient damages, favorable medical records, you may be able to settle
without filing suit.48
If a case has this settlement potential, then you may take it even
though the damages are not great but you must hold the “departure from the standard of
48
In two cases, Mr. Alan Hall of Edmonds, Washington was successful. No discovery was done and both
cases were resolved without litigation.
20

care” trump card. Without it, you have no case.
THE COMEDCO, INC.™ FORMULA
Many attorneys become frustrated when they have a medical negligence case
sitting on their desk since they have no objective “feel” for the analysis. If numbers are
applied to the above factors, seven categories in all, then there is an objective standard on
whether to take the case:
Duty = 10 (20)49
Departure =10 (20)
Causation =10 (20)
Conduct =10
Damages = 10
Plaintiff = 10
Defendant =10
Total Maximum = 70 (100)
You could assign 10 points to each category so that your ideal case, the absolute
perfect case, would rate 70, ten in each category. As noted above, though, this is a
sequential analysis so if your case finds no duty, stop the analysis. If there is a duty, then
you assign a full ten points. The same is true at the departure step and at causation. If you
have a 10 for damages but the other factors are weak, then you would consider whether
you have a loser.
To take these relative factors into account, I double the points for Duty,
Departure, and for Causation and this has the neat effect of adding to 100 points. Keep in
mind, that the average case could total 20 (duty), 10 (departure), 15 (causation), 10
(conduct), 5 (damages), 5 (plaintiff), 5 (defendant) = 80. A case which totals 80+ is very
good. One would seriously question taking a case less than 70.
A Great Case:
49
These numbers reflect the weighted analysis.
21

For instance, to illustrate: 40 year old man goes to the E.R. and has terrific chest
pain after Thanksgiving dinner. He is seen by a nurse who telephones the doctor. The
doctor tells the nurse to send him home with antacids and diagnoses over the phone
“dyspepsia.” The man dies from a massive myocardial infarction six hours later and could
have been saved by a percutaneous angioplasty. Further, had he been seen by the doctor,
an EKG would have been positive and the man had a terrible cardiovascular history. The
medical records don’t exist; the hospital has a bad track record in JCAHO surveys and has
been cited for sloppy E.R. policies and procedures.
22

THE COMEDCO, INC.™ ANALYSIS
Duty = 20- the doctor was an E.R. doc who wanted to eat his dinner rather come to see
the patient.
Departure = 20- this is terrible medical care (against BOTH the doctor and the hospital)
Causation = 20 - autopsy disclosed a tight LAD which occluded
Conduct = 10- this would enrage any juror. Note further that this care would trigger
EMTALA.
Damages = 10- the decedent was a middle-aged fellow supporting a family
Plaintiff = 10- Baseball coach and devoted father. Non-smoker; not diabetic- would have
lived; no negative impeachment materials
Defendant - 10 - hospital has been cited for E.R. docs not in the facility; doctor has several
egregious malpractice suits.
This case is an obvious winner but let’s now suppose that the doctor was not an E.R.
doc but a family doctor called at home and that the patient didn’t want to come to the E.R.,
that the hospital was “AAA” gold, the doc pristine, the medical records ideal:
The coMEDco, Inc.™ Analysis:
Duty: 10- here the doctor may have had a duty to respond; maybe not.
Departure: 10 - if no duty, then no departure. But- if some duty, then to not see the
patient or to send him to the E.R. would be problematic … but maybe not
egregious if the patient refused treatment or refused to go to the E.R.
Causation: 10- this was the man’s third serious episode and maybe his longevity was in
serious doubt. The defense will argue that death was inevitable … and jurors will
believe it.
Conduct: 5- this doesn’t exactly make your blood boil
Damages: 4- irregular wage earner, kids grown, wife works.
Plaintiff: 5- smoker / diabetic / alcoholic who didn’t take of himself; DUI a year ago
Defendant: 3- (this scale reflects the plaintiff's analysis so positive points are given for
“bad” conduct or impeachment fodder- good medical records reduce the score).
Total= 47
This analysis adds up to 47 which is predictive of an inability to settle and suggests
that much work would need to be done to “massage” facts and to get your experts to “help”
in their testimony. This sort of case will be tried because the plaintiff will want too much
money to settle and the defense will vigorously and righteously defend their client since, so
far as they are concerned, he did nothing wrong, the plaintiff contributed to his own demise.
… THE FINISH LINE
Having been involved in thousands of cases over nearly thirty years, it appears to me
23

