Failing the ABO examination: Admissible evidence?

Okay, you have been sued for malpractice. Obviously, when you are called to testify, part of your testimony will pertain to your educational and professional background. You took the ABO written examination and failed it—twice. When you went for your oral examination, you failed that, too. Suppose, on the other hand, that you never took the examination. In either scenario, you are not board certified. Can either of these pieces of information be elicited during your testimony? Gipson v Younes , 724 So.2d 530 (Ala, 1998) provides us the answers to these questions.

In that case, the plaintiff went to the defendant for pain management. The doctor performed a cervical block that unfortunately resulted in a spinal cord injury with secondary partial paralysis. During the trial, the defendants brought a motion in limine (in chambers so that the jury wasn’t privy to the discussion) to exclude any testimony that the defendant had failed the medical board certification examinations in both anesthesiology and pain management twice. The judge ruled that “you will not be able to bring out that he failed the test, but you will be able to elicit from him, if you stay closely in line with what I am about to say, that he is not a board certified anesthesiologist. I am afraid that in the word ‘failure,’ the prejudicial value far outweighs the probative value. I’m afraid that the jury could try the whole case based on the word ‘failure’; they could connote the word ‘failure’ with negligence.”

The trial testimony went as follows.

  • Q (by counsel for the Gipsons) Would you tell the ladies and gentlemen of the jury what board certification is?

  • A (by Dr Younes) Board certification is a classification of a practitioner in a specialty in medicine who serves as a consultant in that specialty.

  • Q What is the American Board of Anesthesiology?

  • A The American Board of Anesthesiology is a body which gives an examination and provides the public with consultants in that specialty.

  • Q It is a national organization, is it not?

  • A I believe so.

  • Q And in order to be board certified, do you have to pass a national examination?

  • A Yes.

  • Q Is there a board certification process in the specialty of anesthesiology?

  • A Yes.

  • Q If you pass that, you become a member of the American Board of Anesthesiology?

  • A Yes, sir.

  • Q Are you board certified in anesthesiology, Dr Younes?

  • A No.

  • Q Are you a member of the American Board of Anesthesiology?

  • A No.

  • Q Are you a member of the American Academy of Anesthesiology?

  • A No.

  • Q In addition to board certification in anesthesiology, there is a board certification in pain management, is there not?

  • A It is a subcertification of that specialty.

  • Q Are you board certified in pain management?

  • A No.

  • Q Again, in order to be board certified in pain management, would you have to pass a national examination?

  • A Yes.

The questioning was extremely artful. The defendant was never asked whether he took the examination, or whether, if he took it, he had passed it. The unasked questions and their unspoken responses were left to the imagination of the jury. It was enough to elicit that, to become board certified, one had to take and pass a national examination. Admitting that you are not board certified means that either you took the examination and failed, or you never took it.

The appellate court, in dealing with this case of first impression, looked to how other states have ruled on this issue. Most have held that “a physician’s inability to pass a medical board certification examination 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 the patient.” But, and in law there is always a but, when a physician testifies as an expert, whether or not he is a party to the case, like any other expert, he can be questioned about his credentials, including his board certification status, since this is deemed relevant to his credibility as an expert. Rule 403 of the Alabama Rules of Evidence (patterned after the Federal Rules of Evidence) holds that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The trial court is granted broad discretion regarding this issue, and its decision will not be overturned unless this discretion were found to have been abused in some fashion. Stated another way, certain testimony will not be allowed if its probative value is outweighed by its prejudicial effect. Prejudice rises to the level of unfairness if it has a tendency to suggest to the jury an improper basis on which it can fashion its decision.

Although the appellate court upheld the trial court’s decision in favor of the defendant’s motion to exclude the board-certification testimony, in a dissenting opinion, it was stated that the defendant:

[w]as allowed to testify extensively as to his background, including his education, experience, and honors. In particular, Younes testified in great detail as to his training and experience in the fields of anesthesiology and pain management. He established himself as an expert witness, with apparently impeccable credentials. In any other situation, Younes would have been cross-examined regarding his having twice failed the board examinations. However, under the trial court’s ruling, Gipson was robbed of the opportunity to challenge Younes’s credibility as an expert, simply because he was also the defendant. The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. This evidence was intended to prejudice, and would have prejudiced, Younes’s credibility as an expert. The trial court could have used a limiting instruction to prevent the jury from misusing this evidence in relation to the question of his alleged negligence. I acknowledge that the trial court’s determination regarding the admissibility of evidence rests within its sound discretion; however, I believe that this discretion was abused in this instance.

Commentary

So, if you are being sued, it is probably fair game to elicit whether you are board certified. No more, no less. As Sergeant Joe Friday from the old Dragnet days used to say, “Just the facts, ma’am, just the facts.” However, if you are functioning as an expert, a criterion that goes to your recognition by the court as an expert is whether you are board certified; if you are not certified, the reason that you aren’t generally becomes fair game. Exposing such information to impeach an expert’s credibility is also allowable. The bottom line is that testimony regarding one’s failing a board certification examination is generally not admissible evidence . . . except when it is.

Obviously, those not in the field of dentistry, like our patients, want to know why 1 orthodontist would bother to become board certified, whereas another chose not to. The general public wants to know whether there is a difference between the doctors in terms of their skill, knowledge, expertise, and experience. Most rank and file orthodontists are not attending doctors at hospitals and don’t have to be board certified for admitting privileges. To become a participating provider regarding third-party payers, most of the time they merely require that one has successfully completed an accredited specialty training program; board certification is not a requirement. Our own professional organizations, except for College of Diplomates of the American Board of Orthodontics, don’t require board certification status for membership. Okay, the Commission on Dental Accreditation requires board certification for those desiring to be program directors, but there are only about 65 of those positions throughout all of North America. Until about 10 years ago, only about a quarter of all orthodontists were board certified. Although the percentage is higher now, it’s still not the standard in our specialty. When you look at it that way, one must ask, “okay, so what is the big deal about whether one is certified?” Other than to make a juror or prospective patient think that the board certified practitioner has more skill, knowledge, expertise, and experience, and every board certified diplomate knows that he or she cannot even imply that certification means a “cut above,” the question must be, “if we don’t need it for anything, why have it, why do it, why, why, why?”

I know why I did it. I believe that if you are going to hang out your shingle as a specialist, you should take and pass the boards—nothing more, nothing less. It really is about time that we made the status of board certified mean something. I don’t know whether I’m smart enough to define exactly what that something is, but we should either make it stand for something, require it for something, or use it for purposes of differentiation . . . SOMETHING. If not, let’s stop confusing those we serve because some of us are certified and others are not.

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Apr 10, 2017 | Posted by in Orthodontics | Comments Off on Failing the ABO examination: Admissible evidence?
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