PROFESSIONALS UNDER FIRE: THE COURTROOM RHETORIC OF ESTABLISHING AND CHALLENGING THE CREDIBILITY OF EXPERT WITNESSES IN THE MEDICAL MALPRACTICE SUIT

DAWN DENISE MCLARIO, Purdue University

Abstract

At one time in our society, the family doctor was the beloved friend and confidante whose professional judgment was trusted implicitly. Suing one's personal physician was nearly as unthinkable as suing one's clergyman. Recently, however, the pendulum of public opinion has begun to swing in a new direction. Increasingly, professionals are coming under fire in a Post-Watergate society where people have become skeptical of all professions and where scandals have received wide and prolonged scrutiny. The once-revered physician has not escaped these trends unscathed. Within the past ten years, the number of medical malpractice claims has skyrocketed along with the average amount awarded to plaintiffs for their injuries. Jurors who decide medical malpractice suits have been posed with a rather perplexing rhetorical dilemma. Nearly every medical malpractice suit that is tried requires the testimony of expert witnesses who will testify on behalf of both plaintiff and defendant. Since the medical opinions expressed by these experts will inevitably vary (and even conflict), the validity of each opinion rests heavily on the credibility source. When presented with dozens of medical doctors whose testimony often conflicts, how are jurors likely to determine the weight that each expert's testimony should receive? Moreover, what dimensions of credibility and argumentative strategies are attorneys likely to tap to aid the jury in making such decisions? To answer these questions, this study has analyzed the testimony of ten medical experts, whose testimony is contained in the transcripts of Scaria v. St. Paul Fire and Marine Insurance Company, a classic Wisconsin case that established new case law. Toulminian analysis and Credibility analysis (which applies the dimensions of source credibility listed by Roderick P. Hart, Gustav Friedrich and William Brooks in their book, Public Communication) have also been used to: (1) reveal the dimensions of credibility that are likely to be most relevant in each part of the medical malpractice trial; and to (2) discover the argumentative patterns and strategies used to establish and challenge those dimensions.

Degree

Ph.D.

Subject Area

Communication|Law

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