Luzi Bartsch was injured in a car accident caused by Irma Lage. She settled with Lage and then brought an underinsured motorist claim against Geico, her insurer. Coverage was available only if Bartsch suffered a permanent injury. Two experts testified that Bartsch’s injuries were permanent. The court nevertheless dismissed the lawsuit because Bartsch’s doctors did not testify that they held their opinions to a reasonable degree of medical probability.
The issue before the Superior Court of New Jersey Appellate Division is one that arises when lawyers fail to ask expert witnesses to express confidence in their opinions using specific language. The standard for expert opinions is often expressed as an opinion that is held to a “reasonable degree of certainty.” Recognizing that medical science is inherently uncertain and that honest medical experts often balk at the term certainty, the judicial trend is to allow medical opinions to be admitted when they are held to a “reasonable degree of medical probability.”
Incanting those magic words has sometimes been deemed necessary to the admissibility of an expert’s opinion. The judge who presided over Bartsch’s trial concluded that the absence of those words was fatal to her claim.
Geico called Dr. Edward Decter, an orthopedic surgeon who examined Bartsch at Geico’s request. He opined that the pain Bartsch described in her medical records was consistent with spinal degeneration and not consistent with the part of her neck that was injured in the accident. He also opined that her injuries were not permanent.
Interestingly, Dr. Decter had been admonished by a professional organization for slanting his expert opinions in the past to favor the party that hired him. The trial judge disallowed reference to that evidence of Dr. Decter’s “bad character” and the appellate court agreed with the judge’s ruling.
Bartsch relied on the testimony of a chiropractor and a pain management physician. The chiropractor, Dr. Mark Rodrigues, testified that Bartsch suffered from cervicalgia and lumbalgia, conditions that were caused by the car accident. He also testified that those conditions were unrelated to back pain he had treated several months before the accident. When asked whether he was certain of those opinions, Dr. Rodrigues answered, “Without a doubt.”
The pain management specialist, Dr. Clifton Burt, testified that the car accident caused cervical and lumbar radiculopathy. When he was asked whether that condition would be permanent, he testified that “it’s a good possibility that the original cause and the original disc bulges can lead to permanent symptoms.”
Both experts provided written reports prior to trial in which they expressed their opinions to a reasonable degree of medical probability. However, since neither expert used those words when they testified, the trial court dismissed Bartsch’s case.
In New Jersey, a medical expert must express an opinion to a reasonable degree of medical probability. However, as is true in most states, the expert is not required to use those “magic words.” Rather, the court must be satisfied that the expert is reasonably confident in the opinion expressed.
The appellate court held that Dr. Rodrigues’ testimony expressed the requisite degree of certainty. He testified that he believed the car crash damaged Bartsch’s spine and that he believed the damage was caused by hyperflexion or hyperextension induced by the accident. He did not say he believed the crash “might have” caused an injury. By testifying to an unqualified belief as to causation, he expressed confidence in his opinion.
When Dr. Rodrigues later testified that he had “no doubt” that Bartsch sustained a permanent injury as a result of the car accident, he made his confidence even more clear. The appellate court had no difficulty reversing the trial court’s ruling.
Dr. Burt’s testimony, on the other hand, would not have supported a verdict in Bartsch’s favor. He testified that a permanent injury was a “good possibility,” but an opinion that permanence is possible cannot be equated with an opinion held to a reasonable degree of medical probability.
Since Dr. Burt did not express confidence in his opinion as to permanence, the jury was not entitled to base findings on his testimony. Nevertheless, Dr. Rodrigues’ testimony alone would have allowed the jury to find that Bartsch’s injuries were permanent. Bartsch was entitled to a new trial, regardless of Dr. Burt’s insufficient testimony.
It is surprising that the trial judge insisted that medical experts must use the words “reasonable degree of medical probability,” given that New Jersey’s focus is on the expert’s expression of confidence, not on the specific words used to express confidence. At the same time, it is surprising that Bartsch’s lawyer did not ask the simple question: “Do you hold the opinions you’ve expressed today to a reasonable degree of medical probability?”
The lesson to learn is that lawyers should familiarize themselves with court decisions in their state that explain the level of certainty or confidence an expert must express in order to make the expert’s opinions admissible. Prefacing questions with the phrase “Do you have an opinion to a reasonable degree of medical probability” about the cause or nature of an injury, followed by “What is that opinion?” will avoid the risk that a trial judge might take a case away from a jury. Of course, it is also important to explain those standards to the expert during witness preparation so that the lawyer’s question and the expert’s response will not come as a surprise.