For truth in testimony

December 23, 2003|By John M. Freeman

THE ALLIANCE TO Preserve Access, a newly formed coalition led by former state Insurance Commissioner Steven B. Larsen, has proposed four reform steps for medical malpractice in Maryland.

These include changes in the calculation of economic damages, a reduction of pain-and-suffering awards, a limit on attorneys' fees and a restructuring of the payout of large verdicts.

I would like to propose a fifth change, one that would cost nothing either for the plaintiff or the defense and would improve the quality of the justice meted out. I propose that we require verifiable truth in the courtroom. Society requires truth in advertising and truth in lending. Isn't it time that we also required truth in the courtroom?

In a typical case, the jury hears the story of an event told through the eyes of expert witnesses, carefully screened by each side. If the expert's opinion is not favorable for that side, he or she is not asked to testify. The jury, hearing testimony from experts presented by the two sides, must, with little scientific background, judge which side is telling the truth. How can two experts disagree? How can the jury distinguish between the shades of the truth?

Truth is rarely an absolute, and may be colored by outcome. The plaintiff's expert states, "If only the doctor had done ... this never would have happened." The defendant's expert counters, "The outcome was not a result of what was or wasn't done." What is almost always missing from the debate is any assessment of the quality of the evidence presented by the experts - of either side.

A medical expert is a physician deemed qualified by the court based on background and training. When dealing with questions of causation of alleged injury, "experts" hired by the plaintiff or the defense render testimony favorable to their side. The testimony may represent only the expert's opinion and need not be supported by peer-reviewed medical literature. Experts may be misinformed, biased, prejudiced or "hired guns."

Juries, with little or no scientific expertise, are then asked to judge between the experts for each side. Judges have the authority to assess the scientific basis behind an expert's testimony and to exclude unsupported expert opinions. Yet this judicial questioning of expert opinions is rarely used in individual medical malpractice cases. Judges also are rarely trained or equipped to challenge the science behind the evidence presented.

A simple approach to improving testimony in the courtroom would be to require the expert to provide supporting evidence for his or her testimony from published, peer-reviewed literature.

This evidence should be presented at the time of depositions, before the trial, so that it could be reviewed and contested prior to presentation to the jury. At least in obstetrical malpractice cases, which often result in verdicts of the highest monetary awards, modern evidence of the causes of cerebral palsy and mental retardation could be brought to the fore, and obstetricians could be assured of a truly fair trial.

Requiring truth in the courtroom does not seem to be a radical idea. But requiring presentation of the supporting evidence behind an "expert's" testimony might make Maryland the first state to require both truth and justice in medical malpractice cases.

Dr. John M. Freeman is a professor of neurology and pediatrics at the Johns Hopkins Medical Institutions.

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