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Expert witness testimony: rules of engagement.

Overlooked in most legislative remedies to address the medical malpractice (MMP) crisis is stringent prohibition against the use of "junk science'' in the courtroom and defining the qualifications of an expert witness. Expert witnesses should be required to: (1) to disclose information materially related to the reliability of expert testimony. (2) Filing of a "Daubert brief'': a summary of the plaintiff's expert's opinion along with a resume outlining his/her knowledge, skill, experience, training and education, reputation in the field relevant to the litigation, and complete details of the methodology employed by the expert. (3) An oath or declaration that acknowledges the duty to disclose to the court all information known to the person to be material to the reliability of the expert witness. Rules of evidence: The "Frye test'' or the "general acceptance rule'' has been used by judges to exclude expert testimony unless it is "sufficiently established to have gained general acceptance in the particular field in which it belongs.'' Stricter standards need to be legislated at the state level. The mandatory use of scientific panels by judges in all MMP cases is needed. Legislative relief has been sought by the medical community to address the serious disconnect between negligence and MMP litigation. The use of junk science in the courtroom remains largely unaddressed in the judicial system. Medical societies and legislatures must act to define an expert witness and restrain plaintiff's attorneys from using junk science to influence juries.

Expert Testimony↗

[Providing expert medical testimony].

This paper represents an effort at making expert medical testimony, one field of the medical profession, more accessible to our junior medical colleagues. As there is no department for expert medical testimony at the Belgrade School of Medicine, neither textbooks on providing expert medical testimony, experiences and knowledge are not unified and have to be collected together from many sources. The work of the medical expert is not aimed at improving the health of a patient, but on the realisation of a patient's rights, which very often depend on the patient's health. The medical expert confirms medical facts, which may be of legal significance, and, consequently represents a link between medicine and the law. The effects of that link also impinge into the financial sphere. Expert medical testimony is, therefore, an interdisciplinary activity and the medical expert must also have knowledge outside of medical science, in other words, knowledge of the potential legal significance of medical facts. The authors of this paper are professional medical experts and wanted to make precisely that knowledge, which falls outside of medicine but is essential in medical testimony, more accessible to their junior colleagues. This is knowledge of the rights on which their patients can rely from insurance companies (based on health or invalid insurance) or in court. Such knowledge can also help their patients with legal regulations, ethical principles, and establishing their legal rights.

Education, Medical↗

The expert witness: real issues and suggestions.

Medical malpractice lawsuits generally require expert testimony. Defendants and plaintiffs deserve expert testimony that is exacting, accurate, and consistent. A study of four frequently testifying experts was undertaken with review of depositions, reports, and trial transcripts of those experts. Contradictions in claimed medical principles from one case to the next were found and examples were cited for each expert. The review suggested that expert testimony regarding the standard of care may be neither reliable nor accurate for the purposes of judging physician conduct is lawsuits. Presently, no peer review or sanction process has been implemented to ensure accuracy and reliability of expert testimony used in medical malpractice lawsuits. We recommend changes that would include independent court-appointed experts, central filing of opinion letters by experts with authoritative text citations, and a sanction process by courts and/or authorized boards for testimony that is deemed inaccurate, false, or contradictory to the standard of care.

Expert Testimony↗

Providing expert witness testimony.

The frequency of medical malpractice litigation in neurosurgery creates an opportunity for those in the profession to provide their opinion to courts on professional standards of care in the form of expert witness testimony. Providing expert witness testimony in a thorough and objective manner is difficult. This paper discusses the process of providing expert witness testimony as well as techniques the neurosurgeon can use to testify more effectively.

Expert Testimony↗

The neglected intermediate premise in the forensic expert's testimony.

The testimony of most expert witnesses is reducible to a syllogism: The expert derives a relevant opinion (the conclusion) by applying a general theory or technique (the major premise) to the specific facts of the case (the minor premise). Legal commentators have tended to focus on the expert's major premise to the neglect of the minor premise. Thus, legal analysts have devoted little attention to the question of the forensic expert's use of proper test protocol. This neglect can result in the admission of erroneous scientific testimony. The neglect also represents a missed opportunity--the legal system's opportunity to give the forensic community additional incentive scrupulously to follow correct test procedures.

Expert Testimony↗

A proactive, data-based determination of the standard of medical care in pediatrics.

