The Pyloritek test and the CLO test: accuracy and incremental cost analysis

Malpractice lawsuits affect most physicians at some point in their career. Proving that malpractice has been committed is based on substantiation of a variety of elements, including that the patient was rendered care that was "below the standard" of care. While many physicians believe that the "standard" will be judged objectively on the basis of published scientific sources and accepted conventions, the standard is established rather by the testimony of expert witness(es). It is the expert testimony that sets the standard and is proof of the standard. The testimony is open for acceptance or rejection by the judge or jury for a variety of nonscientific reasons. We review what the defendant doctor might expect regarding proof required to establish breach of the standard of care and what the prudent expert should be obliged to demonstrate.     

The evidentiary status of social science under Daubert: Is it "scientific," "technical," or "other" knowledge?

The U.S. Supreme Court assumed the difficult task of establishing the threshold standard for the admissibility of expert testimony that is based on "scientific" knowledge in Daubert v. Merrell Dow Pharmaceuticals (113 S. Ct. 2786, 1993). Psychology confronts a significant challenge under Daubert, which calls for judges themselves to make determinations of scientific validity rather than merely looking to the pertinent scientific community for approval. Daubert identifies 4 factors lower courts can use to determine scientific validity: falsifiability, error rate, peer review and publication, and general acceptance. It is argued that expert testimony on eyewitness identification would hold up fairly well to these scientific validity factors, whereas expert testimony on repressed memories might not. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The effects of clinical and scientific expert testimony on juror decision making in capital sentencing.

The Supreme Court and many state courts have assumed that jurors are capable of differentiating less accurate clinical opinion expert testimony from expert testimony based on more sound scientific footing and of appropriately weighing these two types of testimony in their decisions. Persuasion and jury decision-making research, however, both suggest that this assumption is dubious. The authors investigated whether mock jurors are more influenced by clinical opinion expert testimony or actuarial expert testimony. Results suggested that jurors are more influenced by clinical opinion expert testimony than by actuarial expert testimony and that this preference for clinical opinion expert testimony remains even after the presentation of adversary procedures. Limited empirical evidence was found for the notion that various types of adversary procedures will have a differential impact on the influence of expert testimony on juror decisions. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Expert testimony, legal reasoning, and justice. The case for adopting a data-based standard of care in allegations of medical negligence in the NICU

Sunstein has written, "First, and most obviously, judgments about specific cases must be made consistent with one another. A requirement of coherence, or principled consistency, is a hallmark of analogic reasoning (as it is of reasoning of almost all sorts)." In cases of alleged medical negligence, our current system of malpractice litigation supports the possibility that inaccurate anecdotal testimony by expert witnesses may be credited equally or even preferred to more accurate testimony based on empiric data. This condition lends itself to inconsistent outcomes that violate basic principles of justice. In our view, the standard of medical care ought not be described by the idiosyncratic postulation of single behavior (analogous to promulgating the equation of a single line on a Cartesian plane). Rather, the standard of medical care is best viewed as a distribution of behaviors (family of lines) that can be empirically determined to account for most practice decisions in comparable cases. The recent Daubert formulation of admissibility of expert testimony can be interpreted as providing judicial support for a hierarchy of expert testimony in cases of alleged medical negligence. On this view, testable comparisons of the behavior in question against reliably documented distributions of standard medical behavior in similar circumstances rank higher than untestable comparisons using unreliable anecdotal recollections of individual expert's undocumented experience. We believe that widespread adoption by the medical community of the principle that the value of expert testimony describing the standard of medical care increases in direct proportion to its congruence with a data-based determination of the distribution of skill and care ordinarily provided in similar circumstances would significantly reduce the potential for injustice visited on plaintiff and defendant alike.     

Experts in court: A view from the bench.

There has been a significant increase in the frequency of expert testimony over the past 25 years in Canada. As such, there has also been an increase in psychological expert testimony. In drawing from his experience as a litigator and judge, and reflecting on the articles by A. D. Yarmey and M. Peters (see records 2001-06561-002 and 2001-06561-003, respectively), the author explains what it is that judges expect of an expert and how experts should be prepared. He also summarizes some of the legal rules concerning expert testimony. Finally, the author considers the future of expert psychological testimony. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Science, common sense, and the determination of mental capacity.

