Monday, May 30, 2005

Professional Discipline for Expert Physician Witnesses: A Consistency Check

Should physicians be vulnerable to professional discipline if they offer spurious testimony for the plaintiff (or the defendant, for that matter) in a medical malpractice case?

It is a recurring question in the "tort reform" debate. Advocates of malpractice "reform" generally defend the legitimacy of disciplinary proceedings against expert witnesses whom they see as having pressed "junk medicine" in frivolous cases. But others, including us, worry that such proceedings may have an unacceptable chilling effect on legitimate expert testimony.

Now, then. Should Sir Roy Meadow be hauled before a professional disciplinary tribunal and made to answer for his frequent appearances as a prosecution witness, in which he has routinely advanced the theory, now largely discredited, that under "Meadow's law," multiple crib deaths in the same family are generally the result of homicide?

Well, he's about to be, and for some reason our reaction is different. But should it be? Are we simply responding to media coverage that has often painted Sir Meadow as an angel of darkness? Or can a legitimate distinction be drawn? Is it worse, when innocent parents are jailed, or lose custody, based on dubious medical testimony, than when innocent physicians are held liable in malpractice cases? Does it matter, that evidence on the standard of care is mandatory and directly relevant in medical malpractice cases, whereas medical testimony about the statistical incidence of crib death is a very poor substitute for the evidence we would really want before sending someone to prison for murdering a child -- i.e., directly probative evidence that the defendant committed a crime? Are worries about the chilling effects of professional discipline less acute, in the context of evidence offered by prosecutors in criminal cases?

We're not sure. But we're thinking it over.


Duane Bradford writes ...

For an example of how one prosecution << >>
of a physician succeeded, using flawed medical expert testimony that formed the base of the case.

1:17 PM  

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.