Evidence-Based Medicine in the Courtroom

The Debate

Some argue that standard-of-care opinion testimony should be based on evidence-based medicine as opposed to “customary practice.” (For more information, see, e.g., 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), note 3; Nichole Hines, Why Technology Provides Compelling Reasons to Apply a Daubert Analysis to the Legal Standard of Care in Medical Malpractice Cases, 2006 Duke L. & Tech. Rev. 18 (2006).) This movement has gained some footing, as courts in some jurisdictions have started allowing a mix of evidence-based medicine and experience-based opinions in support of standard-of-care testimony. See generally Ann MacLean Massie, In Defense of the Professional Standard of Care: A Response to Carter Williams on “Evidence-Based Medicine, 61 Wash. & Lee L. Rev. 535 (2004). (Ms. Massie advocates that evidence-based medicine is already being encompassed in the standard of care's traditional experience/custom-based analysis by requiring physicians to stay abreast of the latest developments in the profession.)