Using Statistical Evidence to Prove the Malpractice Standard of Care: Bridging Legal, Clinical, and Statistical Thinking
40 Pages Posted: 7 Nov 2002
Abstract
Increasingly, there have been calls to supplement expert opinion testimony in medical malpractice cases with more objective empirical evidence of various kinds to establish the legal standard of care. Examples include proposals to incorporate clinical practice guidelines and the proposals made by Professor Meadow, Professor Hartz, and their colleagues in this Symposium to utilize physician surveys and epidemologic studies of physician practice patterns. While empiricizing the standard of care is an intriguing and worthy goal, implementing these proposals poses some substantial challenges. A number of complexities arise from differences in the way that legal triers of fact, physicians, and researchers reason through problems - especially the different meanings that they attach to the concept of "significance." Additionally, there are many methodological and practical issues associated with conducting empirical studies of physician behavior and introducing them as evidence in a jury trial. The experience of attempting to integrate clinical practice guidelines into malpractice litigation suggests that practical and conceptual problems involved in merging the cultures of medicine, science, and law should not be underestimated.
Keywords: torts, medical malpractice, standard of care, statistical evidence, study design methodology, clinical practice guidelines
JEL Classification: K41
Suggested Citation: Suggested Citation