The new england journal of medicine
n engl j med 352;5 www.nejm.org february 3, 2005 520
book reviews
laws of men and laws of nature:
the history of scientific expert
testimony in england
and america
By Tal Golan. 325 pp. Cambridge, Mass., Harvard University
Press, 2004. $49.95. ISBN 0-674-01286-0.
abhor the traffic in testimony to
which I regret to say men of science some-
times permit themselves to condescend, Attorney
General Sir Alexander Cockburn famously ob-
served after considering the conflicting medical tes-
timony given at Dr. William Palmers celebrated poi-
soning trial in 1856. Cockburns sentiments were
not unique; whether as a result of questionable re-
muneration schemes or suspected partisanship,
witnesses with scientific expertise attracted harsh
criticism from legal and lay communities alike, even
as both constituencies turned increasingly to men
of science for advice and courtroom guidance. It is
a singular achievement of Laws of Men and Laws of
Nature that its author, Tal Golan, has embedded the
history of scientific evidence in the contentious fo-
rum of adversarial law, where any variation in ex-
pert opinion could be characterized as evidence of
unwarranted claims to expertise or, worse, as the
venal prostitution of knowledge for personal ad-
vancement.
Surveying a wide range of forensic issues
from insurance claims to nuisance litigation, from
malpractice to lie detectors Golan describes
compelling courtroom battles often animated by
the fear that specialist opinion would unduly influ-
ence a jurys verdict. One particularly vivid example
concerned the conflict between x-ray photography
and word testimony. Long the province of a skilled
advocate, the ability to use language to telling effect
was perhaps the lawyers greatest resource. The in-
troduction, therefore, of a new class of machine-
made testimonies threatened to appeal directly to
the jurors visual sense, unmediated by the lawyers
language. Indeed, x-ray films threatened the pre-
rogatives of the medical witness as well: any trained
technician could take a photograph. The story of
how x-ray technology was legalized by the Su-
preme Court and the technicians status relegated
to that of radiographer preserving the unique
status of expert for the scientific witness who
alone could claim the training necessary to read the
x-ray films makes for fascinating reading and is
told extremely well.
The evolving role of the attorney in the solicita-
tion of medical opinion, however, deserves a much
fuller treatment, because the history of forensic tes-
timony is, basically, the history of law. Only with the
passage of the Prisoners Counsel Act in 1836 were
English attorneys authorized to formulate a defense
case, to address the jury directly, and to gain access
to the indictment. In consequence, more than evi-
dence was at stake; the essentials of proof and the
criterion of guilt beyond a reasonable doubt were
finally subjected to long-deferred scrutiny. The au-
thors predominant focus on the self-conscious
professional aims of Victorian scientists presents,
therefore, only part of the equation. Suddenly re-
leased from the strictures that had ensured judicial
dominance in the division of labor in the courtroom
and in constructing formulas for proof, lawyers
were finally free to enlist a broad range of specialist
opinion to probe the supposed facts of a case.
Nowhere was the question of standards of proof
more at issue than in the testimony of Victorian
mad-doctors, whose history the author chose to
leave out because, he writes, their story has been
well investigated. This was a regrettable decision.
Victorian psychiatric testimony would have correct-
ed the impression that medical witnesses were sus-
pect because of a too close identification with the
defendant. Mad-doctors were likely to appear on
both sides of the issue. Indeed, the medical man
who appeared most frequently in early-19th-century
insanity trials was a prison surgeon, employed by
the court to inspect defendants thought likely to
raise an insanity plea. Private physicians and sur-
geons were also enlisted by the court and routinely
pronounced the prisoner sane. Many a putatively
insane defendant went to the gallows after such
testimony.
