Lack of Board Certification Can’t be Held Against A Doctor In Medical Malpractice Cases

Published on Oct 13, 2013 at 3:04 pm in General Blogs.

Board certification is an important credential for doctors. When searching for a physician, conventional wisdom is to find a medical practitioner who is board-certified. Many believe that it is a sign of higher medical competence; but, what happens when an attorney goes overboard in making sure that the qualifications of doctor who is not board-certified are given to the jury in a medical malpractice case?

In Little v. Schneider, defense counsel went into great detail during the trial describing Dr. Roger Schneider’s credentials and qualifications. Schneider was not board certified.

The Court of Appeals ruled that when a physician is testifying as a fact witness and exceeds the reasonable limits of witness accreditation, he puts his credentials at issue and the trial judge does not abuse his discretion in ruling that the physician opened the door for the introduction of evidence of the doctor’s lack of board certification.

A doctor who testifies on what he did and what he observed in his actual treatment of the patient is called a fact witness. A physician who gives opinions based upon facts and materials furnished during the course of the trial is called an expert witness.

The ruling came from Maryland’s top court and stemmed from a medical malpractice case involving a woman who was paralyzed from the waist down after surgery to unblock her aorta went awry.

Victoria Little sought treatment at Vascular Surgery Associates after suffering pain in her thighs and buttocks. It turned out that the pain came from a blocked aorta. Little was scheduled for an aortobifemoral bypass surgery to be performed by Drs. Schneider and Gonze. The purpose of the surgery was to remove the buildup of plaque in the aorta. But, during surgery, the doctors had to switch to another type of bypass when the sutures did not hold, causing Little to lose massive amounts of blood and to suffer permanent paralysis.

Little sued the doctors for negligence. The Circuit Court for Harford County jury awarded her $224,398 for past medical expenses, $2,000,000 for future medical expenses and $1,333,000 for pain and suffering. The award for pain and suffering was reduced $650,000 in accordance with the cap on non-economic damages. The total judgment was $2.8 million dollars.

Dr. Schneider appealed. He challenged two evidentiary rulings by the trial court — one of them allowing Little to question Schneider about his lack of board certification and the other, a ruling excluding from evidence a chest CAT scan which allegedly showed Little’s aorta. Dr. Gonze settled before the appeal was filed.

The Court of Special Appeals reversed on both issues, ruling that a doctor’s lack of board certification is not relevant to the issue of whether the physician complied with the standard of care in a patient’s treatment. As a result, the appellate court overturned the jury’s verdict.

But, when the case went to the Court of Appeals, the court reversed the intermediate court and reinstated the $2.8 million jury verdict.

Schneider argued that the trial court should not have allowed Little to use Schneider’s lack of board certification during the trial, including during closing arguments.

The state’s top court disagreed. It was reasonable for the trial court to conclude that, by going outside the reasonable limits of accreditation, Schneider placed at issue the question of his excellence in the field of vascular surgery. The trial judge did not abuse his discretion in allowing Little to ask Schneider about his lack of board certification “in order to counter Schneider’s effort to cloak himself as the paragon of vascular surgeon,” the Court of Appeals said.

The court also noted that although it had affirmed the use of Schneider’s lack of board certification, the decision should not be read so as to allow the use of negative, irrelevant facts about a doctor.

Baltimore, Md.-based Belsky, Weinberg & Horowitz has been representing the victims of negligence, personal injury and medical malpractice for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.



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