It happens all the time in medical-malpractice litigation. A defendant doctor who is not board certified seeks to bolster his/her credibility by providing testimony to the jury about his/her credentials, accomplishments and awards. At the same time, the doctor cries foul when the plaintiff patient wants the jury to know that the doctor is not board certified.
A new Maryland Court of Special Appeals decision appears to allow the doctor to hide his lack of board certification from the jury in most circumstances.
First, let’s take a step back and talk about board certification. A doctor is not required to be board certified to practice medicine. Board certification means that the doctor has taken the extra step of demonstrating knowledge and proficiency in his/her medical field by passing an oral/written test. While board certification is not required, many hospitals and large medical institutions require board certification for doctors who practice there.
When a doctor who is not board certified is sued for malpractice, the patient naturally wants to introduce the lack of certification to show the doctor has not taken the extra steps. The doctor, on the other hand, naturally seeks to keep that from the jury since it is not a requirement to practice medicine. One could argue that both board certification and the doctor’s credentials are not relevant to a particular case. Why? Because the most highly-qualified doctor can still make a mistake. Likewise, the most minimally-qualified doctor (lacking board certification) can provide excellent care. Since a medical-malpractice case is about whether the doctor erred in that particular instance, these factors are irrelevant to the jury’s decision.
But that’s not reality. Ordinary people (i.e. jurors) often consider people’s credentials, or lack thereof, in determining whether they made a mistake. Thus, most courts have reached a judicial truce: they prevent the patient from introducing the doctor’s lack of board certification as long as the doctor does not seek to bolster his credibility by overly extolling his accomplishments. While these makes neither side happy, it keeps the playing field level.
So what happens if the doctor does overly extol his virtues in front of the jury and breaks the truce — in the legal word, we call it “opening the door.” Shouldn’t the patient be able to blunt that by introducing his lack of board certification to the jury? That is what the trial court allowed inSchneider v. Little, 2012 Md. LEXIS 58 (Md. Ct. App. June 1, 2012), a recent Maryland case that resulted in a $3.5 million verdict for the patient.
On appeal, the doctor argued (among many other things) that the trial court judge should not have allowed the patient to introduce the lack of board certification. He argued that while he addressed his credentials at trial, he did not push it so far as to “open the door.” The Maryland Court of Special Appeals (its intermediate appeals court) agreed with the doctor and reversed the patient’s victory.
The Court agreed that if the doctor had “opened the door,” his lack of board certification might become admissible. It found, however, that the doctor had not opened the door. Rather, he had merely “provided typical background information.” So what information did the doctor provide the jury?
- He testified regarding his medical training and experience;
- That he was on the Board of Directors of the health system;
- That he had taught medical students at Johns Hopkins;
- That he had authored publications; and
- That he was a member of various professional organizations, including organizations to poor patients.
The appeals court found that this was “typical background information.” One must ask, however: isn’t board certification also “typical background information?” Indeed, if the situation were reversed and the doctor was board certified, would the appeals court have found it to be reversible error in favor of the patient if the doctor’s board certification was disclosed? The answer is almost certainly no.
Would juries be better served by having all of the information? I leave that decision to the reader.