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).

In an attempt to answer this question, we address herein the backdrop of evidence-based medicine and where the courts currently stand on this issue.

Defining Evidence-Based Medicine

Evidence-based medicine first came to prominence in the 1980s, when the medical community sought to apply more consistent standards of evidence in the literature, particularly on the question of causality. Contrary to the traditional methods of expert consensus and anecdote, evidence-based medicine is “the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients.” David L. Sackett et. al., Evidence-Based Medicine: What It Is and What It Isn't, 312 Brit. Med. J. 71, 71 (1996). A practitioner using evidence-based medicine integrates their clinical expertise with the best available medical evidence obtained from systematic research.'

Similarly, an expert formulating an opinion premised upon evidence-based medicine first examines the available scientific data, whether clinical trials or observational studies, and then, after careful analysis, formulates an opinion as to causal relationship. This method shifts the focus from experience-based opinion to “a more stringent review and application of high-grade scientific evidence.” Carter L. Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice Guidelines: What Effect Will EBM Have on the Standard of Care?, 61 Wash. & Lee L. Rev. 479 (2004). An evidence-based conclusion is objective and should be reproducible by others familiar with the method employed. As one commenter noted, “Today, the field has evolved so much that systematic reviews are the most highly regarded indicators in determining the strength of medical evidence. The hierarchy of indicators, from strongest to weakest, includes systematic reviews, randomized and controlled trials, observational studies, case series, and, squarely at the bottom, traditional expert opinion.” Stephen Chris Pappas, Curing the Daubert Disappointment: Evidence-Based Medicine and Expert Medical Testimony, 46 S. Texas. L. Rev. 595 (2005). It can be argued that rather than asserting an opinion as to causation, an expert relying on evidence-based medicine is actually providing a conclusion that is based on scientific fact.

Traditionally, forensic experts have relied on experience as the basis for causation opinion testimony. Such opinions are based on authority, tradition, and personal, but anecdotal, experience. An expert using the traditional method typically relies on custom, most recent experience, lessons from medical school, or consensus experience from colleagues. As a result, experience-based opinions are arguably more subjective and are often the reason experts are able to offer differing views on causation in a given case. In contrast, an expert offering an evidence-based opinion begins by examining data compiled with more rigorous scrutiny and review before drawing upon personal experience.

Next month, we will explore the role of evidence-based medicine in the courtroom.

Gary Lovell is a partner practicing in the Atlanta office of Carlock Copeland & Stair, LLP. Kristen M. Kelley is an associate in the firm's Charleston, SC, office.

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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).

In an attempt to answer this question, we address herein the backdrop of evidence-based medicine and where the courts currently stand on this issue.

Defining Evidence-Based Medicine

Evidence-based medicine first came to prominence in the 1980s, when the medical community sought to apply more consistent standards of evidence in the literature, particularly on the question of causality. Contrary to the traditional methods of expert consensus and anecdote, evidence-based medicine is “the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients.” David L. Sackett et. al., Evidence-Based Medicine: What It Is and What It Isn't, 312 Brit. Med. J. 71, 71 (1996). A practitioner using evidence-based medicine integrates their clinical expertise with the best available medical evidence obtained from systematic research.'

Similarly, an expert formulating an opinion premised upon evidence-based medicine first examines the available scientific data, whether clinical trials or observational studies, and then, after careful analysis, formulates an opinion as to causal relationship. This method shifts the focus from experience-based opinion to “a more stringent review and application of high-grade scientific evidence.” Carter L. Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice Guidelines: What Effect Will EBM Have on the Standard of Care?, 61 Wash. & Lee L. Rev. 479 (2004). An evidence-based conclusion is objective and should be reproducible by others familiar with the method employed. As one commenter noted, “Today, the field has evolved so much that systematic reviews are the most highly regarded indicators in determining the strength of medical evidence. The hierarchy of indicators, from strongest to weakest, includes systematic reviews, randomized and controlled trials, observational studies, case series, and, squarely at the bottom, traditional expert opinion.” Stephen Chris Pappas, Curing the Daubert Disappointment: Evidence-Based Medicine and Expert Medical Testimony, 46 S. Texas. L. Rev. 595 (2005). It can be argued that rather than asserting an opinion as to causation, an expert relying on evidence-based medicine is actually providing a conclusion that is based on scientific fact.

Traditionally, forensic experts have relied on experience as the basis for causation opinion testimony. Such opinions are based on authority, tradition, and personal, but anecdotal, experience. An expert using the traditional method typically relies on custom, most recent experience, lessons from medical school, or consensus experience from colleagues. As a result, experience-based opinions are arguably more subjective and are often the reason experts are able to offer differing views on causation in a given case. In contrast, an expert offering an evidence-based opinion begins by examining data compiled with more rigorous scrutiny and review before drawing upon personal experience.

Next month, we will explore the role of evidence-based medicine in the courtroom.

Gary Lovell is a partner practicing in the Atlanta office of Carlock Copeland & Stair, LLP. Kristen M. Kelley is an associate in the firm's Charleston, SC, office.

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