that there is no such thing as a perfect medical negligence case. Every case has problems and
every case, no matter how good, can be ruined. The standard is stiff; the juries are skeptical
and the statistics are terrible: defendants win 9:1 at trial. For these reasons, case selection in
medical negligence litigation is everything since you can’t make a silk purse out of a sow’s
ear. I often tell clients that I am their investment counselor and the question they really are
asking is whether they should invest in this case or place money into another form of
investment, probably more secure.
This scale is no substitute for experience and sometimes a lawyer may take a case to
prove a point, because he feels he can out think or out maneuver the defendants, for the
experience of learning about these cases, or because there is a good departure from the
standard of care and the client wants to proceed even in the face of low damages. Never
substitute this analysis technique for your client’s goals and for your professional sense of
what is right.
That being said, the analysis of whether to take a medical negligence case is
susceptible to a quasi-scientific formula consisting of seven predictable and knowable factors.
It is important for a lawyer to employ reliable experts who can perform the medical analysis
required in steps 1-3. Remember that almost any successful case will pass the supermarket
clerk test and cases which are a slow pitch down the middle of the plate, above 80, should
finish as a “win.” In general, though, you can’t make a silk purse out of a sow’s ear. If a case
tallies less than 70, it is marginal.
This scale is also useful to determine which cases to take over others and how to best
apportion valuable financial and human resources within a law firm. My recommendations are
conservative and others may view this analysis regime as too rigid. THE ANALYTIC PROCESS
IS ABOUT WHETHER YOU CAN WIN AT TRIAL; IF YOU DON’T FEEL YOU CAN WIN AT
TRIAL, THEN DON’T TAKE THE CASE. THE DEFENSE WILL SENSE THIS “TRIAL
UNWILLINGNESS” AND GUESS WHERE YOUR CASE WILL HEAD …?
24

Unsolicited Client Comments coMEDco, Inc.™
coMEDco, Inc.™ and
Elliott B. Oppenheim, MD/JD/LLM HEALTH LAW Disclaimer
DISCLAIMER: This article does not constitute legal advice to be applied in any case. The
article is written for illustrative and informational purposes only. Neither Elliott B.
Oppenheim, MD/JD/LLM HEALTH LAW nor coMEDco, Inc.™ practice law nor offer legal advice. Do
not utilize any information in litigation from article without exercising full professional due
diligence. Neither Elliott B. Oppenheim, MD/JD/LLM HEALTH LAW nor coMEDco, Inc.™ are
responsible for any acts of an individual or individuals who use this article in any way.
WARNING: While every effort has been made to make certain that the material in this article
is accurate and up to date, do not rely upon this article as authoritative when applied to an
individual case.
Terra Firma Publishing Co.
sanTa Fe, nm
™
©EBO 1999
TO: All Attorneys
Re: coMEDco, Inc.™ General Services
DATE: August 2004
_______________________________________________________________________
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
When your client presents a medical negligence problem, please call coMEDco, Inc.™ , a national
corporation exclusively devoted to plaintiff related matters involving the interface between medicine and
law. I will perform a preliminary review on any case for $1,000 and provide a phone consultation. You
may send the relevant medical records and your check by FedEx to:
36 Camino Tres Cruces
Santa Fe, NM 87506
• Elliott B. Oppenheim, MD/JD/LLM HEALTH LAW offers a unique combination of
education, training, and experience devoted to case evaluation and trial consultation
for medical negligence litigation and nursing home litigation. In addition, he works in
areas of health care criminal defense, health care licensure and hospital credential
issues. Experienced — 29 years — in all aspects of medical negligence litigation:
obstetrics, cardiovascular, perinatology, cancer, brain injury.
• TRIAL CONSULTATION AND ANALYSIS: prepare all depositions, all discovery.
Attend trial and assist in all phases of trial work including opening and closing

