tific laws are easy to confuse, for example, when considering the toxicity of a substance, because the dosage of a toxic agent required to produce a particular disease in an animal may be far higher than the exposure of humans who are working with the toxic agent.
The search for “truth” in the courtroom may become problematic when causative questions move beyond hard science to behavioral or philosophic realms. Physicians, in particular, are commonly asked to comment on issues that are “outside the box of scientific rigor,” as one speaker said. At the bedside and in the clinic, diagnosis of signs and symptoms is done with a variety of therapeutic ends in mind. The first goal is to ame-liorate suffering and disability. Intervention can include the treatment of the disease, the repair of injury, or the reduction or elimination of envi-ronmental causes of illness. A second goal is to comfort patients and their families. Here, the speaker stated, diagnosis is done largely for purposes of explanation—“as a narrative to hold on to.” In the courtroom, the goal of diagnosis is to identify a cause of a condition for purposes of ascribing responsibility to people and institutions. Yet the legal system’s desire to answer questions of responsibility and accountability frequently forces non-therapeutic questions on physicians. In child custody cases, for example, a physician may be asked which parent is “better” for the child, even when neither carries a disabling clinical diagnosis.
Criminal law moves even farther from clinical matters into questions of personal responsibility and moral or existential questions. Physicians (as well as psychiatrists and psychologists) may be asked to comment on the level of criminal intent, competency to stand trial, or the appropriate-ness of a death sentence, all of which are distant from the physician’s familiar terrain of clinical diagnosis.
Remarkably, said one attorney, the scrutiny of medical experts speci-fied by Daubert is rare. “When medical necessity is at stake in health insurance coverage cases,” he said, “the plaintiffs’ and the managed-care organizations’ experts are almost always allowed in.” Similarly, when the insanity defense is at issue in criminal cases, clinical experts are permitted to opine not merely about psychiatric diagnosis and symptoms but also about perceived responsibility of the examined individual—“without Daubert or Kumho standing in the way.”