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3 Med. L. Int'l 261 (1997-1998)
New and Old: A New Approach to the Evidence in Whitehouse v. Jordan

handle is hein.journals/medclint3 and id is 261 raw text is: Medical Law International, 1998, Vol. 3, pp. 261-272 0968-5332/98 $10 © 1998 A B Academic Publishers-Printed in Great Britain NEW AND OLD: A NEW APPROACH TO THE EVIDENCE IN WHITEHOUSE V. JORDAN? ANDREW FULTON PHILLIPS The Law School, University of Strathclyde ABSTRACT There has been considerable interest in leading academic journals about increasing the accuracy of the assessment of evidence. This paper considers a well-known and suitable medical negligence case in this context. 1. INTRODUCTION AND BACKGROUND There has been recent debate over making legal reasoning and decision-making more objective, by quantifying it, or even applying analyses such as Bayes' theorem.1 The latter in particular is a method borrowed from the discipline of statistics.2 Why should it be of any interest to lawyers, particularly the medical variety? One reason is that the technique provides one means (there are others3) of evaluating the strength of evidence in support of a proposition, which is potentially highly relevant to legal discourse. Another is that it encourages the quantification of adminicles of evidence, and their impact upon the proposition in question, be that guilt, innocence or civil liability. It may be argued that if this process can be done reliably, it would permit a more analytical and systematic - i.e. more rational - method of legal decision-making. The law already recognises that probabilities are of great importance,4 and this suggestion would formalise the process.5 Lastly, medical science has long used quantitative and epidemio- logical methods,6 and, given the overlap in subject-matter, medical law generally could thus be argued to be a prime candidate for the application of the new techniques. However attractive seeming in theory, applying techniques in- volving quantification to legal decision-making is controversial. In a recent well-known prosecution involving DNA evidence, the Court of Appeal enthusiastically threw out evidence based on Bayesian analysis,7 to the evident exasperation of a leading contributor to the

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