In 1993, when the Supreme Court decided Daubert and created the modern standard for the admissibility of scientific evidence, it almost certainly did not consider its possible effect on evidentiary hearings in probate courts even though such courts routinely admit expert testimony in will contests and guardianship hearings. Probate courts also admit testimony of lay witnesses who express their opinion as to the mental capacity of the individual in question. Yet both expert and lay witnesses are only "fact bringers" and not "fact interpreters" because the ultimate question of capacity is legal, not factual. Because the determination of legal capacity is made by the judge or jury, the role of experts in capacity trials is not fundamentally different than that of lay persons. The limited role of the expert suggests that probate courts should allow great latitude in the admission of expert testimony because the fact finders must ultimately rely on their own amorphous sense of "legal capacity." (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The case for expert testimony about eyewitness memory.

Eyewitness expert testimony informs a jury about psychological processes and accuracy related variables in eyewitness testimony. Appropriately chosen testimony is not prejudicial, and it is on sound scientific ground. Eyewitness research has established reliable, applicable findings and demonstrated that jurors have insufficient knowledge of some findings and poorly judge eyewitness accuracy. Studies of trial dynamics and reactions to eyewitnesses suggest a sizable risk of inordinate eyewitness impact, creating sizable risk of conviction on the basis of mistaken identifications. Trial simulations examining eyewitness expert testimony indicate it promotes modest, appropriate increases in skepticism about eyewitnesses, even when the expert gives a general overview of research and admits to limitations. The psychological and legal professions should develop responsible guidelines for use of expert testimony in court. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Medical expert assessment in civil and criminal law--stand for evaluating medical expert assessment

The standard for the assessment of the medical expert opinion is defined by the high demands expected from the judgement of a high court: Objectiveness, solid knowledge, self-criticism, in contestability in diction and firmness in the argumentation. From the legal point of view, the knowledge of the medical expert witness has to clearly go beyond the knowledge of his profession. The obligation for objectiveness is the basis of expert witness' activity. From the medical point of view, the physician has to take into account during the preparation of his expert assessment that structural deficiency of the personnel and surgical equipment of a department for surgery frequently plays a role due to the development of surgery to high tech medicine and the hospital physician cannot affect this. It is necessary for a physician as an expert witness to have basic knowledge about the evidence law and the medical liability process. On the other hand, judges and lawyers should basically know the medical way of thinking.     

Expert psychological testimony in rape trials: A social-cognitive analysis.

In three studies with undergraduate subjects, we investigated juror use of group probability data (base rates) in the form of expert scientific testimony in a simulated rape trial. In Study 1 we hypothesized that juror use of such evidence would be influenced by the type and timing of the expert testimony presented. As predicted, jurors made the most use of the expert testimony when it was linked explicitly to the case under consideration and presented early in the trial. Study 2 demonstrated that the observed effects were not attributable to differences in the duration of the expert testimony or to enhanced recall and suggested that use is facilitated by concrete rather than abstract presentations of expert testimony. In Study 3 juror use of expert testimony was further examined by analyzing jury deliberations from Study 1. Results show that although juries hardly discussed the expert testimony itself, the expert testimony influenced interpretations of case facts. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Silence is not golden.

Suggests that psychologists should testify in court concerning psychological research on eyewitness testimony. This recommendation contradicts that of M. McCloskey and H. E. Egeth (see record 1984-06612-001). Documented cases of convictions of innocent people based on faulty eyewitness accounts indicate a need for improvement in legal procedures. One improvement is to educate jurors through expert testimony. Research on the psychological factors that influence the accuracy and completeness of eyewitness accounts could be useful in clarifying commonly held misconceptions. (37 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

At the coalface--medical ethics in practice. First, do no harm

When a physician acts as both doctor and researcher conflicts can develop. When a doctor does not know whether a patient is taking active drug or placebo, any new medical problems can result in a dilemma. Is the patient's suffering a side effect of the medication or is this a new medical problem? Mrs W's case demonstrates the problem that can occur when the physician is blinded in the name of research.     

