Educating The Courts

The medical profession should help U.S. courts determine a consistent approach to evaluating the legitimacy of expert medical testimony, says a Tufts expert.

Boston [09.19.02] -- Over the last several decades, the use of expert medical testimony in the nation's courts has steadily increased, giving science a growing role in the country's legal system. But judges haven't used consistent standards to determine what testimony was scientifically valid and what wasn't, notes a Tufts expert, who says the medical profession must help the courts develop new standards to more effectively determine which medical testimony will be heard by juries.

"The courts need help from the medical profession to help them strengthen the role of medical testimony in litigation," Tufts' Jerome Kassirer and a colleague wrote in this week's issue of the Journal of the American Medical Association [JAMA]. "We believe that the medical profession must be encouraged not to remain aloof from the litigation over such issues and must monitor the manner in which medical testimony is presented in court."

The problem stems from a group of three Supreme Court rulings over the last decade which require expert medical testimony "to meet the 'same level of intellectual rigor' that doctors use outside the courtroom," reported Reuters.

The rulings were intended to keep highly paid - but less-than-credible - medical experts from testifying in cases.

But few courts have used the same standards for evaluating which medical testimony to allow.

"Some courts have excluded testimony because it is not based on published, peer-reviewed studies - a standard that is actually higher than what doctors use when treating patients," reported Reuters. "Other courts use less stringent standards when determining whether a person should be compensated for an injury or some other health effect supposedly caused by a toxic product."

Citing examples of courts that have disagreed with each other over the legitimacy of an expert's testimony, the Tufts medical school professor and former editor of the New England Journal of Medicine said each extreme - whether too weak or too rigorous - can have negative impacts on rulings.

"[Kassirer said] this type of inconsistency could lead to more litigation when weaker standards are used, or may end in rulings against people with legitimate claims if standards are too rigorous," reported the international news agency.

The solution, according to Kassirer, requires the involvement of the medical community, which can help courts develop a more informed - and more realistic - standard.

"Physicians can prepare amicus or "friend of the court" briefs [written advisory opinions on a particular subject] explaining professional standards and practices in critical cases," Kassirer wrote in JAMA. "They can also participate on panels that assist the courts in evaluating medical testimony."

It's a practice some judges have already successfully adopted, he wrote.

"Judges and legislators, of course, must set the standards for admitting medical testimony," he wrote. "But physicians can improve the consideration of medical testimony by providing guidance on how to assess causality at the level of certainty required by the law."