Furthermore, inclusion of the experience of
psychiatrists would have added historical reso-
nance to the authors otherwise excellent discus-
sion of the psychology of testimony. In alerting
i
Downloaded from www.nejm.org on February 25, 2009 . Copyright 2005 Massachusetts Medical Society. All rights reserved.
n engl j med 352;5 www.nejm.org february 3, 2005
book reviews
521
the legal community to the inconvenient observa-
tion that the testimony of a witness was not a snap-
shot in time but, rather, the product of introspec-
tion, early-20th-century forensic psychologists drew
attention to the problematic nature of the layper-
sons recollection of what actually happened. Ex-
actly a century earlier, it was a similar disparaging
of a witnesss belief that a defendant was sane (or
mad) that served as the springboard for the emer-
gence of courtroom psychiatry. When a latter-day
forensic psychologist volubly despaired of the blind
confidence in the observation of the average nor-
mal man, he was taking a page from the first-gen-
eration forensic psychiatric witnesses, who made
use of a parallel distancing from the observations
of the layperson to carve out a cognitive niche of
their own in the Victorian courtroom.
These reservations aside, the author has written
an insightful analysis of the confluence of interests
of legal and medical practitioners over the past two
centuries, skillfully illuminating how the growth in
one did much to spur refinement and reliability in
the other. Golan perceptively argues that the courts
have not been mere gatekeepers but, rather, active
partners in the production and maintenance of
credible scientific evidence. That this partnership
has not proved to be an altogether satisfying expe-
rience for men and women of science is abundantly
clear in the rich narrative he offers.
Joel Peter Eigen, Ph.D.
Franklin and Marshall College
Lancaster, PA 17603
first, do no harm: the cure
for medical malpractice
By Ira E. Williams. 197 pp. Mt. Pleasant, S.C., Corinthian Books,
2004. $24.95. ISBN 1-929175-39-6.
ome specialty areas of medicine are
again facing the problem of obtaining afford-
able liability insurance for medical negligence. Most
medical providers and liability insurers blame the
problem on plaintiffs lawyers and wayward juries,
whereas consumer groups and the plaintiffs law-
yers blame medical negligence and problems asso-
ciated with business cycles in the insurance indus-
try. Dr. Ira E. Williams, a board-certified oral and
maxillofacial surgeon and dental anesthesiologist,
has written a thoughtful book about medical negli-
gence and malpractice litigation. He has outlined a
plan to alleviate it. Ideas in the book deserve seri-
ous consideration.
There is a catch, however. Doctors will have to
consider the books premises, which will fly in the
face of the current attitudes of many doctors. For
instance, Williams writes, The great increase in
medical malpractice suits has not been caused by a
litigious society, rapacious attorneys, inadequate
liability caps or greedy patients. Negligent medical
care happens, and since almost no regulation of
medical negligence occurs within the profession,
the courts are the only recourse a harmed patient
has. Furthermore, he states, Tort reforms, past,
present, and future, will continue to tip the scales
of justice in favor of the doctor and against the pa-
tient. And, The AMA [American Medical Associ-
ation] Litigation Center is seeking to curb the effect
of expert witnesses who would try to upgrade a stan-
dard of care. First, Do No Harm, a reader-friendly
book, does not adequately document these prem-
ises. Nevertheless, various empirical-research stud-
ies published in reputable peer-reviewed journals
are consistent with the general theme of the
premises.
Williamss proposed solution for reducing med-
ical errors is to develop what he calls Individual Re-
sponsibility Peer Review, which places responsibili-
ty on the individual practitioner for self-regulation.
He asserts that a line can be drawn between an iat-
rogenic outcome and negligence. In the individual-
responsibility scheme, each medical practitioner
should create and utilize a current and acceptable
standard of care for each procedure within his or
her scope of practice. When bad outcomes occur,
a committee of peers who truly act as neutral re-
viewers should assess the steps that were taken in
the particular case and compare them with the
protocol. The scheme is likened to the checklists
that airplane pilots follow before starting the en-
gines.
Undoubtedly, detractors will say, justifiably, that
medical treatment is more complicated and varia-
ble than flying a plane and that the development of
a protocol for each medical treatment is impracti-
cal in terms of the time and details that would be
required. Questions will arise about how to imple-
ment true peer review and about the willingness of
doctors to sanction their colleagues. Most impor-
tant is the issue of how the protocols and peer-
review findings could be protected from use in legal
proceedings. These are some of the serious prob-
s
Downloaded from www.nejm.org on February 25, 2009 . Copyright 2005 Massachusetts Medical Society. All rights reserved.
