In Jackson v. Buchman, the plaintiff filed a medical malpractice action against her surgeon claiming he negligently injured her during gallbladder surgery. The plaintiff argued that Dr. Buchman negligently severed her bile ducts during the surgery. As a result, the plaintiff claimed that she had to have numerous corrective surgeries. Dr. Buchman argued that one of the risks associated with gallbladder surgery is that a patient’s bile ducts can be damaged or cut. Dr. Buchman also claimed that the plaintiff had abnormal anatomy in the area of her gallbladder.
During the course of discovery, the plaintiff learned that Dr. Buchman was not board certified at the time he performed the surgery. Dr. Buchman passed the written portion of the board exam on his second or third try, but failed to pass the oral exam after three attempts. As a result, he was no longer eligible to take the exam without further training. However, the state of Arkansas did not require Dr. Buchman to become board certified in order to practice medicine.
Prior to trial, Dr. Buchman’s counsel filed a motion to prohibit the plaintiff’s attorney from eliciting testimony that he was not board certified by the American College of Surgeons. In the motion, his counsel argued that such evidence would be prejudicial because the plaintiff would be likely to use the information to insinuate that Dr. Buchman failed to meet the standard of care. The plaintiff argued that the evidence was relevant to show that Dr. Buchman lacked the level of skill and learning possessed by members of his profession, and that it went to the issue of his reputation as a surgeon. The trial court granted Dr. Buchman’s motion, finding that this type evidence would convolute the issues before the jury.
During the trial, the plaintiff attempted to admit evidence of Dr. Buchman’s failure to become board certified as part of his cross examination. The plaintiff argued that this evidence was admissible to impeach Dr. Buchman’s credibility as an expert. The trial court would not allow the plaintiff to pursue this line of questioning. The jury returned a unanimous verdict in favor of Dr. Buchman.
On appeal, the plaintiff argued that it was prejudicial error for the trial court to exclude evidence that Dr. Buchman was not board certified. The plaintiff argued that this evidence was admissible to show Dr. Buchman’s lack of competence as a surgeon, to rebut testimony regarding Dr. Buchman’s reputation as a surgeon, and to impeach Dr. Buchman’s credibility as his own expert witness.
In considering this issue, the Supreme Court of Arkansas turned to the other jurisdictions for guidance. Based upon a review of the case law, the Arkansas Court found that the majority of appellate courts defer to the trial judge to decide this issue. Therefore, unless a trial judge abuses their discretion when ruling on whether this type of evidence is admissible, the appeals courts generally uphold the lower court’s decisions. Although there were appellate decisions upholding a trial court’s decision to admit evidence that a defendant physician was not board certified, these decisions did not allow the plaintiff to present evidence that the physician actually failed the examination. In fact, the Supreme Court of Arkansas found only one South Carolina case in which the trial court’s decision to allow the plaintiff to present evidence that the defendant physician failed the board exam was upheld on appeal.
The Supreme Court of Arkansas agreed with the majority of jurisdictions that a physician’s performance on a written or oral examination is not determinative of their ability to meet with the standard of care required on a specific occasion. Although a physician’s performance on a board certifying exam may reflect their overall knowledge of a specific medical specialty, it would not necessarily reflect their knowledge of the specific activity at issue in a medical malpractice case. Therefore, the Court upheld the trial court’s decision not to admit evidence that Dr. Buchman failed the board exam.
However, the Supreme Court of Arkansas held that evidence of a physician’s lack of board certification may be used to impeach a physician’s credibility as an expert witness. Even though the Supreme Court of Arkansas held it was error for the trial court to prevent the plaintiff from cross examining Dr. Buchman as an expert regarding whether he was board certified, the Court determined that the error was not prejudicial to the plaintiff. In reviewing the trial court record, the Supreme Court of Arkansas noted that one of physicians called by the plaintiff testified that Dr. Buchman complied with the standard of care. This witness also testified that whether or not Dr. Buchman was board certified had no bearing on his opinion that Dr. Buchman complied with the standard of care. As a result, the Supreme Court of Arkansas held that Dr. Buchman’s lack of board certification was not a material issue for the jury to consider, and the jury’s verdict was upheld.
In light of the Jackson decision and the majority of the case law from other jurisdictions, it appears that evidence that a defendant physician failed their board examination is generally not admissible as evidence of negligence. However, evidence that a defendant physician is not board certified may be admissible to cross examine the defendant physician if they offer expert opinion testimony at trial. Although this appears to be the general trend in the majority of jurisdictions, a trial judge is given broad discretion to decide these types of evidentiary issues on a case by case basis. In making these types of rulings, trial judges must consider whether the probative value of the evidence outweighs the potential prejudicial effect.
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