The admissibility of scientific evidence in psychiatric malpractice: junk science and the Daubert case

The defence in malpractice cases has traditionally relied upon a commonly accepted body of knowledge. According to the American 'Frye rule', this knowledge could either have been accepted generally or by a 'respectable minority' of physicians. The US Supreme Court, however, has recently ruled in the Daubert case that conclusions not subject to peer review are acceptable in malpractice cases. The authors analyse the implications of the Daubert decision using the case-study method. Two alternative-scenarios of a hypothetical case are analysed. The potential effect of Daubert places the US psychiatrist-defendant in an untenable position. Either use or non-use of non-peer-reviewed studies in clinical practice could produce a finding of negligence. Furthermore, the responsibility to assess scientific acceptability in US courts has shifted from expert witnesses to judges who are usually without scientific training.