Browse the corpus

Members of the medical profession may occasionally be asked to testify as an expert witness at some time during their career. It is in the best interest of the legal and medical professions if this testimony, in either a civil or criminal case, is scientifically sound and provided by an unbiased expert witness. Medical professionals, as members of the medical community, patient advocates, and private citizens, have a professional and ethical responsibility to assist with the civil and criminal judicial processes fairly and unbiasedly.[1][2] Evidence-based and experience-based opinions from medical professionals in legal cases have become increasingly common. Many professional medical societies (American College of Obstetrics and Gynecology, American College of Emergency Physicians, American Academy of Pediatrics, American Society of General Surgeons, American Association of Neurologic Surgeons,  American Academy of Orthopedic Surgeons, American Academy of Ophthalmology, American College of Cardiology, and American College of Radiology) have addressed the issue with recommendations or guidelines for case review. Legal Concepts Medical Malpractice Medical malpractice law is based on tort and contract law. Liabilities and unforeseen circumstances can arise from health care delivery by any level of providers, nurses, respiratory therapists, and ancillary personnel. Medical malpractice can impact every specialty and subspecialty.  No healthcare practitioner is ever immune, whether a student healthcare provider or a well-seasoned attending physician, at any point in their career. These liabilities may be based on negligence, insufficiently informed consent, intentional misconduct, breach of a contract, defamation, divulgence of confidential information, or failure to prevent foreseeable injuries to third parties.[3][4][5][6] Of all potential liabilities in medical malpractice, negligence is the most common.  Medical negligence requires that the plaintiff establish the following elements: The existence of the healthcare provider's duty to the plaintiff. This element is based on the presence of a physician-patient relationship. The  demonstration of the applicable standard of care and deviation from that standard Damages, an injury compensable by monetary reimbursement A causal connection between violating the standard of care and the purported injury. Standard of Care

The existence of the healthcare provider's duty to the plaintiff. This element is based on the presence of a physician-patient relationship. The  demonstration of the applicable standard of care and deviation from that standard Damages, an injury compensable by monetary reimbursement A causal connection between violating the standard of care and the purported injury. Standard of Care In medical malpractice cases, the defendant’s actions are compared to the standard of care for that particular diagnosis and situation. The standard of care is “reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, the same general line of practice, ordinarily have been exercising in like cases.” Currently, with the establishment of National Boards and greater standardization of practice parameters, there is less regional variability. Access to care and healthcare facilities in underserved or rural areas is the occasional exception.[7] "Whether there was a deviation from the standard of care" is often the most crucial input from the expert witness in medical liability cases. Suppose it is determined that a deviation from the standard of care has occurred. In that case, a secondary role for the expert witness may be to provide an opinion regarding whether the deviation of the standard of care could have been the cause of the patient’s alleged injury. The standard for admission of expert testimony was set in 1923 in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The holding of this case was quite simple. It stated that an expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community. This case involved polygraph testing (1923) when lie detector evidence was not widely accepted. It was, however, the opinion of the court that there was sufficient support in the scientific community to admit the evidence as from an established source. This is called The Frye Standard. Over the following decades, Frye became the standard for acceptance of evidence. It was first used in criminal cases, but in the 1980s, it was utilized in toxic tort cases. After decades of use, critics complained that it could no longer be reliably used as scientific principles became more complex. Those complaints, misapprehensions, and criticisms led to Daubert.

