Medicine at the Bar: Medical Experts, Lawyers, and the Making of Malpractice in the Courtroom

This dissertation shows, via a detailed analysis of trial proceedings, how medical malpractice is made in the courtroom. To show this I build on insights from work in the fields of philosophy, history, and sociology of medicine and science. I draw these insights together into a general, rhetorical perspective on the evidentiary process that takes place at trial. This perspective is then deployed in a case study of a single trial. Throughout the dissertation I focus on knowledge of the medical standard of care: the norm against which the conduct of physician–defendants is compared to determine whether or not malpractice occurred. Knowledge of the standard is of a particular kind. In many cases, this knowledge cannot be separated from the argumentative work that takes place during the trial. Furthermore, knowledge of the past events themselves—i.e. physician–defendants’ past actions in the situations in which they found themselves—cannot be separated from said argumentative work. The purview of this argumentative work is extensive, since it also includes authorizing certain people—medical expert witnesses—to opine regarding the events. The case study allows me to underscore the extent to which the trial is not only an argumentative practice, but also a highly disciplined and particularized inquiry into past events. Thus the standard of care is a product of the trial qua argumentative, disciplined, and particularized inquiry. This challenges prevailing conceptions of the standard of care in the doctrine and jurisprudence. Following these, the standard of care is akin to a fact that exists independently of the trial, and the trial is merely a means to make this fact accessible to the judge or jury with the least amount of distortion. I argue, contra these conceptions, that the trial has value in itself because it yields knowledge that cannot be gained any other way. In the case of the medical standard of care, it is knowledge made up of heterogeneous considerations—technical, scientific, moral, and legal—brought to bear on specific actions in specific situations.

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