Chapter 12 - Using Blind Reviews to Address Biases in Medical Malpractice

Abstract

Expert witness bias, in which an expert's opinion at trial is influenced by factors outside the strict confines of the facts of the case, is an acknowledged problem in medical malpractice litigation. Informational biases that affect expert witnesses include framing, retrospective, outcome, and visual hindsight biases. Litigation biases affect expert witness work as well; they include selection, undersampling, and compensation biases. The result of expert witness bias is testimony that is frequently subject to challenge with respect to its objectivity. No-fault litigation in which damages but not liability are adjudicated has been suggested as a way to circumvent these biases. The use of evidence-based clinical guidelines, which provide a defendant physician with presumptive compliance with the standard of care, has also been proposed, but neither solution has proved practical. Another proposal to address these biases is to blind the witness. Using the medical specialty of radiology as a model, several methods of blinding an expert witness are provided, with an analysis of the advantages and disadvantages of each. Expert witness bias is difficult to eliminate, but steps can be taken to mitigate the effect of bias on medical expert testimony in malpractice litigation.