Bd Cert: Little v. Schneider 1

The Baltimore Medical Malpractice Lawyer Blog discusses issues in Maryland medical malpractice cases. In this post, I examine the issue of the admission into evidence of a defendant doctor’s lack of board certification. The case is Little v. Schneider, 434 Md. 150 (2013), a reported opinion by the then Court of Appeals of Maryland. The court addressed issues of fairness, witness accreditation, and the legal doctrine of “opening the door.” This blog post is Part 1 of the analysis of this case. Stay tuned for Part 2, where I will look into the court’s handling of the disputed CT scan evidence.

Factual Background to Evidence of Board Certification

In May 2007, the patient sought medical care at a vascular surgery practice. This was after experiencing persistent and severe pain in her thighs and buttocks. Medical evaluations revealed that a severely blocked aorta caused her symptoms. Medical providers scheduled her to undergo an aortobifemoral bypass surgery on July 16, 2007. This was to restore proper blood flow to her pelvis and lower extremities. The defendant doctor, a vascular surgeon and a colleague would perform the procedure.

During an aortobifemoral bypass, surgeons cut the abdominal aorta below the renal arteries. They utilize a synthetic graft to reconnect the aorta to the femoral artery. The surgeon must determine the proper size of the graft intraoperatively through visual inspection of the patient’s aorta.

A critical error allegedly occurred during the operation. The surgical team elected to utilize a 16×8 mm graft. However, the sutures used to attach the patient’s natural tissue to the synthetic graft failed to hold. This caused massive, immediate hemorrhaging. The doctors attempted to secure the bypass multiple times. However, with each subsequent attempt, the sutures ripped open, causing the patient to lose more blood.

Failed Graft

The surgeons relaized that the primary aortobifemoral bypass was failing. They aborted the procedure. Then they converted it into an emergency axillobifemoral bypass. This connects the axillary artery to the femoral artery, and they used a much smaller 8 mm graft.

Though they successfully completed the alternative bypass, the damage was already done. By the time the hemorrhaging was controlled, the patient had lost 5,100 ccs of blood—virtually her entire bodily blood volume. This profound loss of blood and oxygen resulted in devastating, permanent injuries: the patient was left permanently paralyzed from the waist down and suffered temporary failure of her kidneys, liver, heart, lungs, and spinal cord.

This is the factual background to the issue of admissibility of evidence that the defendant doctor did not have board certification.

The Trial and the Verdict

At trial, the plaintiff’s primary theory of negligence centered on a sizing mismatch. She argued that her native aorta was only 7–8 mm in diameter. That made the 16×8 mm graft choice inappropriate and negligent. The defendant doctor countered, claiming her aorta was 14 mm and that his graft choice was sound.

The jury ultimately believed the plaintiff, finding that the doctors had departed from the standard of care. They awarded her a total of $2,874,398 ($224,398 for past medical expenses, $2,000,000 for future medical care, and $1,333,000 for pain and suffering, which was reduced to the statutory non-economic damages cap of $650,000).

The defendant appealed, and the intermediate appellate court reversed the verdict on two key evidentiary points. The plaintiff then successfully petitioned the state’s highest court for review.

The Parties’ Arguments: Bolstering vs. Rebuttal

The central issue involves whether the jury was allowed to receive evidence that the defendant doctor did not have board-certification in vascular surgery.

The Defendant’s Argument: Legally Irrelevant Under Precedent

Pretrial, the defense team won a motion in limine keeping the doctor’s lack of board certification out of evidence. They relied heavily on established Maryland precedent holding that a physician’s failure to pass a board exam is generally irrelevant because it does not make it more or less probable that the physician botched a specific procedure.

The vascular surgeon argued that his choice not to obtain board certification in vascular surgery was not proper evidence because it had no bearing on whether he met the standard of care on the specific day of the operation. He argued that the trial judge committed a reversible error by later reversing this motion and allowing the jury to hear evidence about his lack of board certification.

The Plaintiff’s Argument: The Defense “Opened the Door”

The plaintiff’s legal team argued that while board certification status might be initially irrelevant, the defendant altered the rules of engagement during the trial.

When called to the stand, the defendant doctor’s counsel engaged in an extraordinary, 11-page examination detailing his extensive academic honors, his residency at a prestigious hospital, his teaching history, his elite surgical numbers, and his unpaid community board service. The plaintiff argued that because the defense chose to paint the doctor as a paragon of vascular surgery, fairness dictated that after the defendant “opened the door,” the plaintiff should be allowed to show that the defendant lacked board certification in that very specialty.

The Court’s Ruling: The Doctrine of “Opening the Door” to Evidence of Board Certification

In an unanimous decision, the judges reversed the intermediate appellate court and firmly ruled that the trial judge did not abuse his discretion in allowing the plaintiff to inquire into the defendant’s lack of board certification.

The court began by noting a fundamental distinction in medical malpractice law: the difference between an expert witness and a fact witness. The defendant was testifying exclusively as a fact witness—meaning his testimony was legally constrained to a recitation of what he did, saw, and observed while treating the patient.

Witness Accreditation Limits

The court noted that while “witness accreditation” (eliciting a witness’s background to make them relatable to a jury) is standard practice, it has strict boundaries for fact witnesses. The court explained the equitable concept of “opening the door”:

“‘Opening the door’ is simply a way of saying: ‘My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.’ It is a method by which we allow parties to ‘meet fire with fire’… the doctrine is really a rule of expanded relevancy.”

The doctor’s counsel ignored explicit warnings from the trial judge and engaged in extensive “puffing.” This lasted across 11 pages of transcript. Thus, the defense effectively placed the doctor’s professional qualifications at issue. Fairness dictated that if the defense could “puff up” his reputation, the plaintiff had every right to “puff down” by exposing his lack of board certification.

The court also briefly addressed the defense’s complaint that the plaintiff’s counsel used this information during closing arguments to attack the doctor’s overall credibility. The court noted that because the defense counsel failed to lodge an immediate objection during the closing argument, they legally waived any right to appeal that specific point.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Evidence of Board Certification

The Little opinion strikes a good balance. It recognizes the general rule that a defendant doctor’s lack of board certification ordinarily will not be admissible into evidence. However, if the defense goes too far in building up the doctor’s qualifications, admission of the lack of board certification into evidence is appropriate to balance the picture. It helps the juries receive a truthful, realistic portrait of the witness.

Moreover, if a physician wishes to testify as an expert and command the wide-ranging credibility that comes with extensive professional accreditation, their counsel must designate them as an expert subject to discovery.

The defense team attempted to have it both ways. They insulated the doctor as a mere fact witness while trying to extract the persuasive benefits of an elite expert witness. The court correctly identified this tactic. If a fact witness is allowed to spend lengthy time discussing matters wholly irrelevant to the actual operation—such as their charitable fundraising or undergraduate honors—they have left the realm of a fact witness and must face standard impeachment.

Trial Judge’s Correct Rulings

Here, the trial judge initially granted the doctor’s motion in limine. Then the judge warned the defense multiple times that they were playing with fire. He only reversed his ruling when the defense flagrantly overstepped.

You can read other Blog posts on cases involving Evidence issues.

Be sure to check back for Part 2 of this series. I will analyze the second half of the case regarding the exclusion of an unrelated chest CT scan. If you or a loved one has suffered a life-altering injury due to surgical error, contact us for an evaluation of your rights.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.