A trend in American litigation has important
implications not only for those who practise medicine but also for those who
purchase and organise it and for those who make equipment that clinicians use. By
describing one particular case in the United States courts, this book focuses on
the clash between medical and legal definitions of evidence that has received
little attention hitherto but which is relevant world wide. The story itself
is relatively simple. A few women claimed that health problems, notably
connective tissue disease, had resulted from their breast implants. A few
"expert" witnesses asserted that this was the case and propounded theories about
how such a causal relation might operate. There was not, and never has been, any
strong evidence based on good epidemiological research that breast implants
actually cause connective tissue disease, using conventional criteria for
defining a causal relation. On the basis of no good evidence the major
manufacturers agreed to pay $4.25 billion to women with breast implants, a
billion dollars being explicitly earmarked for the lawyers. Some 440 000 women,
as many as a third of all women with breast implants, were involved in the class
action. For many of them their lives and health will never be the same again.
It is a fantastic story, well told by Marcia Angell, the executive editor of New
England Journal of Medicine. But within this simple story a number of disturbing
issues emerge, some, but not all, peculiar to the United States because of its
legal system. Angell has six main themes: the place of regulation in American
life today; the impact of litigation on American life, doctors, and lawyers; the
"marginal and ambiguous role of scientific evidence"; the management of science
in the courtroom; "the pervasive effect of the profit motive on so much of our
public life"; and the way in which the media present medical issues to the
public. All of these are relevant and important beyond the shores of the United
States.
Of greatest interest to readers of the BMJ will probably be the two
themes on science in the courtroom and "the marginal and ambiguous role of
scientific evidence in our society." Those involved in the future of public
policy will find much of interest in Dr AngelI's discussion on the place of
regulation in a market economy and the profit motive; I doubt that Dr Angell will
have voted Republican this fall, but her opinions are balanced and she reveals
her biases sufficiently to allow the reader to adjust for them without distorting
her account of events.
She makes clear how clever lawyers or lobby groups can
find "an expert" with a story to tell and make them an influential public figure
and a witness that juries find credible. Some of the descriptions of lawyers make
the blood run cold. The role of the "expert witness," on whom so much hinges, is
surely a topic worthy of serious study by lawyers and doctors on both sides of
the Atlantic.
One of the popular columns in a Glasgow weekly paper, the
Weekly News, was called "Stories from the Police Courts." Perhaps the BMJ needs
to collect some more stories from the medicolegal courts, harrowing experiences
of doctors and patients, and reports of the manipulation of science by lawyers.
These would make compelling reading and build up a body of evidence that would
allow us in health care to change the way in which science is managed in court.
The need for this in the United Kingdom has been highlighted recently by the
president of the Royal Statistical Society, who lambasted the legal profession in
his presidential address. He quoted one ruling on evidence of a statistical
nature: "'Evidence of the Bayes theorem or any similar statistical method of
analysis in a criminal trial plunged the jury into inappropriate and unnecessary
realms of theory and complexity, deflecting them from their proper task.... their
Lordships.... had very grave doubts as to whether that evidence was properly
admissible because it trespassed on an area peculiarly and exclusively within the
jury's province, namely the way in which they evaluated the relationship between
one piece of evidence and another. The Bayes theorem might be an appropriate and
useful tool for statisticians, but it was not appropriate for us in jury trials
or as a means to assist the jury in its task.' So there we have it. To hell with
rationality as we know it-their Lordships have pronounced."
Dr Angell's
excellent book should be read by all who are concerned about both medical science
and justice. Compulsory epidemiology courses for judges may be an unreasonable
aim, but some training in critical appraisal of evidence would seem to be
essential.
J A MUIR GRAY,
director of research and development,
Anglia and Oxford NHS Executive,
Oxford
