Using the Internet Effectively in Medical Malpractice Cases Constitutional Considerations

Using the Internet Effectively in Medical Malpractice Cases

By Mark A. Abramson and Holly B. Haines

The internet has changed the way we investigate and pursue medical malpractice cases. In addition to its inherent ability to allow marketing of your firm or services to the masses, the internet puts virtually unlimited information accessibility, investigative and research capabilities at your fingertips. The internet can be used for medical research when you are first evaluating a medical malpractice claim. It can be used to find expert witnesses to review the medical malpractice claim and provide an opinion as to whether or not medical negligence has occurred. It can be used to investigate the background, credentialing and testimonial or lawsuit history of medical malpractice defendants or expert witnesses. It can be used to locate witnesses or to obtain appropriate service information for defendants. It can be used to find potential demonstrative exhibits such as medical animations or illustrations for use at mediation or trial. Finally, it can be used to conduct verdict and settlement searches on similar cases to arrive at an appropriate acceptable range of settlement for a case. Each of these potential uses are addressed in turn in this article.

I. General Medical Research

When you are first presented with the medical records in a particular case, you must have a basic understanding of the medical procedure or complication at issue to properly evaluate the claim. Before you can begin your research, you must also have a grasp of the medical terminology and abbreviations used in the medical records. To define abbreviations and other medical terms, it is helpful to first visit www.pharma-lexicon.com. Once records have been translated and research can begin, www.Google.com is always the best place to start when researching a specific medical condition or procedure. It is the most popular search engine currently in use, and it is the most user-friendly when conducting research. Google not only provides vast amounts of information and links to informational websites, it also provides articles, abstracts, images, animations, and discussion groups on almost any topic.

To get the most reliable and useful information from a Google search, you should use as many specific search terms related to your case as possible.  If at first you do not find the information that you want, change the order of your search terms and try again.  Google searches are not case sensitive, nor do they include common words and modifiers unless you specifically instruct the search engine to include the terms.  To search for a specific phrase, it is best to search with double quotation marks surrounding the phrase.  This is the most precise form of searching and will significantly limit the potentially unlimited results you receive.  Additionally, if want to exclude certain terms from your search results you just add a negative symbol prior to the word.  Conversely, to specifically include a term in your search results, include a plus sign before the term that must be included.   You will be pleasantly surprised by the information that you receive.

The varied Google sites will often provide you with one-stop shopping for all of your educational and demonstrative exhibit needs.  In addition to using Google for research into medical conditions or issues, you can use Google Images to obtain animations and illustrations of the medical condition or injury you are researching.   Google Video allows you to see live operative procedures and medical examinations.  For live video of operative procedures, we also like www.or-live.com, which has the largest library of operative procedure videos and often broadcasts them live in real-time.  By using these resources, many times you will find an animation, illustration or video of the specific medical procedure you are trying to learn about, which has vast educational uses for you and for the jury if you obtain permission to fairly use the animation or image.

In addition to the image and video capabilities Google provides, Google Books and Products give you access to the medical textbooks and educational resources that are available for the specific area you are researching.  Furthermore, Google Maps will show you where the procedure you are researching is performed, which may focus your search for expert witnesses who perform the procedure at issue.  Finally, Google Scholar is an unlimited source to find scholarly medical articles on the condition you are researching, as well as to research expert witnesses for your case and that are disclosed by your opponent.   Google Scholar is a similar search engine to PubMed, but it is more user friendly for researching information because you do not need to be an expert at performing Boolean searches.  This search engine allows you to search by author, subject, title, or journal, and it is an invaluable site for medical research.  You can also limit your search on Google Scholar to only receive the most up-to-date information with the most recent authoritative articles on your chosen subject.

PubMed is the standard search engine for medical articles and abstracts when researching medical topics.  This source can be searched by author, title, topic, journal, ISBN number or even date of publication.  PubMed is a service provided by the National Library of Medicine and includes more than 15 million abstracts and articles, dating back to the early 1950sPubMed also provides links to other websites that may provide the full text of articles for printing or purchase, as well as other related resources.  PubMed can be found at www.ncbi.nlm.nih.gov/entrez/. Another service provided by the National Library of Medicine is Medline Plus at www.ncbi.nlm.nih.gov/medlineplus/  or www.medlineplus.gov.   This resource provides more general information about all medical conditions and specialties, as well as links to other resources.

