Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Flunk your boards, get skewered in court?

Q: I'm board-certified in internal medicine, but I failed the exam on my first try. I passed it on my next attempt, and have been recertified. Now I'm being sued and the plaintiff wants to use this initial failure to portray me as a poor physician. Can he do this?

A: He can try, but it's likely the judge will rule that your unsuccessful first shot at the exam is irrelevant and shouldn't be revealed to a jury.

A pretrial motion by your attorney may be a good tactic to prevent the plaintiff from asking questions about test No. 1. The judge will weigh whether testimony about that test would legitimately aid the jury, or have a prejudicial effect by giving the failure more relevance than it merits.

Most courts have held that a physician's performance on a written or oral examination shouldn't be considered determinative of his ability and doesn't increase the likelihood that he departed from the applicable standard of care in treating a patient.

The salient issue is a physician's status at the time of treatment, not the number of times he took the test. For that reason, a doctor who has been sued should expect the court to take a harder line if he wasn't board-certified when the incident in question took place—especially if he serves as an expert witness in his own defense.

A fact witness is limited to the details of the treatment he provided (what he did for the patient and what he observed), whereas an expert witness can offer his opinions about the standard of care (what a reasonable physician in his specialty would have done in similar circumstances).

The board status of an expert witness has some bearing on his credibility—that is, it can indicate how much weight a jury should give his testimony—and therefore it is admissible at trial. So if a doctor testifies as an expert and he wasn't certified at the time of treatment, or at the time of trial, that could come out in front of a jury.

In some cases, the distinction between a fact witness and an expert isn't readily apparent. A medical diagnosis is a type of opinion, after all. In a recent Maryland case involving failure to diagnose a throat tumor, a medical examiner who hadn't passed his boards on the first try was scheduled to testify about the cause of death. The court reasoned that the ME would be testifying only about what he had observed, and not the standard of care. Therefore, he was permitted to expound on the autopsy report without being cross-examined about his certification history.

If you weren't board-certified at the time of treatment, your attorney may want to avoid mentioning the certification status of the plaintiff's experts. In another case, a defendant who'd failed the exam five times repeatedly volunteered to the jury that the plaintiff's expert had failed the exam. The defendant's own status was then ruled admissible, since he'd "opened the door" for such inquiry.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;8:96.