Unsolicited Client Comments coMEDco, Inc.™
statements, jury selection and analysis including mock jury. Summary judgment
consultation and evidence and discovery issues, a specialty.
• coMEDco, Inc.™ will refer you to well-qualified experts who will testify at trial
if they find a departure from the standard of care. I will work with the expert witness
to make sure that you will get the testimony you need for your client’s case.
• NEGOTIATIONS: Elliott B. Oppenheim, MD/JD/LL.M. HEALTH LAW will assist an attorney or
work independently to negotiate settlements. Dr. Oppenheim will negotiate in other areas:
health care contracts; criminal plea agreements; child custody; hospital privilege issues;
contracts involving the nexus between medicine and law.
• coMEDco, Inc.™ Briefly Stated MONOGRAPH SERIES ™ offers technical
monographs which give you the “software” you need for litigation problems in medical
record analysis, EMTALA, spoliation of evidence, evidence and the medical record .
• MOTOR VEHICLE LITIGATION: fundamental medical case analysis; prepare deposition questions
for expert witness and treating physician testimony in discovery and trial; literature searches;
demonstrative evidence.
OFF-THE-SHELF LITIGATION MATERIALS WHICH WILL ALLOW YOU TO LEARN AN
AREA EFFICIENTLY AND QUICKLY.
→ And more … Sci e n tific Evid e n c e Analysis, Dau b e r t Motion s , jury sel e c ti o n ,
cas e th e o r y de v e l o p m e n t .
Would you like one of these complimentary articles?
1. NURSING HOME LITIGATION- A PRIMER FOR TRIAL LAWYERS
2. CROSS-DISCIPLINE TESTIMONY IN MEDICAL NEGLIGENCE LITIGATION
3. THE OTHER WAY TO WIN: AVOIDING AVOIDABLE PITFALLS
4. THE DEMISE OF THE LEARNED INTERMEDIARY EXCEPTION AND DTC PHARMACEUTICAL
ADVERTISING
5. SCIENTIFIC EVIDENCE IN MEDICAL NEGLIGENCE LITIGATION: A TRIAL LAWYER’S PRIMER
6. SPECIAL NEEDS EXCEPTION: UNITED STATES SUPREME COURT LIMITS POLICE MEDDLING IN
MEDICAL CARE
7. THE HIPAA ERA: IN THE ELECTRONIC GARDEN OF GOOD AND EVIL
8. LOSS OF A CHANCE DOCTRINE: THE FORGOTTEN SOLDIER IN MEDICAL NEGLIGENCE LITIGATION
9. OUTSIDE THE ENVELOPE: DELINEATION OF THE PHYSICIAN-PATIENT RELATIONSHIP
10. THE NEW JCAHO STANDARDS OF JULY 2001- DISCLOSURE OF UNTOWARD HOSPITAL EVENTS
JUST SEND AN EMAIL TO COMEDCOINK@AOL.COM AND REQUEST BY NAME AND NUMBER…FREE!
Sincerely,
Elliott B. Oppenheim
Elliott B. Oppenheim, MD/JD/ LL.M. Health Law
for coMEDco, Inc.
coMEDco, Inc.™ accepts Visa, MC, and American Express
credit cards for all purchases including consultations.

