As lawyers we get used to required awkward legal terminology which is often required to get certain documents or testimony into evidence at a personal injury trial. In Missouri the phrase "Reasonable Degree of medical Certainty" has been required for some time in order to get a doctor's or medical professional's testimony into evidence at trial.
Oftentimes this is not a problem in most Missouri injury lawsuits, because at the end of a deposition or questioning at trial I simply ask the doctor, "Have all your answers and opinions been within a reasonable degree of medical certainty?" and 9 times out of 10 the doctor will answer "Yes." Usually, they know it is a legally required phrase for their opinions to get into evidence. However, some not so seasoned medical providers, for one reason or another, will not agree with that statement, even if they agree with the burden of proof of "more likely than not", or "but for".
Recently, a Jackson County Missouri case of Cable v St Luke's East Hospital, addressed this issue and the Judge ruled that the phrase is not required. Stating "Like most non-professional expert witnesses, Dr. Lynch does not use the "magic words" of reasonable medical certainty in her practice. She did opine, however, that she believed it was more likely than not that Plaintiff would have avoided the nursing home had he not experienced the problems Plaintiff attributes to Defendants' alleged negligence." The Court cited Tompkins v. Cervantes, 917 S.W.2d 186 (Mo. App. 1996).
In recent years, a few Missouri Courts have been giving less stringent followg of the magic words. In Wollen v. DePaul Heath Center, 828 S.W.2d 681, 682 (Mo. en banc. 1992), the court stated, "The cases on reasonable medical certainty ... reflect the lack of clarity that can [occur] when the legal profession tries to impose its terms on other professions." In Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo. App. 1986), the court of appeals held, "'reasonable medical certainty' is not a mandated 'verbal password' in questions propounded to an expert witness." The Supreme Court endorsed that view in Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 117-18 n.2 (Mo. en banc. 1989).
rlington Northern, Inc., 212 Mont. 514, 689 P.2d 273, 277 (1984):
Missouri courts have generally adhered to a test of "reasonable medical certainty" as the basis for admissibility of medical records at personal injury trials, although they do not require of doctors the same strictness in testifying that was once required. Although Missouri courts still formally adhere to a "reasonable medical certainty" standard, the term is not well understood by the medical profession. The term was adopted in law to assure that testimony received by the fact finder was not merely conjectural but rather was sufficiently probative to be reliable. The Cable Court ruled that "Our evidentiary standards are satisfied if medical testimony is based upon an opinion that it is 'more likely than not.' ".
In my St Louis personal injury practice I have always had the opportunity to clarify the "reasonable degree of medical certainty" phrase with doctors before they testify, and so far no problems. I will continue to always have doctors recite that phrase because different courts will treat this matter differently. But it is good to see that if one day I run into the doctor who does not like the phrase, I have cases to back up an argument that the phrase is not needed.
