Failure to Pass Board Certification Exams Is Irrelevant
posted on October 4th, 2009 in Experts by clintSuppose you retained an expert in a medical malpractice case who reveals in his discovery deposition that he failed the test for board certification. In fact, you may discover that your expert failed the board certification exam multiple times. Whether your expert is board certified has its own ramifications too numerous to discuss here. However, you are concerned that the defendant will argue to the jury that your expert failed the board certification exam multiple times so he must not be too good of an “expert” after all. The defendant is entitled to prove that your expert lacks board certification. However, there is a way to exclude evidence that your expert failed the board certification exam.
In White v. Premier Medical Group, 254 S.W.3d 411 (Tenn.Ct.App.2007), the children of a patient brought a medical malpractice action against the doctor, his medical group, and several hospital entities, alleging that her death were caused by the negligent overdose of a drug. The plaintiff lost the case at trial and appealed. On appeal, plaintiffs contended that the trial court erred by granting the defendant doctor’s motion in limine prohibiting the plaintiffs from inquiring into the doctor’s previous failed efforts in the examination for board certification in his specialty. Although the trial court prohibited plaintiffs from addressing the fact that the doctor had taken but failed to pass the requisite certification tests, the plaintiffs were allowed to introduce the fact that he was not board certified. The Court of appeals affirmed the trial court and stated:
It may be relevant whether a physician is or is not board certified in a specialty; however, we are unable to find any significance to the fact that a physician attempted to obtain board certification or for that matter never made the attempt. White, 254 S.W.3d at 421.
In one stoke of the pen, the Court of Appeals made the failure to pass a board certification exam inadmissible as a matter of law. Since White, I have never seen nor heard of a litigant in a medical malpractice case who successfully convinced a trial court that an expert’s failure to pass a board certification exam is admissible.
There is an exception to White that you need to know when facing this issue. Make sure that your expert does not lie about his failure to pass the exam. This can change everything. In Sneed v. Stovall, 22 S.W.3d 277 (Tenn.Ct.App.1999), the patient filed a motion in limine in a medical malpractice case to prohibit the defendants from making any disclosure of disciplinary action taken against the patient’s expert witness, Dr. Swan. During Dr. Swan’s deposition, defense counsel examined Dr. Swan about whether he had ever been the subject of any disciplinary proceedings. Dr. Swan responded that he had not. Several months later, defense counsel learned that Dr. Swan had been the subject of investigations and hearings before the Kentucky State Board of Medical Licensure (KSBML). The allegation before the KSBML was that Dr. Swan had engaged in inappropriate sexual behavior with some of his patients. The trial court denied the plaintiff’s motion in limine, and the Court of Appeals affirmed. The Court of Appeals found under Rule 608 [untruthfulness] that Dr. Swan’s conduct could be construed to show disdain for a physician’s obligation to practice the profession on the highest ethical plane with an ongoing deception during the continuance of the activities, i.e., credibility. The lesson from White and Sneed is clear—honesty is always the best policy.