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In the Fast Lane of the Information Highway – The Long and Winding Road

The Internet harbors a wealth of information just ripe for the picking and ready to be delivered to your printer or hard-drive. It is challenging to seek information on the Web, as well as rewarding when your search is successful.

Searching is NOT surfing. Surfing the Internet is going aimlessly from one URL to another. It can be fun and you can obtain information this way. However, it takes time and you may miss the more pertinent sites. There are resources online that are not available anywhere else.

When doing an online search, ask yourself what you are looking for. Keywords such as “medical professional organizations” are just a starting point. Do you want to find specialized organizations? If so, then you should use more descriptive terms such as “neurosurgical professional organizations”. And, if you want to define your search further, add the name of a state or country: “american neurosurgical professional organizations” or “texas neurosurgical professional organizations”

Each search has two parts. The subject and the angle. The angle is the aspect of the subject you really want to know about. The search may be framed “American medical association” but the angle would be added with the word “standards”. If you search on the subject alone (unless the topic is rare or unusual) you may be overwhelmed with irrelevant information.

When you search, use descriptive terms. Search engines are very literal. For instance, if you put in the term “apple” you will get sites referencing the fruit as well as the computer company. If the meaning of your search term is ambiguous or can possibly be misconstrued, you will need to qualify your search query.

Hazards Along the Way

One of the biggest time wasters in net-searching is starting off on the wrong track. You can spend hours going down dead ends. Often the problem starts at the beginning when the searcher makes a wrong assumption about how, where, and whether to proceed. Before you go online try thinking to yourself, “If I found the ideal article/site, what would it be?” Use this as your guide to framing your search query. By doing this exercise before your search, you are capturing the most important concepts and clarifying your goal.

There is no such thing as a comprehensive online search engine. No single search tool works throughout the universe of the Internet. Just as no one approach is best. Sometimes it takes a combination of differing approaches and search tools to obtain the information you are seeking. Try using more than one search query on a variety of search tools.

Remember, just because one technique worked in the last search does not mean it will work now. The Internet is in constant flux with new sites added and older ones discontinued daily. Just as new roadways are built and old ones renovated, the information highway is constantly changing.

Medical Records

Cross Examining the Psychiatric Expert

Fifteen years ago, a psychiatrist moved to town and began conducting evaluations on behalf of various insurance companies. The reports (over l00) were very similar. My clients fit the following categories:
They were blatant liars
There was nothing wrong with them, or
There was something seriously wrong with them that pre-existed, or, even caused the accident
Well, I was confused.

Either I had this Bermuda Triangle over my office sucking all the bad clients of the universe into my waiting room, or, perhaps, the doctor might be a bit biased.

Deciding it was the latter, I spent the last l0 years of my plaintiff’s practice learning everything I could about the cross examination of a psychiatric witness. In so doing, my practice changed such that now I don’t handle cases directly, but am retained by attorneys to take the depositions and trial examination of their psychiatric and neuropsychological witnesses. The education has been astounding. I have had doctors do amazing things. They have alleged they did not need to report those scores that were favorable to the plaintiff’s and only report those scores showing the plaintiff was not brain injured. They claimed they could write a report concluding the plaintiff passed the mental status exam, when the transcript revealed they did not. They have walked out of depositions, cursed at me in Yiddish and advised me that I made them want to vomit. They have instructed me to remove my shirt during a deposition, claimed their powers of observation to be so great they could see under clothing and even identify the color of my underwear (the doctor was wrong, thank you very much).

In many of the depositions, the doctor has either obfuscated the data or outright lied. A pattern emerged.

These “experts” can be exposed. I suggest the following:

BEFORE THE EXAMINATION:

Do a Freedom Of Information Act Request to your state licensing board.

If the doctor works for a university, do a FOI request to the university too. Keep in mind, many universities will permit doctors to conduct outside consulting work. However, in order to do so, they must complete certain forms that list the income and by whom they were retained. This is very helpful in showing bias.

DURING THE EXAMINATION:

Send a court reporter who:

Never leaves your client alone, no matter how long the exam takes (remember, some can last as long as 8 hours and the reporter needs to know this in advance).

Provides the transcript in digital format. This makes it easier to share with other attorneys and is excellent for creating questions for cross examination because word searching capabilities in a digital document speed up the process.

Never releases a copy of the transcript to the defense attorney.

Remembers that YOU hired the reporter, and the reporter answers to you. Some physicians have tried to throw my reporters out of the evaluation. They stay. Period.

