Evidence-based medicine and tort law

Recent statutes and legal decisions have been aimed at bettering the quality of tort-law decisions by substantively improving "expert" testimony. However, in analogy to the experience of physicians attempting to upgrade medical practice using the principles of evidence-based medicine, lawyers and the courts have found it much easier to describe ideal science than to actualize it. This is particularly so in a system (the Law) that has traditionally not been very discerning about scientific rigor, and which has established procedural priorities that are often incompatible with strict scientific standards. This overview will examine the American tort system from an evidence-based perspective. We include a discussion of standards that could be used for "outcomes analysis" in the Law; recognition and classification of errors made by the courts themselves; the relationship between medical errors, "negligence," and standard of care; and the problem of reconciling the rights of plaintiffs with medical-scientific facts. We also consider selected impediments to developing a legal system that is capable of consistently reaching evidence-based decisions concerning complex scientific information, including pathologic interpretation of tissue specimens.