Med school for judges: A crash course in medical litigation

Black robes mingle with white coats to learn about medical science and how to apply it to complex court cases.

By — Posted July 28, 2008

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In a packed courtroom, plaintiff and defense attorneys recounted the tale of a 16-year-old boy who had a relapse of non-Hodgkin lymphoma and died after a bone marrow transplant.

All eyes focused intently as a plaintiff's expert witness came under fire, the scenario undoubtedly raising questions in the audience's minds:

  • Was the experimental therapy the parents wanted to pursue a viable alternative accepted in the medical community?
  • Did a chemotherapy overdose affect the boy's eligibility and success rate for a transplant?
  • Was it typical for a treating physician to consult colleagues, even a hospital ethics panel, before deciding what treatment to pursue?

But instead of one judge on the bench, more than 30 judges presided over the mock trial.

After getting a rare, behind-the-scenes look at the case, judges got a chance to address their own questions to the doctors, scientists, lawyers and fellow judges participating in the scenario and others like it.

The occasion was the National Judges' Medical School, held at the Indiana University School of Law-Indianapolis in May. The mission: to equip judges with better knowledge of medical science to help them interpret complex health care cases.

Established more than two years ago, the program evolved from the Human Genome Project, funded by the National Institutes of Health, and the Einstein Institute for Science, Health and the Courts, a nongovernmental organization sponsored by the U.S. Dept. of Justice. The medical school is part of a larger initiative -- the Advanced Science and Technology Adjudication Resource Center, or ASTAR, based in Washington, D.C. -- that also educates judges on how to sort through other types of scientific evidence that arise in civil and criminal cases. More than 200 state and federal judges participate from 39 jurisdictions across the country.

Doctors hope the school offers judges insight into medical science and decision-making to bridge the gaps between medicine and the law. They share a common goal with judges: preventing unreliable or "junk" science from derailing the judicial process.

"This is an opportunity for [judges] to be immersed in the actual medical process so when cases come to their courts, they can have a lens on what preceded their consideration of a case," said Thomas S. Inui, MD, an internist and professor at IU's School of Medicine in Indianapolis, who taught at the judges' school.

Doctors strive to show judges that science and medicine involve questions to which the answers are not always obvious, said internist David Flockhart, MD, PhD. He played an expert witness taking questions about the validity of a non-peer reviewed study in a mock trial of a pharmaceutical labeling case.

"Ultimately, science is about truth, and that's fundamentally what fairness in the law is about. We are trying to create a system such that that happens," said Dr. Flockhart, chief of the Division of Clinical Pharmacology at the IU School of Medicine.

The Indianapolis judges' school prepped participants with a crash course in litigation involving medical errors, where judges observed staged trials and sifted through clinical studies. They also peered into simulated conversations over treatment decisions among doctors, a patient, a health insurance executive and a hospital ethics committee.

The previous judges' med school -- and also the first, held at the University of North Carolina at Chapel Hill School of Medicine in 2006 -- focused on cancer.

Keeping up with science

"Science and medicine do not stay still," said Franklin M. Zweig, PhD, the president of ASTAR, which recruits judges nationally to participate in its science education program. The goal, he said, is to "develop more confidence in the judicial system; and if you have judges and juries making decisions based on faulty scientific background, you don't have fair trials or fair appeals."

In addition to the medical school, judges take other science classes -- from biotechnology to neuroscience to forensics -- as part of a two-year, 120-hour curriculum. First they must attend a "boot camp" to get up to speed on basic scientific terminology in topics such as molecular biology and genetics.

From "standard of care" to "medical necessity," judges at the medical school said they learned that doctors speak a different language than that used in the legal world. "We have to remember that we are hearing from doctors, and there's a difference between medical causation and legal causation," said Indiana trial judge John A. Radar.

Understanding those nuances can help judges deal with battling expert witnesses, who can often muddy the science, said Stephanie Domitrovich, a trial judge in Pennsylvania's 6th Judicial District. "We can't always rely on the parties, who are in an adversarial situation. That's not what science is about."

If judges are trained to know what questions to ask about the credibility of an expert's qualifications or a peer-reviewed study, they can toss out irrelevant evidence or seek another opinion from an independent, court-appointed expert, Domitrovich said.

