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Clin Perinatol. 1996 Sep;23(3):583-95.

Expert testimony, legal reasoning, and justice. The case for adopting a data-based standard of care in allegations of medical negligence in the NICU.

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Department of Pediatrics, MacLean Center for Clinical Medical Ethics, University of Chicago, Illinois, USA.


Sunstein has written, "First, and most obviously, judgments about specific cases must be made consistent with one another. A requirement of coherence, or principled consistency, is a hallmark of analogic reasoning (as it is of reasoning of almost all sorts)." In cases of alleged medical negligence, our current system of malpractice litigation supports the possibility that inaccurate anecdotal testimony by expert witnesses may be credited equally or even preferred to more accurate testimony based on empiric data. This condition lends itself to inconsistent outcomes that violate basic principles of justice. In our view, the standard of medical care ought not be described by the idiosyncratic postulation of single behavior (analogous to promulgating the equation of a single line on a Cartesian plane). Rather, the standard of medical care is best viewed as a distribution of behaviors (family of lines) that can be empirically determined to account for most practice decisions in comparable cases. The recent Daubert formulation of admissibility of expert testimony can be interpreted as providing judicial support for a hierarchy of expert testimony in cases of alleged medical negligence. On this view, testable comparisons of the behavior in question against reliably documented distributions of standard medical behavior in similar circumstances rank higher than untestable comparisons using unreliable anecdotal recollections of individual expert's undocumented experience. We believe that widespread adoption by the medical community of the principle that the value of expert testimony describing the standard of medical care increases in direct proportion to its congruence with a data-based determination of the distribution of skill and care ordinarily provided in similar circumstances would significantly reduce the potential for injustice visited on plaintiff and defendant alike.

[Indexed for MEDLINE]

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