Why Technology Provides Compelling Reasons to Apply a Daubert Analysis to the Legal Standard of Care in Medical Malpractice Cases

By: Nichole Hines

Traditionally, courts have applied a “customary practice” standard in determining the legal standard of care in medical malpractice cases. Recently, a few courts have abandoned this dated standard and instead applied a Daubert analysis to the standard of care, which focuses on medical evidence that is scientifically based . In light of these recent holdings, this iBrief argues that with the increasing amounts of technologies improving evidence-based medicine, the customary practice standard is no longer a useful or appropriate test for determining the standard of care in medical malpractice cases. By applying a Daubert analysis to an expert’s testimony on the standard of care, the testimony becomes a scientifically based testimony rather than an expert’s notion of what is common practice in the medical profession.

Cite: 2006 Duke L. & Tech. Rev. 0018

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