Correspondence

Science in the Courtroom

N Engl J Med 1994; 331:1099October 20, 1994

Article

To the Editor:

Dr. Angell editorializes (June 16 issue)1 on her concern about the presentation of medical evidence in the courtroom, particularly in relation to the controversy swirling around breast implants. I also hope that the courts will develop better policies in the future, because the problems are likely to get even more complex.

I have an additional concern. With respect to the large compensation fund established, many of the women with breast implants who may opt for settlement have been sent lists of criteria for compensation to be awarded in various categories. They will then go out, armed with these lists, to get independent medical evaluations for the purpose of obtaining a monetary settlement. Many of the criteria require only the demonstration of subjective symptoms, without any objective evidence of disease.

The tendency in this country to establish the existence of disease and entitlement by popular acclamation is not just misdirected. It is frightening.

Joel Kovarsky, M.D.
Methodist Hospital, Houston, TX 77030

1 References

1
Angell M. Do breast implants cause systemic disease? Science in the courtroom. N Engl J Med 1994;330:1748-1749
Full Text | Web of Science | Medline

To the Editor:

Dr. Angell points out that statements in a courtroom by expert witnesses are not subject to the same scientific scrutiny that is used in the peer review of published articles. Her arguments relate directly to recent judgments in product-liability cases -- specifically, the potential for the development of systemic disease related to silicone breast implants.

I believe Dr. Angell's arguments should be extended to the general area of malpractice. It would behoove the medical community, during this time of health care reform, to move for tort reform as well. So-called expert witnesses can be hired by attorneys in a malpractice case to present evidence that is not based on scientific fact, yet that can potentially sway a jury. In fact, the fear of such presentations frequently leads to out-of-court settlements.

Recently, I was involved in a case as an expert witness. A 65-year-old woman with advanced diabetic microvascular disease had a cardiac arrest at the time of the removal of a jugular venous sheath. Although there was no evidence of an air embolus, the plaintiffs brought suit against the hospital and nursing staff involved. As an expert witness for the defense, I researched the information on air embolus. The evidence available suggested that bradycardia had developed in the woman as a result of a vagal episode. Even so, the insurance company settled out of court for an amount in seven figures, much to my amazement.

Although the merits of the case may be argued, I do not believe the final settlement can be justified. This case is an egregious example of a settlement made because of the fear of a malpractice judgment. As we try to reorganize the U.S. health care system, we should also make a serious attempt to reform malpractice torts. Dr. Angell's argument that expert witnesses be allowed to base their testimony only on published, peer-reviewed articles seems to me an exceedingly important reform.

George I. Frank, M.D.
University of Washington, Seattle, WA 98195