Can’t afford a court reporter? Send a tape recorder with your client(s) and make sure your client knows when to turn the tape over by loaning them a watch with an alarm preset to go off at the end of the tape.

Look What the Raw Data Reveals (and why they don’t want to produce it)

Look for erasure marks. I had a doctor instruct a client to erase an answer that indicated the client was suicidal.

Incorrect scoring. Some doctors will score tests and testify that the patient scores out as not brain injured in concentration tests. However, the doctor input the wrong birthdate, thus comparing the plaintiff to much older and more feeble individuals. When the correct birthday is input, the results indicate impaired cognition.

False scoring. It’s a great feeling in the middle of a deposition when the defense doctor admits to testifying that the plaintiff was a malingerer based on a test he or she scored incorrectly.

Using the wrong tests. Lately, many neuropsychologists have been testifying that certain malingering scales reflect lack of motivation. Be careful. Often these tests, in fact, reveal concentration problems.

Playing with cut off scores. Some doctors may testify that someone is flunked a “malingering test.” The test booklet in the doctor’s office reveals, in fact, the patient may have passed. Demand the test booklets and raw data.

Giving too many tests. Some tests suggest you administer several trials. Some doctors administer only one, or, if the test results are favorable to the plaintiff, they keep administering the same test until the plaintiff does poorly and only report the poor scores. The instructions are usually in the test booklet in the doctor’s office.

Giving clues. Many doctors will provide significant clues such as, “Who was the president killed in the 60’s in Dallas?” Then the doctor reports that the plaintiff could remember the presidents back to Kennedy and has no memory problems. Interestingly, the clues were not in the report, nor was the fact that the plaintiff left out most of the presidents between the current one and Kennedy.

Doctor interference. Some doctors administer tests and, in one case, took 6 cell phone calls during the concentration portion of the test. Other issues that affect concentration include the doctor frequently walking in and out of the room in which the is being given or refusing the patient a cigarette break. Make sure the doctor documents the effects of medication on tests. Often the defense doctor will accuse the plaintiff of exaggerating his or her inability to concentrate when, in fact, the doctor is the main cause for the concentration problems. Mild TbI can cause concentration problems but your patient may score out as even moderately brain injured depending on the doctor’s behavior.

Paper reviews. If defense evaluation was done by a psychologist, was it a paper review or did the psychologist actually meet and evaluate the patient? If not, the report itself must contain a disclaimer.1

Transport client. Bring the client to the deposition of the doctor. Sometimes it helps keep the doctor a bit more honest.

Observe the doctor’s waiting room. Recently, a doctor admitted the video camera I observed in the waiting room was for the doctor to spy on the evaluees. If the doctor treats patients, often pamphlets in the waiting room describe brain injury conditions that mirror your clients and are excellent for cross examination.

Using old tests. According to research done by James R. Flynn, he discovered that IQ scores increased from one generation to the next for all of the countries for which data existed. Now, this is what is known as the Flynn Effect. Let’s say you are a defense doctor and you want to show a plaintiff does not have a brain injury. Administer an older version of a neuropsychological test and the plaintiff will score higher, maybe even not brain injured. Demand the doctor use the most recent test (as required by the APA Code of Ethics) and then you might find your client to test out as actually impaired.2, 3

Ignoring the RETEST effect. The doctor claims your client is not brain injured because he administered a test previously administered by your doctor and your client tested out much better. Therefore, defense doctor concludes either your client is malingering or cured. Try neither. Ask the doctor about the retest effect. Many tests, when administered twice, actually result in the patient getting a higher score the second time because they remember stories read to them the first time the test was administered. This does not mean they are better. This is simply a factor of retest effect and many studies exist to determine the exact increase in scores that might be expected based upon this phenomena.

TESTS CONSIDERATIONS

Lees Haley Fake Bad Scale: This is a scale applied to the MMPI2 and is commonly used by defense doctors to claim the plaintiff is malingering. This test is rejected by the authors of the MMPI2 as being unscientific and over-reporting malingering.4

Rey’s 15 Item Memory Test: This is a “malingering” test which defense doctors will claim show your client to be lying. However, if your client is elderly or has a low IQ they may erroneously be classified as malingerers.5 Furthermore, those with focal memory disturbances and diffuse cognitive impairment may perform poorly on this test.6

Halstead-Reitan Neuropsychological Battery (H-R): This commonly accepted neuropsychological battery comes with strict protocol requirements. The authors warn, “many altered and abbreviated versions of the tests in the HRB are being sold by numerous individuals and firms. Anyone using these versions should be aware that they have usually NOT been adequately validated, either through experimental studies or in clinical practice.”

