A Reliability Check on Expert Witness Testimony in Medical Malpractice Litigation: Mandatory Medical Simulation
51 Pages Posted: 6 May 2022
Date Written: April 1, 2021
Leading scholars have claimed that the medical malpractice system is working based on studies that estimate the error rate—the rate at which juries come to the wrong conclusion and erroneously hold a provider liable—to be less than twenty percent. But the injured plaintiff, who tends to lose a potentially meritorious case nearly fifty percent of the time, and the innocent medical provider, who is forced to settle a case in which no negligence occurred, deserve better. Part of the problem is exclusive reliance on flawed medical experts to establish the standard of care. In the past, this was justified because there was no other means to establish the standard of care. However, new technology has changed that. As the practice of medicine has become more evidence-driven, we can now use data to extrapolate the standard of care.
This Article describes how medical simulation can be used to further decrease the error rate in medical malpractice cases. High- hazard industries around the world have utilized simulation technology to identify and reduce errors. Medical simulation is similarly capable of identifying medical negligence and reducing future medical errors. By expanding medical providers’ periodic recertification examinations to include medical simulation scenarios, and hiding actual medical malpractice fact patterns within these simulations, three tort reform objectives are achieved: (1) impartial experts provide the basis for standard of care; (2) the standard of care is based on multiple data points instead of two conflicting opinions; and (3) the simulation acts as a training module to help prevent future medical errors.
This solution—which would require minimal statutory changes— holds the promise of reducing the error rate of jury verdicts in medical malpractice cases and ultimately decreasing the cost and improving the quality of health care in the United States.
Funding Information: This paper did not receive any funding for this work. The author does not have any competing interests.
Declaration of Interests: This work is the product of my LL.M thesis from Loyola University Chicago School of Law.
Keywords: Medical malpractice, standard of care, expert witness, conflicts of interest, simulation, mediation
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