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Evidence-Based Medicine in Medical Malpractice Litigation
Medical malpractice cases are often characterized by the all-too-common “battle of the experts.” Jurors are forced to evaluate conflicting expert testimony as each side advocates that their expert's opinion is more worthy of consideration. However, one facet of this process is frequently overlooked ' the science. While an expert must withstand a Daubert qualification, science often finds itself secondary to advocacy. A competent attorney can poke holes by drawing attention to flaws in an expert's reasoning and experience.
The evolution of evidence-based medicine should cast doubt upon advocacy that masquerades as science, and put courts in the position of deciding when science should prevail. In other words, when an expert's opinion on causation is supported by objective evidence developed through the scientific method, a court, sitting as the gate-keeper, should consider accepting these truths rather than forcing a lay jury to second-guess scientific fact.'
Why does the law have judges and juries “evaluate in-court scientific opinions as much by the expert's eloquence as by the scientific truth of the matter?” Terrence M. Davidson & Christopher P. Guzelian, Evidence-Based Medicine (EBM): The (Only) Means for Distinguishing Knowledge of Medical Causation from Expert Opinion in the Courtroom, 47:2 Tort Trial & Ins. Prac. L.J. 741 (2012).
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