Elliott B. Oppenheim, MD/JD/LLM HEALTH LAW Brief CV
Abbreviated CV
ELLIOTT BERNARD OPPENHEIM, MD/JD/ LL.M. HEALTH LAW
Former Physician in Family Practice**/ Emergency Medicine
**Formerly Board Certified in Family Practice by the AMERICAN BOARD OF FAMILY PRACTICE
ELLIOTT B. OPPENHEIM, MD/JD/LL.M. HEALTH LAW DOES NOT PRACTICE LAW OR MEDICINE
• Education
1965 Pennsbury High School, Yardley, Pennsylvania
1969 B.A. Occidental College, Los Angeles, California 9/65-6/69
1973 M.D. University of California, Irvine, School of Medicine
Irvine, California 9/69-6/73 [with Clinical Clerkships at Oxford University (thoracic
surgery) Harvard University (general surgery), Stanford University (cardiovascular surgery)]
1973-1974 University of Washington affiliated hospital -
7/73-6/74 Providence Hospital, Seattle, WA Surgical Internship (PGY-1)
1974-1975 University of British Columbia, Vancouver, BC, Canada
7/74-2/75 Vancouver General Hospital Surgical Residency - (6 months)
1995 J.D. Michigan State University College of Law; E. Lansing, MI
8/92-6/95 [formerly Detroit College of Law, Detroit, MI]
Recipient: Jurisprudence Prize in Constitutional Law
1993-summer University of Washington, School of Law
school Seattle, Washington
1995-summer Wayne State University, School of Law-
school Detroit, Michigan
1996 LL.M. HEALTH LAW Loyola University School of Law,
Chicago, Illinois
• Thesis: BEFORE AND AFTER: Spoliation of Evidence
in Medical Negligence Litigation
• Supervising Editor- Journal of the National
Association of Administrative Law Judges
• Note, Calvin v. Chater: The Right to Subpoena the
Physician in SSA Cases; Conflict in the Circuits over the
Interpretation of 20 C.F.R. 404.950(d)(1), 15 J. NAT.
ASSOC. ADMIN. L. JUDGES 143 (1996).
• CURRENT
CEO/President- coMEDco, Inc. - a national corporation specializing in medical-legal analysis,
expert referral, medical and legal litigation related research including evidentiary problems,
research support, discovery, and trial consultation in advocacy techniques and strategy.
• MEDICINE
Family Practice and Emergency Medicine- 18 years active practice (1974-1992); formerly BOARD
CERTIFIED American Board of Family Practice, Diplomate No. 18445; ACLS, APLS, ATLS
Certifications; Former Member ACEP, AAFP, AMA. Formerly licensed in California and
Washington.
SIGNIFICANT MEDICAL-LEGAL CONSULTATION PROJECTS
1. State v. Johnson, No. 97-1-01564-9 SEA, SUP. CT. WA. (King Co., WA) (1997) - criminal defense of
plastic surgeon charged with multiple felony counts of inappropriate conduct with patients. Convicted
on only one misdemeanor count. (in consultation with Ms. Julie Spector, Attorney at Law of Seattle,
WA).

2. Cherukuri v. Shalala, 175 F.3d 446, (6th Cir. 1999)- achieved dismissal of charges in defense of
physician accused of violation of EMTALA. The doctor was fined $100,000! (in consultation with
Mr. Chad Perry, Attorney at Law, Paintsville, KY) before the Departmental Appeals Board,
Washington, DC - wrote both EMTALA appeal before DAB and the brief for United States Court of
Appeals for the Sixth Circuit). (“We respectfully suggest that the Board should review cases like this
one closely and should not simply pass them on to a federal appellate court without providing a
reasoned disposition of the objections raised by the parties.” 175 F.3d 446, 455).
3. Annon. v. Annon., Dallas, TX (confidentiality agreement) (1999): $3.85 million recovered in medical
negligence case concerning brain injury. Permissible details upon request. (in consultation with Ms.
Alicia Slaughter, Attorney at Law, Dallas, TX).
4. State v. Hudson, Sedgewick Co. Dist. Ct. No. 00CR1399 (Wichita, KS) (2001) – criminal defense of
man charged with child abuse / first-degree murder- acquittal on all charges. (in consultation with
Mr. L.J.Leatherman, Topeka, KS).
5. State v. Ocaño, Pima Co., Tucson, AZ (Tucson, AZ) (2003)- defendant accused of CSC with 3 year
old- acquittal. (in consultation with Mr. Jeff Buchella, Tucson, AZ).
Recent Medical or Law Publications
• Nursing Home Litigation: A Primer for Trial Lawyers, 6(2) J.MED.L. 81 (2002).
• Idaho Locality Rule in Medical Negligence Litigation: Grover v. Smith, 31(2) IDAHO TRIAL
LAWYERS ASSOC. J. 33, (2002).
• New Standards Require Doctors to Admit Mistakes in Care, NEW MEXICAN, July 2, 2001, B-
1.
• The Law and Ethics of Web Prescribing, HIPPOCRATES, 44 (September 2000).
• The Weighted Analysis of Medical Malpractice Cases, 46(3) MED. TRIAL TECH. Q. 263
(2000).
• New Rules on Electronic Records: HIPAA’s Proposed Patient -Privacy Standards Focus on
Principles, HIPPOCRATES 22 (January 2000).
• Staying out of Court: Cost-Free ways to Risk-Proof your Practice, HIPPOCRATES 26
(December 1999).
• The Law of Evidence and the Medical Record, 2(2) J.MED.L. 167 (1999).
• Released Against Advice, HIPPOCRATES 20 (September 1998).
• The Medical Record: A New Mexico Lawyer’s Litigation Guide, 4(2) BAR J. (NM) 15
(Summer 1998)
• When Doctors Doctor the Doctor’s Record: Spoliation of Evidence, 26 N.M. TRIAL LAWYER
1 (1998).
• A Doctor’s Perspective on what the Law Should be for End-Of Life Issues, 2(1) J.MED.L. 11
(1997).
• EMTALA: Its First Decade; A Retrospective Analysis of 42 U.S.C. § 1395dd, 43(4) MED.
TRIAL TECH. Q. 77 (1997). Listed: http://www.uplaw.net/articles.htm.
• Scoping Out the Medical Record: The Key to Understanding Medical Care, 51 WA. ST. B.J.
22 (1997)
• A Review of the Emergency Medical Treatment and Active Labor Act, 85 ILL.BAR J. 212
(1997).
• The Baseline: Detecting the Doctored Medical Record, 14(1) Medical Malpractice Law &
Strategy 1 (November 1996).
• A Trial Lawyer’s Guide to the Medical Record, 84 ILL. BAR J. 637 (1996).
• The Risks of Doctoring Records, HIPPOCRATES 34 (September 1996).
• Note, Calvin v. Chater: The Right to Subpoena the Physician in SSA Cases; Conflict in the
Circuits over the Interpretation of 20 C.F.R. 404.950(d)(1), 15 J. NAT. ASSOC. ADMIN. L.
JUDGES 143 (1996).
• Honorable Mention- National Writing Contest of International Association of Defense
Counsel (1995) for Physicians Against Their own Patients: What Happened to the
Privilege? 63(2) DEF. COUNSEL J. 254 (1996).
• The Trial Lawyer’s EMTALA Manual, 11(4) PROF. NEG. L.REP. 73 (1996).