Compatibility of therapeutic and forensic roles.

An article by S. A. Greenberg and D. W. Shuman (1997; see record 1997-02162-009) has been prominently referenced as an authoritative document making the argument that "explicit ethical precepts" (p. 50) are violated when a therapist provides expert forensic testimony. Greenberg and Shuman (1997) claimed that psychologists attempting to do so are engaging in an "irreconcilable conflict between therapeutic and forensic roles" (p. 50). Their arguments are challenged here and shown to conflict with established ethical standards and guidelines for forensic psychologists. The current author discusses serious potential negative ramifications to the public interest and the profession of psychology if state boards of psychology adopt the position of Greenberg and Shuman as a basis for the discipline of psychologists both treating patients and providing expert testimony. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Viability and recovery of peripheral blood mononuclear cells cryopreserved for up to 12 years in a multicenter study

Polish physicians-philosophers tried to find a compromise between medicine as a science and medicine as a healing art. They stated that clinical practice should be transformed into science, bearing in mind that there would be no medicine without the existence of the sick. A perfect physician is a good and wise person and not exclusively a proficient expert. Polish physicians exercised a science that they called philosophy of medicine. It included logic, psychology, and medical ethics. The Polish school claimed that the history of medicine and philosophy of medicine are necessary for future doctors. The historical and philosophical approach makes it possible to recognize the subject of medicine (health, disease, and the sick) and its aim (treatment, restoration of health or just alleviation of suffering). The ethics teaches what values are pursued by medicine, what moral duties a doctor has, and what role model to follow to become a good physician. Placing the sick in the focus of medical interest, the Polish school taught future physicians to see in them suffering fellow men who should be embraced with care, compassion, and Christian charity. Such an approach to the ethical aspect of medical philosophy became incorporated into an education towards humane values, responsibility for ones' life and health in the spirit of the ethics of care.     

When the psychologist testifies.

Prompted by an article by J. L. McCary (see record 1961-01526-001), author Wolfgang Schwarz wanted to relate his own experiences of being an expert witness. The introduction in the article by McCary states that "this case material should familiarize the psychologist with some of the usual problems encountered in testifying as an expert witness." However, Schwarz's qualifications as an expert witness were not challenged to the degree related in McCary's experiences. McCary's presentation in its condensed and extensive deleted form does not allow for an evaluation regarding the specific testimony. Expert testimony experiences have led Schwarz to the conclusion that satisfactory preparation for the court requires command of the material about which one is testifying, a thorough knowledge of behavioral norms and psychopathology, and an adequate fund of general information. McCary's case material may be unusual in the amount of repartee it contains and the number of ad hominem exchanges. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Reasoning about scientific evidence: Effects of juror gender and evidence quality on juror decisions in a hostile work environment case.

This study examined whether participants were sensitive to variations in the quality of an experiment discussed by an expert witness and whether they used heuristic cues when evaluating the expert evidence. In the context of a hostile work environment case, different versions of the expert testimony varied the presence of heuristic cues (i.e., whether the expert's research was generally accepted or ecologically valid) and evidence quality (i.e., the construct validity of the expert's research). Men who heard expert testimony were more likely to find that the plaintiff's workplace was hostile than were men who did not hear the expert testimony; expert testimony did not influence women's liability judgments. Heuristic cues influenced participant evaluations of the expert testimony validity, but evidence quality did not. Cross-examination did not increase juror sensitivity to evidence quality. Implications for science in the legal system are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Communication between treating physician and occupational physician in the management of absenteeism

In case of an employee's absenteeism, both the treating physician and the company doctor possess relevant medical information. With a view to reducing absenteeism, exchange of data is considered important. Provision of data requires the consent of the patient/employee. If the latter is informed of the purpose for which the data are requested and of how they will be used, medical professional secrecy is not violated. In order to enhance the exchange of data between treating physician and company doctor, without bypassing the requirement of consent or cancelling the division between treatment and checking, the treating physician should be permitted to provide more information than just the data asked for in specific questions. This however requires the development of guidelines for careful consultation.     

