: Bioethicists have articulated an ideal of shared decision making between physician and patient, but in doing so the role of clinical uncertainty has not been adequately confronted. In the face of uncertainty about the patient's prognosis and the best course of treatment, many physicians revert to a model of nondisclosure and nondiscussion, thus closing off opportunities for shared decision making. Empirical studies suggest that physicians find it more difficult to adhere to norms of disclosure in situations where there is (...) substantial uncertainty. They may be concerned that acknowledging their own uncertainty will undermine patient trust and create additional confusion and anxiety for the patient. We argue, in contrast, that effective disclosure will protect patient trust in the long run and that patients can manage information about uncertainty. In situations where there is substantial uncertainty, extra vigilance is required to ensure that patients are given the tools and information they need to participate in cooperative decision making about their care. (shrink)

We currently live in a world of silent risks caused by invisible agents acting through mechanisms poorly understood. It is not surprising that the resulting harms have led to litigation. Playing a visible role in all these cases is the ‘causation problem’; plaintiffs face sometimes insurmountable hurdles in providing evidence for causation. However, the fact that mechanisms are hidden does not mean that one cannot have reliable evidence and information about them. In this paper I argue that the law has (...) taken an ill‐founded, skeptical stance towards statistical evidence for causation in toxic tort cases, making the task of plaintiffs unjustly difficult. I address two frequently cited skeptical claims about statistical evidence and argue that they are unfounded as applied in tort law. I conclude that the skeptical stance results from a failure to distinguish physical chances from epistemic probabilities, and that such a distinction is necessary if plaintiffs are to have a chance of prevailing. (shrink)

Attempts at quantification turn up in many areas within the modern courtroom, but nowhere more than in the realm of toxic tort law. Evidence, in these cases, is routinely presented in statistical form. The vagueness inherent in phrases such as 'balance of probabilities' and 'more likely than not' is reinterpreted to correspond to precise mathematical values. Standing alone these developments would not be a cause for great concern. But in practice courts and commentators have routinely mixed up incompatible quantities, leading (...) to grave injustice. I argue that these confusions result from an unjustified assumption of universal causal determinism. (shrink)

Attempts at quantification turn up in many areas within the modern courtroom, but nowhere more than in the realm of toxic tort law. Evidence, in these cases, is routinely presented in statistical form. The vagueness inherent in phrases such as 'balance of probabilities' and 'more likely than not' is reinterpreted to correspond to precise mathematical values. Standing alone these developments would not be a cause for great concern. But in practice courts and commentators have routinely mixed up incompatible quantities, leading (...) to grave injustice. I argue that these confusions result from an unjustified assumption of universal causal determinism. (shrink)

In the late 1970s, the U.S. Congress was debating a number of different proposals to provide monetary compensation to residents of Utah and Nevada who had been exposed to radioactive fallout from government nuclear weapons testing in the 1950s. Yet scientists and government officials expressed concern that such a program would end up compensating many people for cancers that were not caused by the fallout. Thus, after much debate, Congress directed the National Institutes of Health to produce a set of (...) statistical tables—the radioepidemiologic tables—to target compensation awards to “deserving” individuals. Advocates of the tables, notably Senator Orrin Hatch, argued that reliance on scientific data would provide compensation decisions with predictability and evenhandedness. Yet in the end, the effort to employ the tables failed. The substantial scientific uncertainties in the tables and in their application to individual claims failed to deliver the authority they promised. Additionally, the goal of fairness and objectivity could not be convincingly met because of persistent controversy and mistrust surrounding the government’s role in the study of health effects of low‐level radiation. (shrink)