The Changing Views on Customary Practice vs. Evidence Based Medicine in the Courts

In the courts, customary practice often is used as the standard for testimony. Nevertheless legal experts are beginning to see a shift in the balance toward evidence based medicine. Evidence based medicine uses evidence from medical research to optimize decision making.

The courts traditionally have focused on doctors' customary practice, however that is inherently subjective. Customary practice uses what "most doctors in the local geographic area or specialty usually do".

Customary practice can be very subjective and variable. For instance, forensic experts use their anecdotal and personal experience as a basis for their testimony on causation. These experience-based opinions are more subjective and are the reason experts often hold differing views on causation in a given case.

Evidence based medicine, on the other hand, uses objective analysis rather than subjective interpretation. Evidence based medicine implements the extensive utilization of the best current medical evidence, in making treatment decisions for patients. This entails using the most clinically applicable research and diagnostic testing.

One challenge of evidence based medicine is deciding what kind of evidence is admissible in court. One Supreme Court case, Daubert v. Merrell Dow, determined a trial judge as the one who pre-screens scientific evidence and decides which evidence to admit that will inform the jury. Such decisions could be beyond the skill and training of judges. In addition, clinical practice guidelines may not be available or may not be uniform.

The courts are more likely to embrace these standards if evidence based medicine is used by doctors in their own practices. And court acknowledgement of evidence based medicine and scientific standards will make physicians much more likely to embrace such standards to lessen their liability risk.

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