Medline also has an extensive database of information regarding prescription and over the counter medications. In addition to a Medline search on prescription drugs or other medications, the Physician’s Desk Reference is available online at www.pdrhealth.com. The PDR contains all of the black box information provided to consumers with their prescriptions and is a critical reference if you are researching a potential medication error or interaction. Another very good website for medication information is that of the Institute for Safe Medication Practice at www.ismp.org.

WebMD advertises itself as the most extensive medical library on the internet. While this is a broad statement to make in light of the information available from the previous sources, it is certainly a useful and fairly reliable up to date website for medical research. To find it visit www.webmd.com. Two other very broad general medical research resources with reliable, peer reviewed information are Medscape and E Medicine, which respectively can be accessed at www.medscape.com and www.emedicine.com.

Almost every medical specialty also has a web site with vast amounts of information for research. The American College of Radiology can be accessed at www.acr.org. The American College of Obstetrics and Gynecology can be accessed at www.acog.org. The American Academy of Neurology can be accessed at www.aan.com. The American Academy of Orthopedic Surgeons can be accessed at www.aaos.org. The American Academy of Family Physicians can be accessed at www.aafp.org. These are just a few examples of medical specialties available online. A quick Google search of any other specialty should bring you directly to the links for those organizations as will www.mdlinx.com, which is the best website for topical research into specific medical specialties. The American Board of Medical Specialties also has a link to the websites of all recognized specialties with board certification and can be accessed at www.abms.org. These medical specialty websites will often provide you with the specific standard of care you are seeking for in a particular case, as well as other resources for research.

In addition to searching for medical standards on specialty websites, the government provides certain guidelines for physicians and hospitals at www.guideline.gov. Many other government agencies and National Medical Institutes provide vast information for research as well, such as statistics on specific medical problems and research studies and their results. Specifically, the Center for Disease Control and Prevention can be accessed at www.cdc.gov. The Food and Drug Administration can be accessed at www.fda.gov. The National Institute for Occupational Health is within the CDC site, and can be accessed at www.cdc.gov/niosh/homepage.html. Finally, most medical textbooks are also now available online either for a fee or for free. You should certainly Google your favorite authorities to see if they are published online because you may save a trip to the closest medical library.

One thing to keep in mind when performing your research on the internet is that online content and online medical publications are not authoritative references to rely upon in Court. They cannot be used as learned treatises for evidence and if you are relying on specific information from an online source to depose an expert, it would benefit your client and your case to confirm the accuracy of the information in the hard copy of the material or by obtaining the government publication of its web reference. All of the sites discussed in these materials are relatively reliable and up to date sources of authority. Due to the vast amount of information available on the web, however, you must be careful not to rely on a web reference with false information. Anyone can create a web site and there are no regulations as to the validity of the content published. Many persons angry at medical professionals have published sites with incorrect and untrustworthy information, so you must certainly use your judgment when relying on websites that do not appear to come from a reliable source.

II. Investigating Physician Backgrounds

Any case involving a physician defendant or expert witness requires you to conduct an appropriate investigation into their background and training. At times, because a physician has long since moved his or her practice, it also requires you to conduct a basic investigation into the doctor or witness’s current whereabouts. These types of investigations used to require either formal discovery during litigation or the retention of an expensive private investigator. With the internet, you can now inexpensively conduct your own preliminary investigation into a physician’s background, credentials and history.

When you first review a case involving a New Hampshire physician or medical provider, the place that you must begin your investigation is the New Hampshire Board of Medicine at www.nh.gov/medicine/. The Board of Medicine website will tell you if the physician involved in your case has an active license, if he or she has ever been disciplined, or if his or her license has been limited in any way. It also will provide you with current information as to the physician’s location for service of process if you choose to file suit.

As with all other internet searches, the best place to begin to investigate a physician is by doing a basic Google search of the doctor. Significant background information can be obtained through this basic search tool. The Google Scholar feature also allows you to determine whether the physician has ever published any authoritative literature, and specifically whether the physician has published literature on the issues involved in your case.

