By Frank J. Riccio
"Old habits die hard." That cliché especially applies to trial attorneys who sometimes use language more out of custom or practice than for any valid legal reason. Unfortunately for plaintiff lawyers who try personal injury or medical negligence cases, the phrase "to a reasonable degree of medical certainty" has become a habit - a bad habit.
The frequent use of that phrase has all but codified language that has been described by at least one legal scholar as "almost an oxymoron." See Jeff L. Lewin, "The Genesis and Evolution of Legal Uncertainty About 'Reasonable Medical Certainty,'" 57 Maryland L. Rev. 380, 400-401 (1998). According to Lewin, the adjective "reasonable" qualifies and essentially negates the absolute connotation of the word "certainty".
Lewin's article traces the history of the creation and dissemination of the phrase "reasonable medical certainty." According to Lewin, the phrase originated sometime during the years 1915 to 1930 in Chicago , Ill. Prior to 1940, it was rarely used. By 1960, it was in use in at least 22 states. Its use continued through the decades, mainly through unreflective imitation of models provided in best-selling manuals of trial technique published during that time. Lewin specifically cites Goldstein's 1935 manual on "Trial Technique"and his 1942 book on "Medical Trial Technique"as the chief offenders.
In a law review journal article written in 1998, Glenn Bradford examines Missouri case law on the origin and meaning of the phrase. See Glenn E. Bradford, "Dissecting Missouri 's Requirement of 'Reasonable Medical Certainty,'" Journal of the Missouri Bar, Vol. 57, No. 3 (May-June 2001). According to Bradford, the phrase "to a reasonable degree of medical certainty" was first adopted by the Missouri Supreme Court in Waterous v. Columbia National Life Insurance Company, 186 S.W.2d 456 (Mo. 1945). Bradford argues that "reasonable medical certainty" is logically irrelevant to many medical issues, calling it a concept in search of a definition. The term is not used in the medical profession; nor is it a term that appears in peer-reviewed medical journals.
Physicians, who are for the most part unfamiliar with legal terminology, are taught by lawyers to answer expert questions invoking the "magic words." Being unfamiliar with this terminology, yet not daring to question its use, physicians assume that these words are the talisman that opens the door to their expert testimony, even though they have no idea what it means. As a result, what amounts to legal "mumbo-jumbo" assumes the appearance of medical authority, even though it is not used by the medical profession. Unfortunately, the phrase has spread to other technical experts, such as engineers, accountants and veterinarians.
To make matters worse, this phrase, because of its absolute connotation, raises the burden of proof and creates a greater legal burden on the plaintiff. As we have known since law school, the plaintiff's burden of proof in a civil case is by a preponderance of the evidence, which should be phrased as "more likely than not" or "more probable than not." Corsetti v. The Stone Co., 396, Mass 1, 23-24 (1985); School Committee of Brookline v. Bureau of Special Education Appeals, 389 Mass. 705, 716 (1983). The same burden of proof is required of plaintiffs in medical negligence cases. There is no requirement that medical opinion be stated "to a reasonable degree of medical certainty." Coughlin v. Bixon, 23 Mass. App. Ct. 639, 643-645 (1987).
By phrasing questions to an expert witness using the phrase "to a reasonable degree of medical certainty," plaintiff and defense lawyers introduce into trial language that implies a higher burden of proof than is necessary for the plaintiff to meet his or her burden in a civil case. This is extremely detrimental to the plaintiff.
Use of the phrase effectively raises the burden of proof from "preponderance of the evidence" to "beyond a reasonable doubt." In Massachusetts , expert testimony stated "to a reasonable degree of medical certainty" has been deemed to be sufficient to satisfy the much higher criminal standard of proof beyond a reasonable doubt. See Commonwealth v. Neverson, 35 Mass. App. Ct. 913, 914 (1993)
At least one state court has been critical of its use. The Court of Appeals in Tennessee found that jury instructions using the phrase "reasonable degree of medical certainty" were incorrect statements of the law and were confusing to the jury. Bara v. Clarksville Memorial Health Systems, Inc., No. M2001-00682-COA-R3-CV ( Tenn. Ct. App. Sept. 12, 2002). The Appeals Court in Tennessee held that the phrase "to a reasonable degree of medical certainty" is not synonymous with the correct legal standard of "more probable than not." The court held that the use of the "magic words" in the jury charge was erroneous and reversible error.
Other jurisdictions, such as Colorado , addressing the "certainty" problem, have allowed the hybrid phrase "to a reasonable degree of medical probability." Jacobs v. Commonwealth Highland Theater Inc., 738 P.2d 6 ( Colo. App. 1986).
Unfortunately, both sides using the phrase "to a reasonable degree of medical certainty" does not make the use of the phrase "fair." In fact, the use of this phrase by one party compels the other party to use it at trial. This creates an imbalance during the trial, as well as confusion, as to the proper standard that the jury should apply. Although Superior Court trial judges, in my experience, have always given the proper instruction as to the burden of proof, jurors still hear that phraseology during the trial and are confused. This is especially true given that the phraseology "to a reasonable degree of medical certainty" is heard repeatedly throughout the trial whereas the jury instruction on the burden of proof is heard only once at the end of the trial.
The misuse of the phraseology "to a reasonable degree of medical certainty" became an issue in a wrongful death medical negligence case that I tried several years ago. At trial, the Superior Court judge allowed defense counsel to argue to the jury that the plaintiff's expert did not state his expert opinion "to a reasonable degree of medical certainty" unlike his expert, who did. Defense counsel argued to the jury that the plaintiff's expert's testimony was deficient because the expert did not testify "to a reasonable degree of medical certainty" but only "more probable than not."
To make matters worse, my objection to this argument during the defendant's closing argument was overruled by the judge. The judge's failure to sustain the objection unfairly prejudiced my client by creating a higher standard of proof than is required. The defense argument heard by the jury was that the defendant's expert testified to a higher level of certainty than the plaintiff's expert, so the defendant's expert's testimony was better. This confused the jury as to the proper legal standard to be applied. It was obvious to me that the conclusion that the jury reached was that the plaintiff's expert was less certain about his expert testimony than the defendant's expert.
Although the judge did charge the jury that the plaintiff was not required to prove his case beyond a reasonable doubt, the judge did not charge the jury that he did not have to prove his case "to a reasonable degree of medical certainty." Thus the jury was left with the impression that, although the plaintiff met the minimal standard of proof, the defense had met a higher standard. You cannot unring the bell. Once a jury hears this type of argument, the defense is at a clear advantage and the plaintiff is unfairly prejudiced.
To deal with this issue, plaintiffs should routinely file motions in limine to preclude any of the parties from using the phraseology "to a reasonable degree of medical certainty." At videotaped depositions, plaintiffs should object to the phraseology and move to strike if used by defense counsel or his or her expert. Judges should sustain the objections and edit the tape accordingly.
To further stem the tide, plaintiffs' counsel should ask the trial judge to pre-charge the jury and to reinforce the correct standard of proof throughout the trial. Trial judges should require all trial counsel to phrase their questions with the language that fits the preponderance of the evidence standard. The phrases "more likely than not" or "more probable than not" when used to pose questions to the experts, whether medical or not, comports with the charge given by the trial judge and will eliminate the confusion and unfair prejudice that otherwise results.
As we all know, a trial lawyer's tools are his or her words. The habit of using the phrase "to a reasonable degree of medical certainty" should be discouraged in civil trials. The "to a reasonable degree of medical certainty" phraseology creates confusion and imposes a higher burden on the plaintiff and should not be used at any civil trial by anyone.