Standard of Care in Medical Malpractice: Deference, Daubert, or Different Direction.

Abstract

This article explores the effect of Daubert v Merrell Dow Pharmaceuticals Inc on the standard of care in United States medical malpractice proceedings. It posits that the significance of Daubert should not be viewed from the perspective of who should be permitted to testify as to the standard of care. Rather, the decision signals the need to reform what should be the content of that standard. Specifically, the Supreme Court, in overruling Frye v United States and imposing a "gatekeeper" role on trial judges, reasoned with the aim of producing more reliable expert evidence. This object would be best realised if doctors are required to testify in respect of whether the conduct in question was "reasonable", not whether it was in accordance with the thinking of other practitioners (as demanded by the current "deferential" standard of care).