The standard for admission of expert testimony was set in 1923 in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The holding of this case was quite simple. It stated that an expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community. This case involved polygraph testing (1923) when lie detector evidence was not widely accepted. It was, however, the opinion of the court that there was sufficient support in the scientific community to admit the evidence as from an established source. This is called The Frye Standard. Over the following decades, Frye became the standard for acceptance of evidence. It was first used in criminal cases, but in the 1980s, it was utilized in toxic tort cases. After decades of use, critics complained that it could no longer be reliably used as scientific principles became more complex. Those complaints, misapprehensions, and criticisms led to Daubert. The standard is Daubert vs. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579(199,3), a rule of evidence regarding the admissibility of expert witness testimony. The Daubert Standard is a known framework by which the trial judge can assess the reliability and relevance of the expert's testimony before it is introduced to the jury.  The Frye Standard relies on the expertise of the scientific community to determine reliability, whereas Daubert relies on the trial court judge. While The Frye Standard states that evidence or testimony must be shown to be accepted by most experts in the field, the Daubert Standard requires judges to consider multiple factors, one of which is whether or not the evidence presented is consistent with that tested by peer review. The adoption of this particular standard established a benchmark for expert testimony by making the trial judge the gatekeeper of the admissibility of the scientific evidence. This was significant because it aimed to limit the admission of pseudoscience or unreliable testimony rather than relying on the expert's credentials. Frye relies on the scientific community to determine reliability, whereas Daubert relies on trial judges' scientific savvy to determine the scientific evidence's admissibility.

While The Frye Standard states that evidence or testimony must be shown to be accepted by most experts in the field, the Daubert Standard requires judges to consider multiple factors, one of which is whether or not the evidence presented is consistent with that tested by peer review. The adoption of this particular standard established a benchmark for expert testimony by making the trial judge the gatekeeper of the admissibility of the scientific evidence. This was significant because it aimed to limit the admission of pseudoscience or unreliable testimony rather than relying on the expert's credentials. Frye relies on the scientific community to determine reliability, whereas Daubert relies on trial judges' scientific savvy to determine the scientific evidence's admissibility. Federal courts all follow Daubert. State courts are divided between the two but tend to add their interpretations. Simply put, the admissibility of expert testimony is dependent on the jurisdiction. It is essential to understand the difference between the Daubert and Frye standards, their specific jurisdictional variations, and applicable case law. Daubert, Chief Justice Rehnquist famously noted that the function does not impose on the court “the obligation or the authority to become amateur scientists.” Missing in Daubert, however, is the amount of weight a judge should give to each Daubert factor or if one is more important than another. All that has been noted since 1997 in that regard is an aside Justice Scalia made in another case, “Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.” Daubert is the standard in every federal court. Frye is the standard in approximately eight states – ‘approximately' because state legislatures have been known to change the standard. The states that have adopted Daubert have usually done so while adding their interpretation to the standard. A state-to-state knowledge of those interpretations is crucial.

Daubert is the standard in every federal court. Frye is the standard in approximately eight states – ‘approximately' because state legislatures have been known to change the standard. The states that have adopted Daubert have usually done so while adding their interpretation to the standard. A state-to-state knowledge of those interpretations is crucial. Medical Errors Compared to Medical Negligence, a medical intervention has several possible outcomes: the condition improves, worsens, or remains unchanged. A deterioration in the patient’s condition does not necessarily indicate medical negligence. The three above outcomes are possible even with appropriate care and treatment. Medical negligence cannot be determined solely from an unexpected result, an unacceptable result, a failure to cure, a failure to recover, or any other situation that might indicate a lack of success of the intervention or care. An undesirable outcome in and of itself does not necessarily mean medical negligence. Likewise, a medical error in and of itself, even while falling below the standard of care, may have caused no damages and is probably not actionable in a claim for medical malpractice. Burden of Proof The burden of proof is different in civil cases than in criminal cases.  In civil cases, the plaintiff must convince the jury of its position with a preponderance of the evidence. A preponderance of the evidence means at least 51%. Therefore, the jurors in a medical negligence case must be convinced that the argument and evidence provided by the plaintiff are more plausible as the proximate cause of the alleged injury than the argument and evidence supplied by the defendants.

The medical records are the responsibility of the healthcare team of nurses, technicians, paramedical staff, medical residents, consultants, and attending physicians or surgeons. Medical documentation must be accurate, complete, and timely. Continuity of care should be documented, even if these discussions are informal. Any discussions among members of the healthcare team should be reflected in the medical record to establish that there has been communication and coordination of care.