Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (review)

With the hope of promoting ethical and responsible behavior, medical professional societies have established Professional Conduct Guidelines for Expert Witness Testimony in medical malpractice litigation. Over the past decade, medical societies have sanctioned members for unprofessional expert witness testimony, sending a clear message that irresponsible testimony and misrepresentation of either qualifications or the relevant standard of care will not be tolerated. However, such efforts have had little impact on the number of claims brought by patient plaintiffs that have ended in either dismissal or judgment for the defendant physician—an entirely predictable outcome.

Past studies have indicated that 70% of all medical malpractice claims are dismissed prior to trial, 28% undergo settlement prior to trial, and 2% end with a trial verdict. Although difficult to assess, one study determined that patient injury was caused by demonstrable medical negligence in only one out of six medical malpractice claims filed. Another study reported that 30% of medical malpractice claims that settled would have resulted in a verdict for the defendant due to the absence of provider negligence. These data have been used to suggest that at least some percentage of medical malpractice claims would never have existed had it not been for unethical and irresponsible medical expert testimony.

Tal Golan’s Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America examines the development of checks and balances in the court system with regard to the qualifications of medical experts, the testimony allowed, and the scientific requirements for evidence presented. This book provides essential background for a complex topic, a topic that should be understood by every practicing physician because many—if not most—will experience the stress and emotion of a lawsuit at some time during their professional lives.

From a personal point of view, during my 25 years of practice I myself have faced a (frivolous) lawsuit, resulting in time away from my practice and associated lost income, as well as the stress of defendant testimony. Moreover, I experienced uncomfortable feelings related to the knowledge that despite my hard work and best intentions, an adverse outcome resulted from my patient care. No less important, I was forced by the course of the legal proceedings to publicly record this event and address an angry and disappointed patient.

An additional impact of medical malpractice claims on defendant physicians is the requirement that all settlements or judgments against the physician be reported to the National Practitioner Data Bank (NPDB). Once reported to the NPDB, the record of this event is subject to scrutiny every time the physician undergoes credentialing and privileging by either health-care facilities or healthcare insurance plans. To date, thankfully, I have not been reported to the NPDB, although I realize that, since I am an employee of the Department of Veterans Affairs (I am a cardiac surgeon at a VA medical center), a tort claim that names me as a treating physician can meander through the federal system and result in a settlement and reporting to the NPDB without my knowledge or involvement.

I have been actively engaged in the business of medical expert opinion testimony for the past 10 years, during which time my opinions have been reasonably balanced between plaintiff and defense. I do not advertise this service, and historically the income generated from this work has amounted to only 10 to 15% of my overall income. Furthermore, I have lectured to resident staff and medical professional societies on aspects of peer review and physician responsibility to police their own profession.

I shall intertwine Golan’s narrative on the evolution of scientific expert testimony from the 17th-century English courts to the modern-day U.S. courts with my experience as a practicing physician and as a physician providing medical expert opinion services in medical malpractice lawsuits. To this end, I will address the...