• EXAMINING MEDICAL RECORDS: How to Know What is Said When you Read What the Doctor
Wrote, 82 ABA J. 88 (1996).
• Keeping it on the Record, 28(2) EMERGENCY MEDICINE 87 (1996)
• Components of a Hospital Medical Record- A Checklist, 10 PROF. NEG. L. REP. 196 (1995).
• The Medical Record Explained, 6(3) OHIO TRIAL 7-12 (1995).
QUOTED:
• Brad Burg, Fined $100,000 for Dumping Patients he Couldn’t Treat, MEDICAL ECONOMICS
112 (November 22, 1999) (reporting the Cherukuri case).
• Tanya Albert, Take care with patient e-mail policies: Electronic communication can
enhance doctor-patient relationships, but already familiar legal traps lurk in the new
revolution: privacy, malpractice and accuracy of information, AMA NEWS (Jan. 22, 2001)
at http://www.ama-assn.org/sci-pubs/amnews/pick_01/prsc0122.htm.
• Internet Pharmacy: Medicine’s Third Rail; reviewed;
http://www.natmedlaw.com/July%202000/internet_pharmacy.htm
PRESENTATIONS / TALKS:
• Brain Fingerprinting: Is it Daubert-Proof? 02 May 2001 – Harvard Medical School,
Department of Psychiatry, Forensic Research Group; Cambridge, MA.
• Prescribing Psychologists Registry, Psychopharmacology- Los Angeles, CA - 14 hours; 2-3
March 2003.
• The Law of Prescribing Medicines, New Mexico Psychologists- Las Cruces, NM, 10
November 2002.
PERIODIC COLUMNS:
• Lexis Law Publishing: Rx Law & Medicine Report, Quarterly (1998-2002).
• Leader Publishing / New York Law Journal Publishing: Medical Malpractice Law &
Strategy, Monthly (1997- present).
*coMEDco, Inc.™ Briefly Stated MONOGRAPHS
*EMTALA: Its First Decade - A Retrospective Analysis of 42 U.S.C. § 1395dd © (Terra Firma, Santa
Fe, NM 1996) (ISBN# 1-930263-00-7) 65 pages, 250 footnotes.
*BEFORE AND AFTER: Spoliation Of Evidence In Medical Negligence Litigation © (Terra Firma,
Santa Fe, NM 1996)( ISBN# 1-930263- 03-1) 175 pages; 600+ footnotes
*The Law of Evidence and the Medical Record© (Terra Firma, Santa Fe, NM 1997) (ISBN# 1-930263-01-
5) 115+ pages; 325+ footnotes
* SCIENTIFIC EVIDENCE IN PERSONAL INJURY LITIGATION: DAUBERT’S GHOST© (ISBN# 1-930263-04-X )
240 pages; 900+ footnotes.

