M.B. v. S.P.

• Citation: 124 So.3d 358
• Decision Date: 18 October 2013
• Docket Number: No. 2D12–3136.,2D12–3136.
• Parties: M.B., Appellant, v. S.P., M.D., and CDMG, P.A., Appellees.
• Court: Court of Appeal of Florida (US)

124 So.3d 358

M.B., Appellant,

v.S.P., M.D., and CDMG, P.A., Appellees.

No. 2D12–3136.

District Court of Appeal of Florida,

Second District.

Oct. 18, 2013.

William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellant.

Mark Hicks and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellees.

MORRIS, Judge.

M.B. appeals a final judgment entered in favor of S.P. and CDMG in her medical malpractice action.¹ M.B. contends that the trial court erred by failing to allow her to introduce evidence that S.P. had repeatedly failed the board certification exam and by failing to disqualify itself and/or grant a mistrial after M.B. discovered that the trial judge wrote a derogatory note about M.B. We affirm on the issue of S.P.'s board certification failures because such evidence was not relevant. However, we agree that M.B. is entitled to a new trial due to the trial judge's conduct below.

I. Background

In June 2009, M.B. was referred to S.P. after complaining to her primary care physician of unusual cramping and pain and irregular bleeding. S.P. determined that M.B. needed a hysterectomy and ultimately performed a laparoscopically assisted vaginal hysterectomy in July 2009. M.B. returned to the hospital five days after the procedure complaining of acute abdominal pain and discomfort. Tests revealed M.B. had a blocked ureter. Surgery could not be immediately performed due to inflammation. As a result, M.B. had to have a nephrostomy tube inserted, which allowed for urine to drain into an external collection bag, thereby bypassing the damaged ureter. M.B. had to wear the nephrostomy tube for a three-month period, and during that time, she suffered severe diarrhea, nausea, and vomiting.² Eventually, M.B.'s damaged ureter was successfully repaired. However, M.B. testified at trial that she still suffers from dull pain, has increased frequency of urination, and wets herself every night.

There was no dispute that the injury to M.B.'s ureter was a result of the hysterectomy. The issue of negligence was not premised on the fact that M.B.'s ureter was injured during the surgery. Rather, the issue was based on whether S.P.'s failure to conduct one of several tests postoperatively to check the integrity of M.B.'s ureter, over and above S.P.'s standard visual inspection, constituted negligence. In her complaint, M.B. alleged that she suffered an injury during the hysterectomy as a result of S.P.'s negligence. She further alleged that CDMG, as S.P.'s employer, was vicariously liable for S.P.'s negligent acts.

II. The issue of S.P.'s repeated board certification exam failures

Prior to trial, S.P. filed a motion in limine seeking to prohibit testimony of his repeated failures to pass the board certification exam. The motion was granted. During the trial, M.B. proffered testimony from S.P. acknowledging that it took him seven years to pass the exam and that he passed the written portion of the exam on the fourth try and the oral portion on the third try. ³ Subsequently, S.P. presented expert testimony from two physicians and elicited from both witnesses that they were board certified by the American Board of Obstetrics and Gynecology. After each witness, M.B. renewed her motion to admit evidence of S.P.'s board certification exam history. M.B. also proffered testimony from a deposition of one of S.P.'s expert witnesses wherein the physician opined that a repeated failure to pass a board certification exam could be important to him in determining whether the operating physician was competent. However, the trial court denied the motions, and when M.B. attempted to renew the motion to admit the evidence the following day, the trial court refused to consider it, despite M.B.'s assertion that she had case law to support her position.

We review a trial court's decision to exclude evidence for abuse of discretion. Dessaure v. State, 891 So.2d 455, 466 (Fla.2004).

