Using Statistical Evidence to Prove the Malpractice Standard of Care: Bridging Legal, Clinical, and Statistical Thinking

40 Pages Posted: 7 Nov 2002

See all articles by Michelle M. Mello

Michelle M. Mello

Stanford Law School; Department of Medicine

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

Mello, Michelle M., Using Statistical Evidence to Prove the Malpractice Standard of Care: Bridging Legal, Clinical, and Statistical Thinking. Available at SSRN: https://ssrn.com/abstract=347780 or http://dx.doi.org/10.2139/ssrn.347780

Michelle M. Mello (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-725-3894 (Phone)

HOME PAGE: http://https://law.stanford.edu/directory/michelle-m-mello/

Department of Medicine ( email )

Center for Health Policy / PCOR
Encina Commons
Stanford, CA 94305
United States

HOME PAGE: http://https://profiles.stanford.edu/michelle-mello?tab=bio

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