Each Chicago medical malpractice lawyer at our firm often explains to clients the role of the expert witness. Medical malpractice claims essentially allege that a medical professional breached a standard of reasonable care and caused harm to a patient. However, unlike tasks in which most people are familiar, the conduct of medical professionals is highly specialized and foreign to those not trained in the field. That is why, in a medical malpractice case, expert witnesses are needed to explain what constitutes reasonable standards of care in any given scenario.
Juries obviously place a lot of weight on the testimony of experts, because their opinion usually goes to the very heart of the case: whether or not the conduct of the medical professional was appropriate. Understanding this importance, the U.S. Supreme Court has emphasized over the past few decades that trial court judges must act as “gatekeepers” when deciding what experts are allowed to testify. The goal is usually to prevent “junk science” from being explained to the jury. Of course there are no fool-proof ways to determine what is or is not “junk science.” However, in general, the Supreme Court has explained that science is legitimate if can be empirically tested, was subject to peer review and publication, has a known error rate, and has a set of standards and controls. The degree to which the scientific community has accepted or embraced the material is also a factor in the analysis.
Like many other attacks against victim’s rights advocates, our Illinois medical malpractice attorneys know that when claims of “junk science” are made they are almost always directed against a plaintiff. However, that characterization is unfair, because defense teams are just as capable of trying to introduce evidence from an expert in a case based on claimed scientific positions that have no merit.
For example, an interesting new guest post from the New York Personal Injury Attorney Blog explains how junk expert testimony is also being used by defense attorneys. It is only very recently that the plaintiff’s bar has begun challenging claims made by defense experts. The article highlights an Erb’s palsy lawsuit. Erb’s palsy is a type of birth injury that is most often caused by excessive force applied when a child’s shoulder gets caught in the mother’s birth canal during delivery. When the head of the child is pulled at this time, the bundle of nerves known as the “brachial plexus” can become injured resulting in permanent arm disabilities.
However, in order to avoid responsibility for causing this injury some doctors began making claims in these suits that the injury may not be caused by excessive force applied by the doctor but by “natural forces of labor.” Only a very small group of doctors ever actually published on this “natural forces” theory. There was essentially no original research on the matter, and those same doctors kept citing one another again and again in literature. Conveniently, those doctors also flew around the country testifying at trial about this “alternative” explanation for Erb’s palsy.
However, one state court recently recognized that this claim of “natural forces” as a possible cause of the condition was far from being an accepted principle. They recognized that the theory had never been subject to bona fide scientific testing. Because of this the trial and appellate courts, for the first time, did not allow the defense experts to raise the claim. This represents an important step in ensuring that juries in these cases are presented with accurate impressions about the causes of these harms.
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