This article responds to proposals to admit statistical evidence from empirical studies of actual health care practices to prove prevailing health practice standards in malpractice litigation by arguing that the case for doing so has numerous weaknesses that advocates of admitting such data commonly ignore. A fundamental concern is that the standard of practice defense co-evolved with prevailing modes of proof and might have been different had proof through experts not allowed for an aspirational as well as an empirical element to reach the jury. The article also argues that generating reliable statistical evidence of standard medical practice can be extraordinarily difficult, is likely to disguise expert subjectivity rather than eliminate it and can be expected to replace one king of expert battle with another. Recognizing the weaknesses of current systems of expert proof, the article suggests a second best solution which would allow a limited role for statistical evidence and argues that the first best solution is to change the prevailing health practice standard defense to a competent physician defense that accommodates both empirical and other expert testimony.
Available at: http://works.bepress.com/lempert/1/