The next step for any investigation is to find out if the physician is board certified in a recognized medical specialty by contacting the American Board of Medical Specialties at www.abms.org. Many physicians claim to be certified in a medical specialty that is not recognized by the national organizations. Counsel should then check the appropriate state medical boards where a physician is licensed. The websites for all state medical boards can be found at www.fsmb.org. Many state medical boards provide licensing and disciplinary information for public access, so it is certainly worthwhile to check the medical board for every state in which a physician is licensed to see what information is available.

The next step is to conduct a litigation and testimonial search of any physician or expert. The first place to begin is with the federal court PACER system. A docket search of the PACER system with the physician’s name will disclose if he or she has ever been a named party defendant to a recent federal case. Many State Courts also have public access docket search systems. In addition to the federal system, a search on Westlaw, Lexis or Findlaw may also result in information about prior lawsuits or testimonial history of a physician defendant or expert. Finally, attorneys should contact their own litigation specialty organization for information on defendants or experts. All states have trial lawyer associations that keep in depth databases regarding physician and expert information, as does the American Association for Justice (formerly ATLA). Similarly, defense attorneys have access to the IDEX database and the Defense Research Institute for testimonial and litigation history about expert witnesses disclosed by plaintiffs.

These initial investigative steps should provide you with a vast amount of information to begin preparing for the deposition of a defendant or an expert witness.

III. Animations and Demonstrative Exhibits

There are vast amounts of images and animations of medical injuries or procedures available on the internet, many which are not copyrighted and are available free for use at mediation at trial. In addition to the free resources, there are numerous companies that can create case specific animations or illustrations for your case for a fee. Many of the medical specialty websites and major medical center websites have videos or animations of specific medical procedures and images of anatomy or injuries specific to a case. Often these are available for use if you contact the publisher of the site for permission. Likewise, a Google Images or Google Video search of a particular injury, medical condition or medical procedure will produce myriad images, animations and videos that may not be copyrighted and that may be available for fair use as demonstrative exhibits.

In addition to the numerous images and animations that may be free to use, you can always purchase a demonstrative exhibit created specifically for your case or from a library of stock medical art images. The most common vendors for medical illustrations and animations are A.D.A.M., Inc, www.adam.com, which provides detailed illustrations with medical explanations for almost every part of the body; the Doe Report, or Medical Legal Art, provides stock illustrations and also develops case specific 3-D or digital animations of medical conditions or procedures. These sites can be accessed at www.medicallegalart.com and www.doereport.com. Finally, many physicians are also artists and will illustrate or animate your case for you. The most reknowned is Frank Netter, M.D., and his website is available for access at www.netterimages.com.

IV. Legal Research - Jury Verdicts and Settlements

An often forgotten, but often the most important use of the internet for medical malpractice cases is an investigation into verdicts and settlements of similar cases. This may be done before accepting a case to determine if a case is worth the investment of time and financial resources to litigate and it is especially helpful before entering into negotiations or mediating a claim.

The first place to begin is with basic legal resources that are available on the web through www.westlaw.com and www.lexis-nexis.com, and their free sister websites www.findlaw.com and www.lexisone.com. Each of these legal research sites allow research into verdicts and settlements of cases by subject matter, key word, party name or even expert witness name. Likewise, state trial lawyer associations and the Defense Research Institute have vast databases of verdicts and settlements nationwide. Finally, there are many personal injury, medical malpractice and jury verdict reviews and reporters that will provide you with either individual verdicts and settlements in similar cases for a nominal fee or that will conduct a nationwide analysis specific to the facts of your case for a substantially higher fee.

The two most popular sites with the widest collection of verdict and settlement information are www.verdictsearch.com and www.juryverdictresearch.com. There is also a relatively new service at www.ejury.com, which allows you to submit your case to an online jury who then provides you with feedback and a potential verdict range. The online jury consists of real people, on the internet, with real world opinions.

Conclusion

The information age is upon us. With the vast resources available to us on the internet, there is more information than we could ever want or need right at our fingertips. As such, it is incumbent upon us as practitioners to know how to effectively and efficiently use the internet to research and investigate our clients’ cases. The resources available on the internet have the potential to create significant cost savings for our clients as well as significant time savings for our staff and ourselves.