The Medical Expert in Court: Towards -Evidence-Based Medical Dispute Resolution

AuthorTee L. Guidotti
PositionDepartment of Environmental and Occupational Health, The George Washington University Medical Center, USA
Pages11-15
The Open Law Journal, 2008, 1, 11-15 11
1874-916X/08 2008 Bentham Open
Open Access
The Medical Expert in Court: Towards “Evidence-Based Medical Dispute
Resolution”
Tee L. Guidotti*
Department of Environmental and Occupational Health, The George Washington University Medical Center, USA
Abstract: We advocate a sy stematic approach to evaluating scien tific evidence in a p articular context, th at of law, adjudi-
cation and public policy which we call “evidence-based medical dispute resolution”. The approach adapts methods of evi-
dence-based medicine and “critical appraisal” that are now well accepted in health care to assist a court or an adjudicating
body, as in workers’ compensation, to weigh evidence in disputes involving health risks. Health and medical knowledge
are essential to the resolution of disputes in law and administrative applications (such as workers’ compensation) and pro-
vide essential input into public policy decisions. There are no socially agreed-upon rules for the application of this knowl-
edge except the law. Even within the legal system, courts vary and adjudication systems based on tort law do not always
work well, even when the interpretation of scientific evidence is agreed upon by all sides. However, a big part of the vari-
ability and inconsistency could be removed if there were agreement on the interpretation of scientific evidence. This can-
not be done by rigid rules, of course, because the law does not work this way. It has to be done by social convention.
Health and medical knowledge are essential to the resolu-
tion of disputes in law (such as tort litigation) and adminis-
trative adjudication (such as workers’ compensation). The
medical or health expert provides essential input into public
policy decisions. How to use this knowledge is not always
clear. This essay is a brief introduction to this attempt to in-
tegrate key elements into a general approach to evaluating
scientific evidence for use in law. The argument is elabo-
rated further in our book Science on the Witness Stand:
Evaluating Scientific Evidence in Law, Adjudication, and
Policy (Guidotti, 2001). The approach is still being devel-
oped and would benefit from broader discussion, which the
objective of this article.
We know how to evaluate evidence in science and we
scientists have internalized the “95% certainty” principle for
statistical significance inherent in our experiments and stud-
ies. This rigorous standard is not unlike the standard of per-
suasion which is applied in criminal law, which in the Brit-
ish-derived American legal system is “beyond reasonable
doubt”. However, civil law to resolve disputes between par-
ties (and most systems of adjudication) have a different stan-
dard: the balance of probabilities, or “weight of evidence”,
which translates to >50% certainty. Wh en the medical or
health expert ventures into the courtroom, therefore, it is like
playing a game with very different rules (Jasanoff, 1995;
Meufeld, 1990; Guidotti, 2001).
Some medical expert witnesses stick to the familiar rules
of science and are therefore, by definition, too conservativein
their opinion. Others may feel liberated by the looser stan-
dard of civil litigation and free to make up theories and opin
*Address correspondence to this author at the Department of Environmental
and Occupational Health, The George Washington University Medical
Center, Washington DC 20052, USA; Tel: 202 994-1734; Fax: 202 994-
0011; E-mail: eohtlg@gwumc.edu
ions that are extrapolated far beyond solid evidence. An ex-
ample of this is suspect testimony in the wave of litigation
over “toxic mold” in the United States today. Litigation has
been a spawning ground for so-called “junk science”
(Guidotti, 2001; Moskowitz, 1998; Crane, 1996), which has
threatened th e credibility of experts in general and has
probably discouraged many knowledgeable investigators and
practitioners from sharing their knowledge when it has been
needed.
The adversarial structure of the British-derived and some
other legal systems encourages extreme interpretation. Be-
cause it is the foundation of a trial in that system of law, the
adversary system cannot be changed. It would be inimical to
the legal system if, for example, plaintiff and defense ex-
perts, or claimants and adjudicators, let their experts meet in
conference to decide among themselves what science is cor-
rect. Something like this, however, has been attempted by
judges who set up expert panels to sort through conflicting
scientific evidence in order to advise them in class action
suits (Price, 1998).
Still, there are standards of practice for ethical practitio-
ners in what I call “witnesscraft” (Guidotti, 2001) just as
there is in medical practice. Medical and other professional
societies often develop codes of ethics for the deportment
and honesty of testimony of their members but these codes
are designed to prevent the most egregious breaches and
abuses, not to set normative rules (American College of Phy-
sicians, 1990).
One wonders if it would be possible to achieve a gener-
ally accepted norm, or consensus, on what constitutes good
practice in expert testimony. Is there, in other words, a mid-
dle ground outside of the courtroom where generally ac-
cepted norms for the interpretation of evidence can be dis-
cussed and where the responsible expert can form an opinion

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