Litigation Science

side or another in a legal proceeding would seem to have a built-in bias.

In March 2006, scholars from the fields of science, law, ethics, and public health met at a conference sponsored by the George Washington University School of Public Health to explore “Truth and Advocacy: The Quality and Nature of Litigation and Regulatory Science.” The scholars presented papers on whether litigation-generated science should be judged by the same standards as scientific studies conducted outside the legal arena, how the incentives and intentions that occur in court shape scientific inquiry, whether there is true value in litigation scientific work, and whether the motivations to do biased studies are quantitatively different for litigation science compared with nonlitigation science.

Much attention has been focused on the problems of potentially tainted sources of funding for research, on interests that seek to keep unfavorable evidence from coming to public attention, and on those who undermine the legitimacy of other critical research.

In noncriminal cases involving torts, plaintiffs claim harm from a company’s products or a person’s actions. To prove or discredit claims, witnesses provide expert scientific testimony. Judges are largely untrained in the sciences, though they have become the ones to determine if the testimony presented is “good science.”

To assist judges in distinguishing the reliability of scientific evidence, the U.S. Supreme Court offered criteria in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals, Inc. The court ordered judges to screen junk science from trials in Daubert, and in the intervening 15 years, they have often applied a blanket prohibition against using litigation studies because they could not adequately determine the strengths and weaknesses of testimony. The general conclusion of those attending the March 2006 conference was that somehow the courts need to learn to cope with bias and scientific uncertainty rather than attempt to ban such testimony altogether.

Even judges and jurists who have reasonably sophisticated training in research and statistical analysis find it difficult to understand the subtleties of error significance or a finding that is due to chance. And the greater part of dispute resolution now occurs outside the framework of a trial.

There is some momentum in states to increase the time for filing a claim after an incident has occurred. Proponents of this effort feel that there would then be a better chance of obtaining repeatable, factual results in scientific studies. Perhaps the answer to the litigation science versus prelitigation science debate lies in the application of a single set of standards to judge the quality of scientific results given during a trial or regulatory proceeding regardless of why the work was conducted.

Federal Issues
Democratic leadership in both houses of Congress refused to hold public hearings on any medical liability reform proposals until June. The reauthorization measure for Medicare and Medicaid, an Energy and Commerce Committee bill, H.R.1343, was heard in early June. In working with the ranking member on the committee, Nathan Deal (R-GA) and committee member Gene Green (D-TX), our federal advocates in Washington, DC, were able to have a substitute amendment introduced in the bill’s language. This amendment included medical liability reform by capping noneconomic damage awards at $250,000 under the Federal Tort Claims Act for health center volunteer practitioners working in federal health centers or in declared emergency areas.

H.R.1343 passed the House in late June. Its companion bill, S.901 (Edward Kennedy, D-MA), passed the Senate and will go to conference committee. This bill does not contain the amendment language. We are working with several of the 70 co-sponsors to include the House immunity language in the final conferenced legislation.

State Issues
With most state legislatures adjourned for the year, 2008 can be dubbed a year of legislative battles to defeat bad proposals. The trial bar has been aggressive in its efforts to undermine effective tort reform by adding various reporting requirements and expanding the ability to sue. A few medical liability reform bills were passed this year. A report on these bills and two court decisions follows:

Georgia Governor Sonny Perdue signed H.B.89 (Timothy Bearden-R) in mid-May. This measure provides some liability protections when performing acts as a “Good Samaritan” in time of emergency or crisis.

Louisiana Governor Bobby Jindal signed S.B.308 (Jack Donahue-R) on July 8. This measure requires a pretrial hearing on the qualifications and admissibility of expert witness testimony. Such a motion must be filed 60 days prior to the trial date. Additionally, the bill contains a “loser pays” provision.

Tennessee Governor Phil Bredesen signed S.B.2001 (Mark Norris-R) in mid-May. The new law requires any person claiming medical negligence to give written notice to each alleged health care provider at least 60 days before filing a suit.

Virginia Governor Tim Kaine signed H.B.501 (Phillip Hamilton-R), and it took effect on July 1. The measure expands the definition of “professional services” provided in a nursing home setting to include psychosocial services, nutrition, patient monitoring, and interventions. These services will now fall under the state’s cap during any litigation.

West Virginia Governor Joe Manchin signed H.B.4019 (Speaker Rick Thomp-son-D) at the end of March. This bill provides revisions to the venue reform bill that passed last year.

On February 22 the Oregon Supreme Court upheld the constitutionality of the statutory cap on noneconomic damages as it applies to claims for wrongful death (Hughes v. PeaceHealth).

We are watching the Georgia Supreme Court to see if it accepts an appeal on a lower court ruling that Georgia’s noneconomic damages cap is unconstitutional.

The Ohio Supreme Court issued a long-awaited opinion upholding the constitutionality of the 2003 reforms placing a monetary cap on noneconomic damage awards.

Because of a mandatory retirement age and a resignation, the Florida Supreme Court will see as many as four new justices appointed by Governor Charlie Crist. The Doctors Company is working with organized medicine to support strong tort reform candidates who are eligible for appointment.

Presidential Politics
Arizona Senator John McCain’s Web site (www.johnmccain.com) states, “We must pass medical liability reform that eliminates lawsuits directed at doctors who follow clinical guidelines and adhere to safety protocols. Every patient should have access to legal remedies in cases of bad medical practice, but that should not be an invitation to endless, frivolous lawsuits.” In an article that appeared online earlier this year, McCain indicated support for caps on awards and expressed some support for a loser-pays rule. He also lamented the increasing costs of defensive medicine. ¹

Illinois Senator Barack Obama’s Web site (www.barackobama.com) states that he will “strengthen antitrust laws to prevent insurers from overcharging physicians for their malpractice insurance and will promote new models for addressing errors that improve patient safety, strengthen the doctor-patient relationship, and reduce the need for malpractice suits.” Obama indicates he will establish an independent institute to guide reviews and research on comparative effectiveness so Americans and their doctors can make the best decisions for their health. He will challenge the medical system to eliminate inequities in health care through quality measurement and reporting, implementation of effective interventions, and diversification of the health workforce. He was one of the 18 (of 44) Democratic senators voting for the Class Action Reform Act (S.5).