Medical Malpractice Myths

William Brody, President of Johns Hopkins, has a great article in the Washington Post on myths of Medical Malpractice.

Here's a sample:

And a recent study by Harvard University researchers found that 80 percent of malpractice claims were filed against doctors who had made no error whatever. For instance, recent articles in scientific journals have documented that many, if not most, cases of birth-related cerebral palsy -- cases in which juries tend to be highly sympathetic to plaintiffs -- are not the result of malpractice by obstetricians. Juries often deliver sizable awards against providers who commit no errors for what are unfavorable, but random, outcomes of nature.

And one chief culprit is a failure of judges to control expert witness testimony.  Under Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993), the U.S. Supreme Court declared that federal judges were the "gatekeepers" and should keep junk science and unsubstantiated expert opinions from the jury.  If the quoted paragraph is true, that is not happening at the state level, and I know it is not happening in California, where the courts have particularly disclaimed the gatekeeper role in medical malpractice cases.  A typical example of this is Roberti v. Andy's Termite and Pest Control 113, Cal.App.4d 893, 6 Cal.Rptr.3d 827. In that case, plaintiff offered medical expert testimony that  Dursban caused plaintiffs autism.  The trial judge applying California's equivalent of Daubert, the Kelly test, wouldn't permit the expert to testify. [People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976)]

The court of Appeal reversed, holding that the Kelly analysis only applies to novel scientific evidence or techniques, not to expert opinion of medical causation even if the expert opinion on causation had not gained general acceptance in the relevant medical community.  The court of appeals specifically rejected defendant's suggestion that California courts employ the Daubert gatekeeper analysis. This allows all kinds of wild medical theories to be admissible and explains why cerebral palsy cases are so lucrative even though there is no scientific connection between the medical services rendered and the cerebral palsy.

Potentially, it is possible that a medical expert's opinion is just too conclusory, or in the words of one medical expert, "It just sort of makes sense." Jennings v. Palomar Pomerado Health Systems, Inc., 114 Cal.App4th 1108, 8 Cal.Rptr.3d 363 (2004). But, such rulings are too rare. If courts would act more like gatekepers and more frequently exclude dubious opinions, then there may be a reduction in unfounded medical malpractice cases.

Comments

[mivareavemo]

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