Following strict protocol is crucial when administering this test. “The only authorized version of the HRB for Adults is the one that duplicates the tests EXACTLY as they were when the validation studies were done.”7

MMPI2. This test contains 567 true/false questions. However, frequently the defense doctors administer or interpret it incorrectly. Make sure and investigate the following:

Test should not be taken home (often psychologists, and even more so, psychiatrists permit it. It saves time) However, to do so violates test taking protocol.8

What software is used to grade the MMPI? The psychologists, especially if working for government or university setting, have no idea how the software was obtained or the differences between various software and simply approve the printout as gospel. “Research has shown that test interpretation services differ with respect to the amount of information and accuracy of the interpretations provided.”9

Did the patient leave 30 or more questions blank? If so, the test is invalid10

If the patient is not of this culture, was a culturally appropriate scoring key and proper norms used? In 18 years of deposing psychologists and psychiatrists I have NEVER had this answered in the affirmative. Consider how someone from Cuba might answer questions (a bit high on the paranoia scale?) verses someone from the US.

The defense doctor claims your client is lying because the F scale is elevated. (F= Frequency of items endorsed, NOT Fake) “Extenuating stressful circumstances in an individual’s life can also influence infrequent item responding. Stressful life factors tend to be associated with elevated F-Scale scores.”11 Different cultural background can cause an increase in the F scale. Therefore, culturally appropriate scoring keys and norms are vital.12

DURING THE DEPOSITION

Bring a laptop with an air card. When the doctor fails to bring the articles he relied upon, claiming they exist, turn the computer around and tell him he is more than welcome to look them up on the internet. This works great in a video depo.

Bring a second laptop on which is loaded all prior depositions so prior testimony can be accessed with a word search function on your computer. This is much faster than tabbing hard copies.

The doctor claims to review the medical records. You are skeptical. Bring a plastic bag. At the conclusion of the deposition, seal the records in the plastic bag and advise the doctor you are giving them to the court reporter until your fingerprint expert can pick them up in the morning. Sit back and watch the fireworks.

The doctor claims he didn’t recently alter the raw data and you know she/he did. Get the plastic bag out. Seal the document and advise opposing attorney you are having the ink dated at the lab of your choice. Some labs can tell you if ink is 2 years to 6 months old.

Point out the selective reporting that goes on in virtually every CME. High scales, such as scale 8 on the MMPI2 can indicate the presence of a head injury. Never have I ever had a defense doctor admit to this in a report.

Ask them if the plaintiff did well on the mental status exam. Most doctors administer the Folstein Mental Status Exam which is actually a screening device for Alzheimer’s patients. However, most doctors don’t score the test, fail to ask all the questions, and, more importantly, lie about the results. Ask the doctor if the patient answered the questions correctly. When the doctor says yes, present the doctor with the transcript that reflects many of the questions were answered incorrectly. Then file your Motion to Strike based on fraud.

The doctor testifies that he does 1/3 plaintiff work. Yeah, right. He/she then hands you a list of cases in which he has testified for the last several years but they do not identify if they are plaintiff or defense referral. Point out that he is hiding that information and it would only take a second or two to note on each case who referred it but in leaving that information out, you cannot address bias. Then ask the doctor to identify on the list each plaintiff referral. In every case in which I required the doctor to do this, he was only able to identify one or two percent of his referrals as plaintiff.

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Laparoscopic Cholecystectomy Cases: Maximizing Your Client’s Recovery

Introduction

If you’re hoping for a comprehensive “how-to” book on handling botched gallbladder surgery cases from the initial consultation through the large deposit into your trust account, you’ll be greatly disappointed in what you’re about to read. Many others have undertaken that task, and I will share some of their work so you can check it out if you like. This presentation will focus on some of the practical challenges in handling botched gallbladder surgery[1] cases to help you prioritize your responsibilities and (hopefully) make the most out of your client’s case.

This paper begins with the overused “Top Ten Tips” for handling botched gallbladder surgery cases, followed by specific examples to illustrate how these tips play out in the real world. It concludes with a detailed list of resources that will significantly enhance your understanding of botched gallbladder surgery cases and will provide you with valuable information to assist your clients, with appropriate credit to the authors who truly deserve it.

