"The Battle of the Experts": A New Approach to an Old Problem in Medical Testimony

The testimony of medical experts is essential in establishing the extent of a plaintiff's injuries in personal injury litigation. When conflicting or contradictory medical testimony is presented, a phenomenon arises which often attains such noticeable proportions that it has been dramatically labeled "the battle of the experts." In several jurisdictions, judicial, legal, and medical groups have collaborated to create programs aimed at resolving or minimizing these courtroom conflicts. This study seeks to ascertain whether such a program would promote the administration of justice in Nebraska. I. The Historical Existence of the Phenomenon II. The Causes of the Phenomenon … A. Nonmedical Causes … B. Medical Causes III. Significance of the Phenomenon … A. Injustice to Individual Litigants through Confusion of the Court and Jury … B. Misunderstanding and Dissatisfaction between Medical and Legal Professions … C. Disillusionment to Laymen Who Are Touched by the Court Process … D. Lack of Pretrial Settlement and Subsequent Court Congestion IV. The History and Results of American Medical Testimony Plans—The Case for the Court-Appointed Expert System … A. Nonjudicial Medical Testimony Plans … B. Court-Appointed Expert Systems V. The Case against the Court-Appointed Expert System … A. Certain types of Medical Conflicts Are Currently beyond a Reasonably Certain Medical Resolution … B. A Totally Qualified and Impartial Expert Is Inherently Unattainable … C. The Panel System Subverts the Adversary System through Judicial Embroilment in the Controversy and through Conditioning the Jury to Uncritical Acceptance of the Expert’s Opinion as Medical Fact VI. The Practicability of a Nebraska Plan … A. The Selection of Cases for Reference to the Panel—The Province of the Judge … B. The Selection and Cooperation of a Sufficient Number of Qualified Doctors to Constitute the Panel—The Role of the Medical Societies … C. The Provision of Funds to Finance the Procedure Conclusion