November 3, 2011
“Evidence-based medicine” is the term-of-art that means there is research supporting the clinical practice. Academic centers and researchers are pushing evidence-based medicine hard.
It makes medical research more important to clinical practice.
Expert witnesses may be cross-examined on whether or not their opinions are evidence-based. And if not, their credibility often can be attacked. Attorneys need to sort this out in advance.
What other choices are there?
So if it isn’t “evidence-based,” what is it?
It could be either “experience-based” or just handed down from past generations of clinicians.
When there is inadequate credible research on a specific medical issue, experience-based decisions are necessary for clinical judgments and expert opinions.
This is true in a large percentage of cases.
What about bad research?
There is abundant medical research that is poorly designed, biased, conflicts with other research findings, uses too small a test population, or relies on faulty reasoning.
Researchers are strongly motivated to publish “glamorous” or pro-pharmaceutical company articles that increase the likelihood of receiving additional grant money. They often overstate their conclusions.
Generally, clinicians should base their clinical decisions or expert opinions on current best evidence from the medical literature if it exists. They must, however, independently evaluate the quality of that research and balance it against experience and any contradictory research.
Only then can they determine a proper course of clinical action or develop a defensible opinion.
Attacking expert witness opinions.
Evidence-based medicine can create dangerous traps for medical expert witnesses.
Expert witnesses and cross-examiners increasingly criticize opposing experts for failure to rely for their opinions on evidence-based medicine.
Your expert witnesses should be asked if evidence-based medicine could affect the medical issues that expert witnesses for either side will address.
Decide if your expert witnesses should be prepared to defend their opinions as being supported by current credible medical research. This may require showing why research findings that agree are credible, and any that disagree are not credible. Bring this out on direct examination.
Can an opposing expert witness’ testimony be attacked as inconsistent with evidence-based medicine?
This may require not only knowing the relevant medical literature, but also evaluating its credibility. Time spent investigating ways to attack the credibility of any medical research study is time well spent.
You must make a tactical decision about bringing up this issue in deposition and alerting opposing counsel to a possible attack on the medical research relied on by opposing expert witnesses. Undermining that research can convert an expert’s opinion from evidence-based to flawed.