M.B. v. S.P., M.D., & CDMG, P.A., 124 So. 3d 358

M.B. underwent a laparoscopically-assisted vaginal hysterectomy by Dr. S.P. in July 2009 and sustained an intraoperative ureteral injury; she required a nephrostomy tube and later repair and continues to have urinary symptoms.
Liability dispute was not whether the ureter was injured but whether S.P. was negligent by failing to perform additional postoperative tests (beyond visual inspection) to detect ureteral damage.
M.B. sued S.P. for malpractice and CDMG (his employer) for vicarious liability; trial resulted in a defense verdict for S.P. and CDMG.
Before and during trial S.P. sought to exclude evidence that he repeatedly failed board-certification exams; the trial court granted a motion in limine and excluded that evidence.
During trial the judge was observed to have written a derogatory note about M.B. on the bench; when counsel discovered it, the judge made dismissive and hostile remarks and denied motions for mistrial and disqualification.
The appellate court affirmed exclusion of the board-exam evidence as not relevant to negligence or to S.P.’s limited testimony, but reversed for a new trial because the judge’s note and comments created a well-founded fear of unfairness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of S.P.’s repeated board-certification exam failures	Evidence was relevant to S.P.’s credibility as an expert and to rebut his experts’ board-certification testimony	Exam performance is irrelevant to negligence and, given S.P.’s limited testimony, not probative of expert credibility	Exclusion affirmed: not relevant to negligence; S.P. did not testify as an expert such that failures would impeach credibility
Whether trial judge should have recused or mistrial granted for judge’s derogatory written note and remarks	M.B. argued the note and the judge’s hostile comments created a well-founded fear of bias and deprived her of a fair trial	Judge minimized the note, denied it, and said bench notes are private and irrelevant to the jury	Reversed: motion to disqualify/mistrial should have been granted; judge’s conduct warranted new trial before a different judge

Campbell v. Vinjamuri, 19 F.3d 1274 (8th Cir. 1994) (exam performance generally not determinative of ability to meet standard of care; limited testimony does not open door to exam failures)
Gipson v. Younes, 724 So.2d 530 (Ala. Civ. App. 1998) (failure to pass certification test irrelevant to malpractice negligence)
Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (Ark. 1999) (physician’s lack of board certification may be used to impeach expert, but not probative of negligence on its own)
Dorsey v. Nold, 362 Md. 241, 765 A.2d 79 (Md. 2001) (physician’s inability to pass certification exam generally has little relevance to whether standard of care was met)
Marsingill v. O’Malley, 58 P.3d 495 (Alaska 2002) (courts disfavor admitting board-test failures to prove lack of knowledge or skill)
Dorfman v. Schwabl, 777 So.2d 427 (Fla. 5th DCA 2000) (permitting inquiry into a defendant’s certification status where comparative credibility of experts was placed at issue)
Gore v. State, 964 So.2d 1257 (Fla. 2007) (standard for legal sufficiency of disqualification motion: facts alleged must establish well-founded fear of unfair trial)