Scientific Evidence and Medical Malpractice Cases In the Nineteenth Century

Michael Ashley Stein, William & Mary Law School; Harvard Law School, Christopher P. Guzelian, Thomas Jefferson School of Law, and Kristina M. Guzelian, Thomas Jefferson School of Law, have published Expert Testimony in Nineteenth Century Malapraxis Actions at 55 American Journal of Legal History 284 (2015). Here is the abstract.

Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.

Download the article from SSRN at the link.