Top Ten Tips:

  • Know the anatomy
  • Know the indications for surgery
  • Know the risks of surgery
  • Know the instruments used during surgery
  • Know the indications for intraoperative cholangiogram
  • Know the proper surgical technique
  • Know the complications
  • Know the repair techniques
  • Know the likely defenses
  • Know your damages

Know The Anatomy

The SAGES Manual and ACS Surgery (see below) have many helpful illustrations describing the critical anatomy in lap chole cases. Take the necessary time to familiarize yourself with the critical anatomy. In fact, ATLA member Mike Abourezk of Rapid City, South Dakota became frustrated with the lack of anatomical charts showing the process and sequence of lap chole surgery, so he taught himself to use a dry erase board during his opening to accurately draw the anatomy, clip and cut the cystic duct, remove the gallbladder, and perform the Roux-en-Y repair.

Know The Indications For Surgery

Some surgeons use nonspecific complaints of abdominal pain to justify the need for lap chole surgery. According to the American College of Surgeons, the Average Patient who undergoes lap chole surgery is middle-aged, muscular or obese, has recurrent biliary colic, a normal gallbladder wall, and previous pelvic surgery. “Difficult patients” include those who are elderly, morbidly obese, suffer from acute cholecystitis, have a thick or contracted gallbladder wall, and have had previous upper abdominal surgery with potential adhesions. The most important contraindication is “surgical inexperience.”[2] When you obtain your client’s medical records, be sure to determine their preoperative health and review the surgeon’s pre-op notes to nail down the indications for performing surgery.

Know The Risks Of Surgery

The known risks of lap chole surgery include excessive bleeding, infection, injury to surrounding organs, injury to the common bile duct, blood clots, injury to the lower digestive tract, and death. These risks are frequently covered in patient education materials given to the patient when surgery is discussed. Always review these materials in detail with the Defendant to establish the Defendant’s recollection of what was said/how the pamphlet was used, and what reasonable expectations the patient had going into the surgery. It is also important to understand the basis for these risks to deal with the potential defenses discussed below.

Know The Instruments Used During Surgery

The SAGES Manual, ACS Surgery, and many surgical texts describe the operating room layout and equipment needed to successfully perform a lap chole surgery. The equipment includes the following: an optical system, an electronic insufflator, trocars (cannulas), surgical instruments, and hemostatic devices.

The optical system includes a laparoscope, a high-intensity light source, a miniature video camera and camera box, and a high-resolution video monitor. The insufflator creates a working space within the abdomen by inserting carbon dioxide under positive pressure. The trocars are simply ports used to see the operative field inside the patient’s abdomen and to provide access for light and visual images and the surgical instruments. A minimal set of instruments for a lap chole surgery includes graspers, dissectors, clip applicators, scissors, a dissecting electrocautery hook, probes, reducers, endoloops, a Veress needle, needle holders, and a cholangiography catheter system. Hemostasis is typically achieved with electrocautery or the laser.

Know The Indications For Intraoperative Cholangiogram

If the patient is morbidly obese, has a significant prior history of disease or surgery in their abdomen, or if the surgical field is difficult to see due to the patient’s anatomy or internal bleeding, the surgeon can always attempt an intraoperative cholangiogram (IOC) to verify the precise location of the common bile duct before clipping and cutting the cystic duct. Many surgeons, particularly those practicing in a university setting, suggest that IOC be used in every lap chole case. Unfortunately, the national consensus conference called by the National Institutes of Health in 1992 concluded that routine IOC was not a necessary requirement for lap chole procedures, and it is not considered to be part of the standard of care for routine lap chole surgeries. Instead, it is often used as a condition of continued privileging for those surgeons who cause repeated injuries to the common bile duct during gallbladder surgery.