*Books/ Treatises / Chapters
MOTOR VEHICLE LITIGATION: 1500 pages (Litigation One Irvine, CA 2003) coming soon... Discussing the medical legal interface in
this area of law.
LAWRENCE NORDHOFF & ELLIOTT B. OPPENHEIM, VEHICLE INJURY: DEPOSITION AND TRIAL QUESTIONS (Litigation One 2003).
(422 pp.) To order: 888-577-3771.
THE MEDICAL RECORD AS EVIDENCE, 900 pages, (Lexis Law Pub. Co., Charlottesville, VA 1998) (2003 supplement) (ISBN# 1-
55834-889-1) The definitive work in the field of medical evidence. To order direct from Lexis Law Publishing: 800-562-1197; item #
66063; listed: in Evidence Law at: http://www.law.seattleu.edu/information/startingpoints/evidence.html.
in David W. Louisell & Harold Williams, Evidence and Spoliation in Medical Records, ch. 36, MEDICAL MALPRACTICE (Matthew
Bender 2003) ISBN: 0820513709; 100 pages.
Vers. 1/1/04

Elliott B. Oppenheim, MD/JD/LLM HEALTH LAW FAQ’s
COMEDCO, INC.™ FAQ’S- MEDICAL NEGLIGENCE
→ INITIAL ANALYSIS:
The most important step in any case is the fundamental analysis. Does the case have merit? Can the
“case” win, in court, given average jurors, with an average judge?
This fundamental “knee jerk” analysis consists of an initial case overview and an identification of a basic
case theory according to the requirements of tort law: standard of care; departure from the standard of
care; proximate (legal) causation; damages. Obviously, if the case does not contain these elements, there is
no point in moving ahead. This review includes the elements for you, as the attorney, to decide whether
you want to take the case.
In essence, in the economic area, coMEDco, Inc.™ functions as your client’s (and your) investment
counselor: “Can we win? Should my client invest time and money in this case?”
• Consultation Contract: If it would benefit your client, we can work together through the
pendency of litigation. coMEDco, Inc.™ offers a realistic contract which includes all
services.
→ COMPREHENSIVE ANALYSIS:
If the case has merit, the next step is an in-depth “game plan” analysis where all medical records are
obtained and reviewed in-depth. This results in a detailed written report which forms the fundamental
case overview and an approach to winning, whether by settlement or trial.
This analysis identifies case strengths and … weaknesses … vulnerabilities. In addition, according to the
tort element model, this in depth analysis identifies defendants, excludes persons and / or entities who are
not responsible, and then identifies what expert witnesses will be needed. In addition, if the attorney
wishes, it is possible to run database inquires on all defendants to determine licensure actions as well as
other actions which may affect credibility. At this point in the case, it may also be useful to run verdict
searches and engage in a database investigation of the defendant(s).
At this point, a predicted case budget emerges which would include all expert witnesses and the general
litigation costs. In general, one must budget about $10,000 / expert witness if a case does go to trial.
Note: This analysis is written in legal format which, you, as the attorney, may “copy and paste” into a
complaint.
→ DISCOVERY:
Unless a lawyer has medical training, it would be unlikely that the attorney would be able to craft medical
admissions, interrogatories, and deposition questions which will demonstrate to the defense that “they can
run, but they can’t hide.” If this segment of the litigation is well orchestrated and performed, cases
generally settle at some point prior to trial. Elliott B. Oppenheim, MD/JD/LL.M. HEALTH LAW will
prepare these materials. Why send a lawyer to do a doctor’s job?
→ EXPERT WITNESSES:
The quality of your expert witnesses is outcome determinative. coMEDco, Inc.™ refers you to “doctors with blood on their shoes.” These
would be credible physicians with excellent professional credentials. In business thirty years, coMEDco, Inc.™ has significant national
and international contacts with prestigious expert witnesses at any major academic institution. CoMEDco, Inc.™ has no agreement of any
nature with any expert witness. coMEDco, Inc.™ has no involvement with expert witness billings. coMEDco, Inc.™ provides your
client with an ethical referral to a legitimate expert witness and does not participate in the formation of the expert opinion.
→ TRIAL:
If a case does not settle and the case does move to trial, Elliott B. Oppenheim, MD/JD/LL.M. HEALTH LAW will participate in creating
demonstrative evidence, preparing all medical witnesses, writing direct and cross-examination questions.
At all phases, Elliott B. Oppenheim, MD/JD/LL.M. HEALTH LAW, upon request, is available to attend important negotiations,
discovery depositions and other meetings, including trial. Backed by nearly thirty years of experience in medical negligence litigation, it
makes a significant difference at all phases to the defense when the plaintiff works with Elliott B. Oppenheim, MD/JD/LL.M. HEALTH
LAW and COMEDCO, INC.™ .