A 3-week-old infant awoke with a fever. He was taken to the doctor who noted that the child was irritable. The doctor took him to the hospital where a resident performed a spinal tap, started an intravenous (IV) line, and ordered antibiotics. The entire drama, from entering the doctor's office to infusion of ampicillin, took 2 hours. The doctor was sued for malpractice. Expert witnesses for the plaintiff testified that he had deviated from the standard of medical care by taking too long to administer antibiotics, which, in their view, ought to have been given within 30 minutes. Expert witnesses for the defense testified that 2 hours to administer antibiotics in this case was within the standard of care. What ought to be the response of the pediatric community to discrepant expert testimony such as this? One possible response is nothing. Lawyers from both sides will find expert medical witnesses who articulate positions favorable to their clients (as they did in this case), and the truth will emerge after vigorous cross-examination. This, we suggest, is inadequate. We believe that some expert opinions can be viewed as better than others. That is, some opinions describe the standard of medical care correctly while other expert opinions are (to put it charitably) idiosyncratic, failing to depict accurately the skill and care ordinarily administered in comparable situations. Currently, jurors are informed about the standard of care by expert witnesses, who rely on their own medical knowledge and experience. However, a huge body of literature demonstrates that recollections of individual experience are inevitably flawed, and flawed in a nonrandom direction (the Monday morning quarterback phenomenon). Consider the infant with meningitis. When experts in pediatric emergency medicine and pediatric infectious diseases (ID) were asked about the median time from emergency room (ER) presentation to administration of antibiotics in a child with suspected meningitis, their opinions were wrong and slanted toward the outcome known to be desired (namely, a shorter elapsed time). ER physicians (median estimated time to antibiotic administration [AB-TIME] = 46 minutes) and ID physicians (median estimated AB-TIME = 80 minutes) consistently underestimated the actual median value of AB-TIME determined by chart review (120 minutes). From the judicial perspective such potential flaws in expert testimony are assumed to be equally distributed among experts. All admissible evidence is a priori of equal weight until a jury decides otherwise. The standard of medical care is created anew by expert testimony in each individual case, disappearing, like Brigadoon, upon resolution of the dispute. However, to anyone but a lawyer, the standard of medical care must exist as something outside the courtroom testimony of experts, and if it does exist, it should be easily described so that expert testimony can be judged more (or less) accurate in depicting it. We contend that medical care is not a single behavior that conforms to or deviates from an idiosyncratic and retrospectively determined standard, but rather a distribution of behaviors in response to a variety of medical circumstances. For a given scenario, each of several possible responses can be ascribed a relative frequency based on empirical data, and the consequent normal curve depicts the totality of medical care. Substandard care then falls out neatly as behaviors lying outside the large majority of cases. Juries would be empowered (as they are currently) to determine exactly where on this curve substandard care lies, but at least the debate would share the same description of reality. Recent US Supreme Court guidelines regarding expert testimony provide an opportunity to expand the use of databases in medical negligence cases. The Court restricted expert testimony to "scientific knowledge ... based on generating hypotheses and testing them to see if they can be falsified ... (ABSTRACT TRUNCATED)

Databases as Topic↗

Impact of defense-only and opposing eyewitness experts on juror judgments.

Previous research shows that expert testimony on eyewitness memory influences mock-juror judgments. We examined the extent to which opposing expert testimony mitigates the impact of defense-only expert testimony. Participants (N = 497) viewed a video-taped trial involving an eyewitness identification and individually rendered verdicts and evaluated the evidence and the experts. We manipulated the Foils (unbiased vs. biased) and Instructions (unbiased vs. biased) of the lineup and Expert Testimony (no expert vs. defense-only expert vs. opposing experts). Expert testimony did not significantly influence juror judgments, but the opposing expert testimony diminished the credibility of the defense expert in the eyes of the jurors. Results point to the need for further research on conditions that qualify the impact of expert testimony.

Crime↗

Expert medical testimony: Responsibilities of medical societies.

Expert witnesses for plaintiff and defense should be able to provide evidence-based literature to support their testimony in depositions and in the courtroom. Specialty societies, such as the American Academy of Neurology, should be willing to review complaints about unsubstantiated testimony and, at times, publicly discipline offending experts.

Expert Testimony↗

Expert psychological testimony on eyewitness reliability before and after Daubert: the state of the law and the science.

This article examines the legal and scientific issues inherent in the use of expert psychological testimony on the factors that affect eyewitness reliability. First, the history of the use of such expert testimony is traced. Next, we look at the criteria that state and federal courts have used in determining whether to admit such testimony, as well as the grounds upon which the testimony has been excluded. We then examine the Daubert decision and discuss its implications for the use of expert eyewitness testimony. We conclude by reviewing eyewitness research and research on jury decision-making that is likely to assume new importance in the post-Daubert era.

Criminal Law↗

Kumho Tire Co., Ltd. v. Carmichael.

The U.S. Supreme Court considered an appeal by the defendant, Kumho Tire, in a products liability action. The appeal resulted from a ruling by the Court of Appeals in the Eleventh Circuit that overturned the district court's exclusion of expert testimony. The plaintiff's expert had sought to testify regarding the reasons for a tire failure and blowout. The subsequent accident resulted in personal injury and the death of a passenger in the plaintiff's vehicle. The Supreme Court held that expert testimony, whether based on professional studies or on personal experience, is subject to the same standard of scrutiny for relevancy and reliability. This decision resolved a conflict that had arisen among the circuit courts of appeal with respect to this issue. The article first outlines the Court's decision, then considers the implication the decision has for the admissibility of expert opinion testimony in future cases.

Accidents, Traffic↗

Expert witness testimony: A trial judge's perspective.

This article discusses the use of expert, scientific testimony in Judge Weinstein's courtroom cases that involved Agent Orange, silicone breast implants, repetitive stress injuries, diethylstilbestrol (DES), and asbestos. The author summarizes the evidentiary standards for admitting expert, scientific testimony, and discusses some of the unique ethical and logistical issues presented by such evidence. Advice is offered for prospective expert witnesses. Possible solutions to the problems the legal and scientific communities face in balancing society's need for expert evidence and its limitations are addressed.

Ethics, Medical↗