The Unreasonably Uncertain Risks of 'Reasonable Medical Certainty' in Child Abuse Cases: Mechanisms for Risk Reduction

Abstract

The use of the phrase “reasonable medical certainty” is common in highstakes child abuse legal trials. Yet, a review of cases since the phrase entered the legal lexicon, as well as a survey of medical professionals, reveals that the meaning of the phrase remains unclear. Using Pennsylvania as a case study, the Authors surveyed legal professionals in the Commonwealth to examine their understanding of the definition of the phrase. The Authors found there is limited to no agreement on the meaning of the phrase within the community of legal professionals. The lack of agreement is concerning given the common use of the phrase in high-stakes child abuse cases. The risks of using the phrase in court without an agreed-upon meaning are high: a perpetrator can be found not guilty or an innocent person can be erroneously convicted. To reduce the risks, the Authors recommend that the legal field remove the phrase from the legal lexicon or adopt a model definition that provides greater clarity.

Keywords: reasonable medical certainty, evidence, child abuse

JEL Classification: K41, K36