EMAIL TO A FRIEND COMMENT

 

Lack of Board Certification Admissible; Unrelated CAT Scan Inadmissible


A woman presented with pain in her thighs and buttocks. She was diagnosed with a blocked aorta. She underwent aortobifemoral bypass surgery, a procedure to remove the buildup of plaque in the aorta and thereby restore appropriate blood flow to the pelvis and lower extremities. The procedure is performed by cutting the abdominal aorta below the renal arteries and then using a graft to connect the aorta to the femoral artery. The surgeon determines the proper size of the graft by visually inspecting the aorta during surgery.

 

The surgeons who performed the woman’s surgery chose to use a 16 x 8 mm graft. The suture used to connect the tissue to the graft, however, would not hold, causing her to lose a large amount of blood. The surgeons tried to complete the surgery several times, but the sutures continued to open up, making the woman lose more blood with each attempt. Unable to complete the aortobifemoral bypass, the surgeons converted the surgery into an axillobifemoral bypass.

 

In an axillobifemoral bypass, the bypass is performed at the axillary artery, which is then reconnected with the use of a graft to the femoral artery. The surgeons were able to complete the axillobifemoral bypass with the use of an 8 mm graft. But, by then, the woman had lost 5100 ccs of blood—almost her entire volume of blood. As a result, there were severe surgical complications: the woman became permanently paralyzed from the waist down and suffered temporary damage to her kidneys, liver, heart, lungs, and spinal cord.

 

The woman sued the surgeons for medical malpractice. At trial, the woman's primary theory of negligence was based on an alleged mismatch in the size of her aorta and the size of the graft used in the initial attempt at completing the aortobifemoral bypass. The woman contended that her aorta was 7–8 mm, and thus, the 16 x 8 mm graft was much too large. One surgeon maintained that the woman's aorta was 14 mm, and thus, the 16 x 8 mm graft was proper. After a jury trial, the Harford County Circuit Court entered judgment on verdict in favor of the patient. One physician appealed, challenging two evidentiary rulings by the trial court: (1) allowing the woman to question the surgeon about his lack of board certification and (2) excluding from evidence a chest CAT scan, from an unrelated hospital visit, which allegedly showed the size of the woman's aorta. The Court of Special Appeals reversed on both issues and remanded.

 

The Court of Appeals of Maryland reversed the judgment of the Court of Special Appeals and remanded the case with directions. First, the court held that the surgeon's lack of board certification in vascular surgery was not relevant to whether he breached the standard of care. Second, the court held that the trial court, which had granted the surgeon's motion in limine to exclude his lack of board certification in vascular surgery, did not abuse its discretion by allowing the woman, who had called the surgeon as an adverse fact witness, to ask the surgeon about board certification on re-direct examination after defense counsel attempted on cross-examination to paint a picture of the surgeon as the paragon of vascular surgeons. Third, the court held that the surgeon could not testify as a fact witness regarding a chest CAT scan from an unrelated procedure that purportedly would have shown the actual size of the woman's abdominal aorta, in the absence of evidence that the surgeon ever relied on the CAT scan or even knew of its existence when he was treating the woman.

 

The defendant surgeon's lack of board certification in vascular surgery was not relevant to whether he breached standard of care. That the surgeon was not board certified makes it no more or less probable that he breached the standard of care in his treatment of the woman.

 

The trial court granted the surgeon's motion in limine to exclude his lack of board certification in vascular surgery. On cross-examination the defense counsel attempted to paint a picture of the surgeon as the paragon of vascular surgeons. On re-direct examination the woman called the surgeon as an adverse fact witness to ask him about whether he was board certified in vascular surgery. The surgeon objected. The woman argued that the surgeon put his qualifications at issue. In other words, he opened the door to the woman's use of the lack of board certification evidence. The Texas Supreme Court held that the trial court did not abuse its discretion by allowing the woman to ask the surgeon about his board certification.

 

The court explained that the “opening the door” doctrine is a rule of expanded relevancy that authorizes admitting evidence which otherwise would have been irrelevant in order to respond to admissible evidence which generates an issue, or to respond to inadmissible evidence admitted by the court over objection. The court held that the trial court could reasonably conclude that the defense counsel had gone outside the reasonable limits of accreditation of a fact witness. The “opening the door” doctrine allows for the introduction of otherwise inadmissible evidence only to the extent necessary to remove any unfair prejudice that might have ensued from the original evidence.

 

The court held that the trial judge did not abuse his discretion in prohibiting the surgeon from testifying about a CAT scan that he had never used in his treatment of the woman. The surgeon could not testify as a fact witness regarding a chest CAT scan from an unrelated procedure that purportedly would have shown the actual size of the woman's aorta, in absence of evidence that the surgeon ever relied on the CAT scan or even knew of its existence when he was treating the woman. Fact witnesses must have personal knowledge of the matters to which they testify. The court noted that the trial judge specifically inquired into the surgeon's use of the CAT scan and found that the surgeon never reviewed the CAT scan, never considered the CAT scan, and never relied upon the CAT scan. When a defendant physician testifies as a fact witness in a medical malpractice action, the physician's testimony must be limited to a recitation of what he observed and what he did on the occasion of the patient's visit.

As a result, the trial judge did not abuse his discretion in either allowing discussion of the surgeon’s lack of board certification or excluding the CAT scan.

 

See: Little v. Schneider, 2013 WL 4482446 (Md., August 22, 2013) (not designated for publication).

 

See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation

 

 

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