The trial court was within its discretion in granting S.P.'s motion in limine prior to trial. Evidence of S.P.'s repeated failures of the board certification exam was not relevant to the issue of his purported negligence in performing the hysterectomy. See, e.g., Campbell v. Vinjamuri, 19 F.3d 1274, 1276–77 (8th Cir.1994) (“[A] person's performance on a written or oral examination is not determinative of one's ability to meet the standard of care required on a specific occasion.”); Gipson v. Younes, 724 So.2d 530, 532 (Ala.Civ.App.1998) (holding that the failure of a physician to pass a test “is irrelevant to the issue of his negligence in a malpractice case” (citations omitted)); Marsingill v. O'Malley, 58 P.3d 495, 501 (Alaska 2002) (“[C]ourts generally disfavor admission of evidence showing that a defendant failed board certification tests when that evidence is affirmatively offered to prove lack of professional knowledge or skill.”); Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30, 34 (1999) (“[T]he ability or inability to pass examinations has no bearing on the issue of one's ability to meet the appropriate standard of care on a specific occasion.”); Williams v. Mem'l Med. Ctr., Inc., 218 Ga.App. 107, 460 S.E.2d 558, 560 (1995) (agreeing that the failure of a physician to pass board certification and licensure exams “has little if any relevance to the issue of whether the physician complied with the standard of care required in his treatment in a given case” (citation omitted)), abrogated on other grounds recognized by Mullins v. Thompson, 274 Ga. 366, 553 S.E.2d 154 (2001); Dorsey v. Nold, 362 Md. 241, 765 A.2d 79, 84 (2001) (“[T]he general rule is that ‘a physician's inability to pass a medical board certification exam has little, if any, relevance to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient.’ ” (quoting Gipson, 724 So.2d at 531–32)); Beis v. Dias, 859 S.W.2d 835, 839 (Mo.Ct.App.1993) (“A physician's inability to pass certification and licensure examinations does not make probable his negligent performance of a specific procedure.”).

But M.B. argues here that because S.P. testified as an expert, the issue of his repeated failures of the board certification exam was relevant to his credibility as an expert. And if S.P. had, in fact, testified as an expert, case law indicates that such evidence would be relevant and admissible. See, e.g., Marsingill, 58 P.3d at 501 (noting that such evidence could be brought out in cross-examination or rebuttal to counteract “affirmative defense evidence introduced to show a special degree of skill, knowledge, or relevant expertise”); Jackson, 996 S.W.2d at 35 (“Evidence of a physician's lack of board certification may be used to impeach the physician's credibility as an expert witness.”); Gipson, 724 So.2d at 532 (recognizing that where physician defendant testifies as an expert, the fact that he failed a board certification exam is relevant to his credibility); Babikian v. Mruz, 353 Ill.Dec. 831, 956 N.E.2d 959, 964 (Ill.App.Ct.2011) (recognizing that where a physician testified he met the standard of care in treating the plaintiff, evidence of his lack of board certification would have been admissible); Rockwood v. Singh, 258 Ill.App.3d 555, 196 Ill.Dec. 708, 630 N.E.2d 873, 875 (1993) (recognizing that where a physician testifies as an expert, “evidence as to his age, practice, and like matters relating to his qualifications as an expert is admissible”); McCray v. Shams, 224 Ill.App.3d 999, 167 Ill.Dec. 184, 587 N.E.2d 66, 69 (1992) (holding that where defendant physician testified that he regarded himself as a specialist in the relevant field and he testified about the examination, diagnosis, and treatment of the plaintiff and the reasons why he picked one treatment over another, the issue of his failure to pass board certification exam was relevant); Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867, 872–73 (App.1986) (holding that where physician was asked about separate licensure for specialty, she testified as to routine surgical and recovery room procedures in addition to the circumstances of the case, and she gave her opinion within a reasonable degree of medical certainty as to how the plaintiff was injured, the fact that she was not board certified related to her credibility as an expert witness); Dorsey, 765 A.2d at 84 (recognizing that a physician's failure to pass a board certification exam is relevant to his or her qualifications as an expert and is therefore admissible where the physician testifies as an expert).

However, in this case, S.P. could only be said to have provided limited expert testimony, if any. S.P. 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. Rather, during cross-examination, S.P. was asked whether he agreed his actions were below the standard of care required, and he responded that he disagreed with that assertion. In Campbell, the defendant physician provided an almost identical response, and the Eighth Circuit held that this response did not render evidence of the physician's repeated board certification failures relevant. 19 F.3d at 1277 n. 2. We agree with that reasoning. A physician's general testimony about his education, training, professional experience, and license to practice in the relevant state is very different from evidence about routine operating room procedures and opinions to a reasonable degree of medical certainty. See Rockwood, 196 Ill.Dec. 708, 630 N.E.2d at 875 (holding that where physician did not testify about routine operating room procedures or offer opinions to a reasonable degree of medical certainty, his testimony “was not used to show the standards of medical care associated with such surgery[ ] but[,] rather, was used to relate to the jury what occurred before, during, and after the surgery” and that...