Patients' trust in their physicians: effects of choice, continuity, and payment method

OBJECTIVE: To evaluate the extent to which physician choice, length of patient-physician relationship, and perceived physician payment method predict patients' trust in their physician. DESIGN: Survey of patients of physicians in Atlanta, Georgia. PATIENTS: Subjects were 292 patients aged 18 years and older. MEASUREMENTS AND MAIN RESULTS: Scale of patients' trust in their physician was the main outcome measure. Most patients completely trusted their physicians "to put their needs above all other considerations" (69%). Patients who reported having enough choice of physician (p < .05), a longer relationship with the physician (p < .001), and who trusted their managed care organization (p < .001) were more likely to trust their physician. Approximately two thirds of all respondents did not know the method by which their physician was paid. The majority of patients believed paying a physician each time a test is done rather than a fixed monthly amount would not affect their care (72.4%). However, 40.5% of all respondents believed paying a physician more for ordering fewer than the average number of tests would make their care worse. Of these patients, 53.3% would accept higher copayments to obtain necessary medical tests. CONCLUSIONS: Patients' trust in their physician is related to having a choice of physicians, having a longer relationship with their physician, and trusting their managed care organization. Most patients are unaware of their physician's payment method, but many are concerned about payment methods that might discourage medical use.     

Degrees, Doctors, and Psychologists.

While Fields' letter in the December 1955 American Psychologist is informative and significant, it makes some errors which should be corrected, and further fails to touch on a number of pertinent problems. It is unfortunate that the public, as well as official agencies such as the House Committee on the Armed Services, misapply the title "Doctor" making it, as would appear, identical with the MD. The title "Doctor" has historic academic significance stemming from middle English, after the Latin doctorem, a teacher or instructor who inculcates learning, opinions or principles (Onions, C. T. Oxford Universal English Dictionary, Oxford: Oxford University Press, 1937). Thus "Doctor" is, and has been, a degree applied to sundry branches of academic learning, presumably a certificate of the highest proficiency in a subject. The title "physician," contrary to the statement of Dr. Fields, is not for the exclusive use of the doctor of medicine, either historically or contemporaneously. From the legal standpoint, or the standpoint of training, a number of people in the healing arts aside from the doctor of medicine are entitled to the use of the title "physician." Certainly the psychologist must be made aware of the status of other professional people in the healing arts aside from the doctor of medicine. Whether their philosophical position is acceptable to him or not, many of these practitioners are formally trained and hold legal rights to practice. In terms of ethical problems, incidents may arise of an unpleasant interprofessional nature due to the psychologist's ignorance of the training and legal status of other healing professions: such an incident was reported within the past two years, in which a chiropractor having appropriate undergraduate work was barred from a graduate course in psychology on the basis of his chiropractic affiliation. A lack of understanding of the functions and qualifications of other professional groups is unfortunate in terms of interprofessional relations, and the ultimate status of psychology itself in its therapeutic aspect. Probably the big problem is recognition of the new professional role which psychology is assuming, a role which demands standardization of curriculum and perhaps the development of a doctorate in medical psychology, as suggested by L. S. Kubie (1954). (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The physician and accidents. Legal and medical problems

German law requires that any physician at a place of accident is obliged to help according to his training and ability. As an emergency doctor on duty he works in a warrantee position. In cases with multiple accident victims triage may be necessary, corresponding to the priority of medical care. In criminal procedures against a physician due to omitted help, there is no probative charge against the accused. On the other hand, civil law sets up an objective standard: attention as required in communication. In giving initial medical assistance for unconscious patients or injured children, rules of "authorized management without commission" become valid. Basic first aid measures involve: securing, saving and rescue. Life-threatening situations such as severe bleeding, airway obstruction and cardiac arrest must be dealt with immediately. Following this, such measures as proper positioning, clearing of the respiratory tract, removal of dental prostheses, evaluation of multiple injuries, avoidance of hypothermia and initiating infusions are mandatory. The orientating examination of the accident victim is described, as is the "ABCD Rule" for treating respiratory insufficiency or circulatory arrest and shock, using heart massage and artificial respiration. Finally, medical first aid is described for special injuries, such as cerebral or thoracic trauma, fractures and burns. The psychological situation affecting the physician at the place of an accident is characterized.