Know The Proper Surgical Technique

[Note: see SAGES Manual, pp. 130-32,”Trocar Position and Choice of Laparoscope” for a discussion of recommended trocar positions and recommendation for a 30-degree laparoscope vs. 0-degree laparoscope.]
Using two atraumatic graspers, gently elevate the liver by passing the graspers under the visible liver edge.
If the gallbladder is not visible, carefully dissect adhesions to the underside of the liver and gallbladder using as little cautery as possible.
If the gallbladder is inflamed and tense, it must be decompressed before attempting to grasp it. This is done using a Veress needle to stab and suction the gallbladder.
When the fundus[3] of the gallbladder is exposed, the first assistant grasps the fundus with an atraumatic locking grasper and pushes the gallbladder over the liver toward the right shoulder to open the subhepatic space and expose the infundibulum.[4]
The surgeon or assistant places a second atraumatic grasper on the base of the gallbladder. KEY: “The direction of traction is critical to prevent errors in identification of the ductal structures in this area.” The infundibular grasper must be retracted laterally while the fundus is retracted toward the right axilla to expose Calot’s triangle.[5] If the infundibulum is retracted anteriorly or upward it creates a “tenting” effect that tends to collapse Calot’s triangle and increase the risk of ductal injury.
Begin dissection “directly adjacent to the gallbladder.” Any adhesions should be sharply taken down to the base of the gallbladder.
“Identify the cystic duct where it enters the gallbladder.” [This is the point where surgical error frequently begins.] The infundibular grasper should be moved backward and forward and side-to-side so the junction of the cystic duct and the gallbladder can be identified with certainty.
Additional incisions can be created in the peritoneum to elevate the gallbladder and create a space behind it to make it easier to identify the ductal structures.
If a cholangiogram is going to be performed, the cystic duct must be dissected free for at least 1 cm to allow cholangiography.
Two clips are placed side-by-side as close to the gallbladder as possible and two similar clips are placed on the cystic duct, using care not to place them too close to the junction of the cystic duct and the common duct.
The infundibular grasper is repositioned to grasp the gallbladder next to the cystic duct. The gallbladder is retracted anteriorly and laterally to expose the cystic artery for dissection.
The cystic artery is divided with clips, leaving a minimum of two clips on the stump of the artery. This division allows the gallbladder to be pulled farther away using the infundibular grasper.
The gallbladder is dissected away from its bed. The instruments used for this vary from hook cautery to cautery scissors or spatulas to laser.
Before the gallbladder is removed, the gallbladder bed and ducts should be closely examined for evidence of bleeding.
Irrigate with saline, using care to prevent dislodging the clips.
After hemostasis is achieved, the gallbladder is freed from the liver.
A grasper is used through one of the trocars to grasp the gallbladder near the cystic duct.
The gallbladder is removed. If the gallbladder contains bile or stones, they should first be aspirated from the gallbladder before it is withdrawn through the trocar.
After removing the gallbladder, the surgical site should be inspected for bleeding.
If necessary, a closed suction drain can be placed. [Open drains are not recommended, because they can increase the risk of infection.]
Remove the trocars and close the wounds in normal fashion.[6]

Know The Complications

The major complications of a botched gallbladder surgery include bleeding, gallbladder problems, post-op bile leakage, and bile duct injury. Although inconsequential oozing of blood is not uncommon, hemostasis is critical before the patient is closed. Any unusual bleeding in the triangle of Calot is cause for concern. Surgeons should not apply clips blindly or they will risk injury to the right hepatic duct, right hepatic artery, or common bile duct. Another difficult source of bleeding is from the gallbladder fossa. Any bleeding between the posterior wall of the inflamed gallbladder and the liver bed should be controlled immediately.

Gallbladder problems include an inflamed gallbladder (difficult to grasp), a perforated gallbladder (leading to contamination of the peritoneal cavity and potential infection), gallbladders containing large stones (difficult to remove through abdominal cavity) and undiagnosed carcinoma. The potential for contamination of the peritoneal cavity is one factor that needs to be considered in the pre-op assessment of whether prophylactic antibiotics should be given before gallbladder surgery.

Post-op bile leakage can result from injury to the cystic duct or right hepatic duct, cystic duct stump leakage, or injury to an accessory[7] bile duct. Any suspected collection of bile post-op should be investigated with radionucleide scan and ERCP, which is used for both diagnosis and treatment.

Most injuries to the hepatic ducts, the hepatic common duct, or the common duct occur during dissection at the triangle of Calot. Improper cephalad traction can cause the cystic duct to lie in a straight line with the common duct, which is then mistaken for the cystic duct. If the injury is detected during the procedure, the surgeon should immediately convert to an open procedure to allow for better access for repair.

Know The Repair Techniques

Depending on where and when the injury to the common duct is detected, it may be as simple to repair as reconstructing the duct over a T-tube, or as complex as performing a reconstruction of with a hepaticojejunostomy/Roux-en-Y procedure. Injuries to the lateral wall of the common duct may be treated with external drainage and biliary stenting.

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