In the recent case of Little v. Schneider (August 22, 2013), the Maryland Court of Appeals unanimously reinstated a $2.874 million verdict issued for a plaintiff by a Harford County, MD jury. The jury found that Dr. Schneider (acting as a specialist in vascular surgery) negligently used the wrong size graft in attempting to perform an arterial bypass. This allegedly caused massive bleeding, leaving Ms. Little permanently paralyzed.
During the trial, Plaintiff’s attorney introduced evidence that the defendant physician was not certified. The immediate appellate court (Maryland Court of Special Appeals) for this and other reasons overruled the jury's verdict and ordered a new trial.
The Maryland high court decided that while ordinarily the jury should not be advised as to whether the defendant physician is not board-certified, there are limits. The Court observed that the general rule in malpractice cases is to distinguish between appropriate examination of expert witnesses who provide opinions, and the examination of a fact witness (in this case the defendant physician) who merely testify “based solely on what she did and what she observed in her actual treatment of the patient.”
The reason behind this rule is that, generally, in a medical negligence suit, the defendant physician’s failure to pass a medical board certification exam (or in this case to even take the exam) has little relevance because “the fact of failure makes it neither more nor less probable that the physician complied with or departed from the applicable standard of care in the diagnosis or treatment of a particular patient for a particular condition.”
During the jury trial, the plaintiff called the treating physician, Dr. Schneider as an adverse witness in her own case. After the plaintiff’s attorney was finished examining Dr. Schneider, his own attorney, attempting to “bolster” his client’s qualifications “opened the door” to the plaintiff’s attorney attacking those qualifications with questions designed to inform the jury that Dr. Schneider was never board certified in vascular surgery, the specialty he was practicing when he injured the plaintiff.
According to the Court of Appeals opinion, Dr. Schneider's attorney bolstered his qualifications over eleven (11) pages of trial transcript.
Previously, plaintiff's attorney had been advised by the trial judge that he could not question Dr. Schneider about his lack of board certification in vascular surgery. After the extensive questions asked by Defendant’s attorney, Plaintiff's attorney again asked the trial judge for an opportunity to question Dr. Schneider about his lack of board certification in vascular surgeon. This time, the trial court reversed its earlier ruling.
The plaintiff claimed that the doctor could not “have it both ways: his accomplishments and great deeds were no more relevant than his lack of board certification.” The trial judge this time agreed, reversing his earlier ruling and allowing Ms. Little to inquire on the subject of Dr. Schneider’s lack of board certification in vascular surgery.
The Maryland High Court observed that since Dr. Schneider’s counsel attempted to paint a picture of Dr. Schneider as a “model of excellence in the field of vascular surgery and a great humanitarian, the trial judge became persuaded that he exceeded the basic background
information appropriate for accreditation of a fact witness.” Thus, the High Court ruled that “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 and “opened the door” to rebuttal inquiry on re-direct examination.” The Court further held: “The trial judge did not abuse his discretion in allowing Little to ask Dr. Schneider, on re-direct, about his lack of board certification in order to counter Schneider’s effort to cloak himself as the paragon of vascular surgeons.”
What can be taken away from this? Although the opinion may ultimately have little practical effect when trying most medical malpractice cases, it is an interesting analysis and cautionary tale of what can happen when an attorney takes a chance and “opens the door” a little wider than was wise, thus allowing unpleasant, damaging evidence to march through.