Even when judges don't have a developed record of evidence, just having the medical and scientific background can help them make decisions, said U.S. District Judge Sarah E. Barker, of the Southern District of Indiana. For example, judges may have to rule on a preliminary injunction or class-action status before a case goes to trial.

"When something arises in court, it's usually for an after-the-fact review. So it's always instructive to look at how problem-solving happens in other disciplines so we can figure it out looking forward instead of just looking backward," said Barker, who taught at the medical school and serves on the ASTAR board.

Where science and law converge

As science and medicine evolve, judges continue to see a wide range of novel legal issues wind up in court, making their role as gatekeepers of reliable evidence more critical.

It was in light of such rapid change that the U.S. Supreme Court in 1993 broadened judges' responsibility to ensure that the science presented in courtrooms is relevant and valid.

The ruling in Daubert v. Dow -- one of the guiding principles for the judges' school -- exhorted judges to scrutinize scientific evidence based on whether it has been tested, peer-reviewed and widely accepted in the relevant scientific field.

Rather than leave it to lawyers or a jury to sort out, "we are being called upon to exercise some independent judgment: Is this scientifically reliable and will it be helpful to juries?" said Indiana trial judge Kenneth H. Johnson, who attended the medical school.

But not all judges are adequately prepared to make those determinations, said Thomas J. Moyer, chief justice of the Ohio Supreme Court and vice chair of the ASTAR board.

"While we are usually deciding legal issues, the evidence is especially important because we are often breaking new ground," he said. Many cases also involve public policy concerns, said Moyer, who completed his ASTAR training two years ago.

Before then, he saw a number of complex health care cases come to the high court. For example, the Ohio Supreme Court in 2006 decided a wrongful birth case involving the use of genetic screening. The court allowed parents to sue doctors for negligent medical advice or erroneous genetic testing that resulted in the birth of a child with disabilities.

Since that decision, the court has received two related cases, and Moyer said he expects his knowledge of DNA to come in handy. Other judges in his jurisdiction have applied their advanced training in various civil and criminal cases, he said.

From end-of-life issues displayed in the Terri Schiavo case to the use of experimental drugs argued in Abigail Alliance v. von Eschenbach, judges at the medical school also learned that bioethics issues, often involving a range of multidisciplinary expertise, continue to raise legal questions that can end up on court dockets. Yet not all judges were aware that they could draw on bioethics experts or members of a hospital ethics committee to testify in the midst of such disputes.

"Judges need to know that bioethics is a rigorous field of scholarship, which, where relevant, should be of some value to them in their deliberations," said Eric M. Meslin, PhD, director of IU's Center for Bioethics in Indianapolis and an instructor at the judges' school.

Specialized judges

Armed with their newfound knowledge, the 233 judges expected to complete the ASTAR advanced science training by the end of 2008 will serve as resources for fellow judges in their jurisdictions and help train the next generation of selected judges. The ASTAR program is free for invited participants.

The project aims to develop a corps of 500 active, specialized judges by 2010. Zweig, ASTAR's president, said it is up to individual states to create a system for deploying the judges.

ASTAR's board chair, Chief Judge Robert M. Bell of Maryland's Court of Appeals -- the state's highest level -- said the high court may establish a separate track to manage complex cases involving novel evidence and assign one of its 39 ASTAR-trained judges to those cases.

In Ohio, Chief Justice Moyer said the state Supreme Court is contemplating rule changes that would help courts identify its troop of 35 trained judges and encourage courts to appoint those specialized judges to appropriate cases.

Moyer hopes the medical profession "will find comfort in the fact that there is a developing group of judges who understand enough about the science of medicine to be better gatekeepers. ... Because at the end of the day, what we all want is for the judgment to be based on the very best information available."

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Law meets science

Judges participating in the Advanced Science and Technology Adjudication Resource program go through a two-year curriculum to build their knowledge of science and medicine. Among the classes:

Language of the Sciences Boot Camp: Doctors and scientists teach general scientific terms of reference related to molecular biology, genetics, forensics and nanotechnology.

Judges' Medical School: A crash course in medical-specific issues related to cancer and medical errors includes interactions with doctors, scientists and patients in mock scenarios that give rise to legal disputes.

Judges' Science School: The broader types of scientific evidence -- from neuroscience to brain scans to addiction treatment -- are discussed along with their application in various civil and criminal cases.

Source: Advanced Science and Technology Adjudication Resource Center

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