A doctor’s board-certification status does not make them immune from a medical malpractice lawsuit
Even the best, most credentialed and skilled doctor can make a mistake that causes harm to a patient. Let’s take a look at whether their exam history and certifications affect the medical malpractice litigation process.
Your doctor must be licensed in order to practice medicine. This is true regardless of whether they are your primary care physician, a pediatrician, an ER doctor, or in a highly specialized field of medicine.
However, a physician can be licensed but not board-certified. Does this matter to you as a patient? It might not. If you want to know, you can use the American Board of Medical Specialties (ABMS) search function to see whether a specific doctor is board-certified. Not being board-certified doesn’t make them a less qualified doctor, but it might affect how they’re handled in a medical malpractice case.
What does it mean to be board-certified?
Board certification demonstrates that a physician is competent in a specific medical specialty. There are 24 specialties, including dermatology, surgery, pediatrics, obstetrics and gynecology, emergency medicine, anesthesiology, and others.
The boards are overseen by the ABMS. The non-profit ABMS works with organizations like the National Committee for Quality Assurance and others to ensure that its certification standards are routinely reviewed and updated.
Requirements to become board-certified
A doctor must meet these requirements:
- Graduate from an accredited university or college with a degree in premedical education.
- Earn an MD (Doctor of Medicine) or DO (Doctor of Osteopathic Medicine) degree at a qualified medical school.
- Complete a three- to five-year full-time residency training program accredited by the Accreditation Council for Graduate Medical Education (ACGME).
- Provide the board with a letter of recommendation from the director or a faculty member of the residency program.
- Earn a medical license in their state.
- Pass an exam administered by the board for their specialty.
Between 80% and 85% of U.S. physicians are board-certified, though it is not a requirement to practice medicine.
Does board certification affect a medical malpractice claim?
You can file a medical malpractice lawsuit against a board-certified doctor.
However, certain requirements might need to be met to prove medical malpractice.
In general, a claim for medical malpractice arises when a patient is harmed by a medical professional who fails to perform medical duties according to the appropriate standard of care. For a victim to recover compensation for the injuries that he has suffered because of medical malpractice, the plaintiff has the burden of establishing certain legal elements. These must be proven by a preponderance of the evidence, meaning that the evidence weighs more in favor of the plaintiff than the defendant, or simply, "more likely than not."
For the medical professional to be found negligent, your attorney must show that their conduct fell below the "accepted standard" of medical care. To establish that accepted standard in court, usually you must have an expert medical witness testify about the standard of care that was violated in your case.
The accepted standard of care would involve several factors, one of which is the standard followed by other physicians with the same board certification. In many medical malpractice lawsuits, a patient’s claim must be supported by a different doctor who practices in the same specialty.
In other words, if the doctor being sued for malpractice is recognized in their specialty by the AMBS—if they are board-certified—and if the treatment that’s the subject of the lawsuit involves this particular specialty, then there would likely need to be testimony by an expert witness who is a specialist in the same field or is board-certified in the same specialty.
How does an expert witness meet these criteria?
It’s not the expert witness who is on trial, but they do need to prove their authority and credibility in order to participate in the process.
In order to do this, the expert should have devoted most of their professional time in the year prior to the lawsuit to:
- Active clinical practice in the same specialty as the defendant’s licensing;
- Instruct students in an accredited medical school or professional program in the specialty in which the defendant is licensed.
Some courts waive these requirements, but this would happen on a case-by-case basis. If it does, the burden would still exist to prove that the expert is qualified to testify in the case.
However, there are a few other considerations regarding an expert witness in a medical malpractice case:
- The court may disqualify an expert witness on other grounds, aside from qualifications, if it is deemed necessary.
- An expert witness may not be paid a contingent fee; in other words, the fee is not paid only if the plaintiff wins the case.
- No person or company may retaliate against an expert witness for providing testimony. If that happens, they can be fined up to $10,000.
Is evidence that a doctor failed their board certification exams permitted in a medical malpractice lawsuit?
As a patient, you probably feel more comfortable knowing your doctor passed their boards with flying colors. But as the old adage says, “Do you know what they call the medical student who graduates last in their class? Doctor.”
And while a non-certified doctor might be perfectly capable of treating patients, their failure to pass board certification exams is usually not admissible to show whether they complied with the standard of care. The jury would not be permitted to use that failure as evidence that the doctor was negligent.
On the other hand, if the physician’s role in the lawsuit is as an expert witness, the standard changes. To provide expert testimony, evidence that they are not board-certified could impeach their credibility.
However, the court would be unlikely to admit evidence of prior board certification exam failures as long as the physician is presently board-certified.
How board-certification affects your medical malpractice lawsuit
Realistically, probably not much.
Whether or not your doctor was board-certified at the time of the alleged malpractice won’t matter for determining negligence. It’s more important that your lawyer carefully vets any expert witnesses, because they (and their qualifications) can make or break your case.
Your lawyer is the best person to determine how to make a case that demonstrates that the doctor violated basic standards of medical care, that you suffered harm as a result, and to what extent it cost you money. Regardless of how qualified your physician is, it does not make them immune from making mistakes or being negligent.