Florida’s Second District Court of Appeal Issues Important Decision on Inadmissibility of Physician Board Certification Exam Results
In medical malpractice litigation, the argument has increasingly been made that a physician’s board certification examination results, or more specifically, evidence of a physician’s failure to pass a board certification examination, are relevant to demonstrate the physician’s or health care facility’s negligence. However, a recent decision from Florida’s Second District Court of Appeal has held it is within a trial court’s discretion to exclude such evidence. See M.B. v. S.P., — So. 3d —-, 2013 WL 5663193 (Fla. 2d DCA Oct. 18, 2013), not final until released for publication (distinguishing Dorfman v. Schwabl, 777 So. 2d 427 (Fla. 5th DCA 2000)). The M.B. court relied mainly on foreign law and sharply disagrees with a decision from the Fifth District Court of Appeal on the issue. Should the M.B. decision become final, it would represent an important development in Florida law.
The M.B. court held that evidence of a physician’s repeated failures of a board certification examination was not relevant to the issue of the physician’s purported negligence. Id. at *2. Exclusively citing law from numerous foreign jurisdictions, the Court reasoned that a physician’s performance on an examination is not determinative of whether he or she met the standard of care for a patient on a specific occasion. Id. (citing Campbell v. Vinjamuri, 19 F.3d 1274 (8th Cir. 1994); Gipson v. Younes, 724 So. 2d 530 (Ala. Civ. App. 1998); Marsingill v. O’Malley, 58 P.3d 495 (Alaska 2002); Jackson v. Buchman, 996 S.W.2d 30 (Ark. 1999); Williams v. Mem’l Med. Ctr., Inc., 460 S.E.2d 558 (Ga. Ct. App. 1995), abrogated on other grounds recognized by Mullins v. Thompson, 553 S.E.2d 154 (Ga. 2001); Dorsey v. Nold, 765 A.2d 79 (Md. 2001); and Beis v. Dias, 859 S.W.2d 835 (Mo. Ct. App. 1993)).
The M.B. court further reasoned that the defendant physician was not testifying as an expert witness, and therefore any evidence of his board certification examination results remained inadmissible as there was no question as to his credibility as an expert. Id. Importantly, the defendant physician “never directly opined that he met the requisite standard of care nor did he opine within a reasonable degree of medical certainty as to the cause of M.B.’s injuries.” Id. at 3. In contrast, upon cross-examination, he disagreed that his actions were below the standard of care required. Id. The Court held that testimony related to a physician’s general matters of routine in how they relate to the treatment of the subject patient do not render the physician’s testimony expert. Id.
Finally, in holding that the defendant physician also had not opened the door to evidence of his board certification examination results, the M.B. court distinguished the Fifth District Court of Appeal’s decision in Dorfman v. Schwabl, calling the continued precedential effect of that decision into doubt. In particular, the Court criticized the Dorfman holding and supporting rationale that evidence of a defendant physician’s board certification examination results could be admissible if his counsel questioned the plaintiff’s expert’s board certification examination results. Id. Explaining that they were “not convinced that Dorfman fully and accurately analyzed the issue,” the Dorfman court distinguished between evidence of an expert witness’s board certification status and that of a defendant’s own board certification status:
The issue of whether [the defendant physician] opened the door involves determining whether inquiring about an expert witness’s board certification renders a defendant’s board certification status relevant . . . . First, Dorfman did not explain how it made the leap from inquiring about an expert’s lack of board certification to permitting an inquiry into a defendant’s lack of board certification. Clearly if a defendant presents his own expert and during direct examination opens the door to questioning about board certification, then that expert’s lack of board certification is a relevant topic for the plaintiff to explore.
Id. at *4 (emphasis in original) (internal citations omitted). As the M.B. court noted, Dorfman cited no authority whatsoever in support of its holding. Id. As such, continued reliance on Dorfman for this proposition is disputable.
Indeed, should the M.B. decision become final, it will likely serve as important new authority for the proposition that a defendant physician’s board certification examination results are irrelevant in medical malpractice actions and are, absent distinguishing circumstances, inadmissible.
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