References coMEDco, Inc.™
NATIONAL REFERENCES:
Mr. Alan Hall, Attorney at Law
425-774-9566 (Edmonds, Washington)
Mr. Paul Levin, Attorney at Law
860-249-7226
(Hartford, Connecticut)
Mr. David Pheils, Attorney at Law
800-874-3177
(Perrysburg, Ohio)
Mr. Stephen W. Bruccoleri, Attorney at Law
(215) 563-4440
(Philadelphia, Pennsylvania)
Mr. Peter M. Zavaletta, Attorney at Law
(956) 546-5567
(Brownsville, Texas)
Ms. Anne Pedersen, Attorney at Law
(215) 790-7300
(Philadelphia, Pennsylvania)
Mr. John M. Ohman, Attorney at Law
208-522-8606
(Idaho Falls, ID)
Mr. Greg Smith, Attorney at Law
503-581-4463
(Portland, OR)
• Additional civil medical negligence references upon request.
• References in criminal litigation cases, upon request.

References coMEDco, Inc.™
Available Same Day → e-mail!
1. A Trial Lawyer’s Guide to the Medical Record, 84 ILL. BAR J. 637 (1996) ©
How to evaluate a medical record, written for practicing attorneys. Detect medical issues, assist you in making a more efficient
presentation to medical experts; know when the doctor has doctored the doctor’s record. $15
2. THE COMEDCO, INC.™ WAY: OBJECTIVE ANALYSIS OF THE MEDICAL NEGLIGENCE CASE © This is
the “how to” guide in case analysis. Tells you how to identify cases which are a “slow pitch down the middle of the plate.”
$50
3. *EMTALA: Its First Decade - A Retrospective Analysis of 42 U.S.C. § 1395dd: With Y2K
Supplement © ISBN# 1-930263-00-7 The materials needed to understand EMTALA and to structure a claim.
$100
4. *BEFORE AND AFTER: Spoliation Of Evidence In Medical Negligence Litigation © ISBN# 1-
930263- 03-1 How would you know when the record has been “modified”? What if the record is simply gone, then what? Revised
and expanded from the thesis written for the LL.M. HEALTH LAW at Loyola University Chicago School of Law, Institute for Health
Law.
$180
5. The Law of Evidence and the Medical Record© ISBN# 1-930263-01-5 A comprehensive presentation of this area
of the law. 125+ pages. $150
6. MEDICAL EVIDENCE IN PERSONAL INJURY LITIGATION: DAUBERT’S GHOST© ISBN# 1-930263-04-X. Due
to the specialized nature of medical opinion evidence, the analysis of medical theory in medical negligence litigation requires a
different approach than the in other litigation areas. This monograph tells you what you need to know to survive a Rule 702
challenge. Includes a detailed analysis of handling the expert witness from either side of the counsel table. 240 pages; 908 footnotes.
$150
7. Unnecessary Surgery: An Important Cause of Action- nearing completion- discusses a form of
medical fraud which is important not to miss in medical negligence litigation. Available 1 February
2003.
$100
→ Same day e-mail - no additional charge ←
Order: 800-416-1192
On the web: http://www.comedco.com
coMEDco, Inc.™ accepts Visa, MC, and American Express credit cards for all purchases
including consultations.
vers.01.01.04

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