by Glenn E. Bradford1
I. Introduction
Any lawyer who has ever handled a personal injury or medical negligence case has witnessed the solemn incantation of the time-honored phase of qualification for medical testimony, "within a reasonable degree of medical certainty." "Doctor, do you have an opinion, within a reasonable degree of medical certainty, as to whether or not [whatever]?" This article examines Missouri case law on the origin and meaning of the standard "within a reasonable degree of medical certainty," sometimes alternatively referred to by lawyers and judges as "reasonable medical certainty." This rather amorphous concept of reasonable medical certainty appears to give the testifying medical expert a wide degree of latitude in expressing a professional opinion on issues of probability. According to Peter W. Huber, author of the well known book on scientific and technical evidence, Galileo's Revenge, Junk Science in the Courtroom, a physician holding the M.D. degree is permitted to testify to anything, so long as he is "willing to mumble some magic words about 'reasonable medical certainty.'"2 Huber derisively refers to the potential for "[m]alpractice by mouth."3 James E. Hullverson, Jr., of the St. Louis bar has written that "[t]he phrase has been a source of confusion, frustration, and endless interpretation for litigants, trial judges, and appellate courts."4 Mr. Hullverson remarks that the "'reasonable certainty' shibboleth makes the expert witness the evidentiary gatekeeper of his opinions. . . ."5
We will examine the phrase "reasonable medical certainty," its origins, its meaning as defined in Missouri case law, and its practical use in current trial practice in the courts of Missouri. There are two different legal issues related to expert opinion presented with or without reasonable medical certainty. Those two issues are the threshold evidentiary issue of the admissibility of the medical expert's opinion and, ultimately, the issue of whether or not the expert's opinion constitutes substantial evidence supporting a verdict or judgment of the court.
II. The Requirement of "Reasonable Medical Certainty"
Physicians are called upon to provide expert testimony in a large percentage of personal injury, wrongful death, and workers' compensation cases on the subjects of causation of injury, cause of death, extent and permanency of injury, and future damages. In such cases, the ultimate result may well depend upon the physician's willingness to state his opinions within a reasonable degree of medical certainty, or with reasonable medical certainty. The standard ostensibly provides the dividing line that separates admissible expert opinion from untrustworthy speculation and conjecture subject to exclusion.
An expert's opinion that does not indicate that he or she is expressing a conclusion that the purported mishap caused a particular loss with reasonable medical certainty "is insufficient to support a finding that a particular event caused the ailments in issue. Such testimony expresses only educated speculation, and amounts to nothing more than an assurance that the result was scientifically possible.")6 As a general rule, then, a statement of medical opinion must be one of "reasonable medical certainty" to support a finding of a causal relationship between an accident and an injury.7 In some instances, however, Missouri courts have permitted a more equivocal statement of medical opinion, when coupled with appropriate lay testimony supporting the proffered theory of causation.8 The rationale for this exception to the general rule seems related to the principles underlying the sudden onset doctrine.9 In addition, some cases have emphasized that the overall thrust of the testimony was probative, even in the absence of the usual form of testimony. In Walker v. St. Louis Pub. Serv. Co.10 the Supreme Court of Missouri stated that "[w]here, as here, it may be determined from the testimony that the doctor was expressing his expert opinion as to the cause of a condition, the form of language used will not deprive the statement of its evidentiary value."11
Two types of problems frequently arise related to the use and application of the concept of reasonable medical certainty. If the trial attorney fails to have the physician expert witness validate some or all of his opinions by the standard of reasonable medical certainty, an appellate court may find that the physician's testimony was legally insufficient or failed to rise to the level of substantial evidence, vitiating a verdict.12 On the other hand, a testifying physician may be confronted by the cross-examiner's inquiry as to whether he can state his opinions "within a reasonable degree of medical certainty," or whether, in fact, he is not simply engaging in inadmissible speculation. This type of cross-examination can constitute a real conundrum for a physician not experienced at testifying, especially if sponsoring counsel has not previously explained the concept of reasonable medical certainty.13
Missouri law has long required medical testimony involving judgment as to causation and future damages to be based on this standard. There is case authority in Missouri broadly holding that any expert medical testimony is insufficient if it does not indicate that the expressed opinion is given within a reasonable degree of medical certainty, with reasonable medical certainty, or comparable language.14 Despite a number of reported judicial attempts to avoid reversing a case merely because an expert failed to mumble the magic words, Missouri still ostensibly retains the requirement of expert medical testimony based on "reasonable medical certainty."15
Cases from other jurisdictions have recognized pharmacological certainty, hydrologic certainty, accounting certainty, architectural certainty, educational certainty, economic certainty, security certainty, mechanical certainty, police certainty, aviation certainty, chemical certainty, commercial certainty, and, not to leave our own profession out of the parade, legal certainty.
You invented "reasonable medical certainty!" No, you invented it!
In Wollen v. DePaul Health Center16, the Supreme Court of Missouri commented that "[t]he 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."17 A review of legal and medical writing on the subject of "reasonable medical certainty" reveals that many lawyers and judges believe that the phrase is a medical term of art. Physician commentators, however, have described the phrase as a legal term of art.18 It appears that practicing physicians do not routinely employ the concept of reasonable medical certainty in everyday practice. In discussing this issue, one writer has observed that physicians "are not accustomed to thinking in terms of certainty."19 The concepts of certainty and predictability seem to arise only when medical matters reach the litigation stage, where decisions must be made on matters related to future events and conditions.
In an effort to find out how the concept of reasonable medical certainty is viewed from the perspective of the medical profession, a number of books aimed at testifying physicians were reviewed. In Effective Medical Testifying–A Handbook for Physicians, authors William Tsushima and Kenneth Nakano, neither of whom are lawyers, gave this advice to potential medical witnesses:
A . . . significant legal term that needs to be clearly understood is the phrase reasonable medical certainty. In the medical realm, there are some occasions in which the physician is unequivocally certain, as with an x-ray film of a fractured bone. At other times, the physician is fairly confident about the diagnosis or prognosis but would not commit to being certain, even if the probability of being correct is high (e.g., 75% or better). In the courtroom, the physician will be asked whether the opinion expressed is to a 'reasonable degree of medical certainty.' The phrase 'reasonable medical certainty' means 'more likely than not.' In other words, if there is a preponderance – 51% or more – of evidence in one direction, then the phrase 'reasonable medical certainty is applicable.20
The authors go on to note that some physicians mistakenly interpret reasonable medical certainty to mean absolute certainty or the scientific statistical significance of 95-99% probability, "whereas reasonable certainty is a much less stringent and exacting standard."21 The authors conclude that "[a]pplying the strictest medical standards in civil cases would be incorrect and unjust."22
Psychologist Norman Poythress, a veteran forensic psychologist, tells of once attempting to define what he meant by "reasonable psychological certainty."
Now in my prior 80-100 court appearances, whenever the phrase "reasonable psychological certainty" has been used, I've left it to the attorney for ferret the meaning. (They never do.)*** I decided to show a little initiative, assert myself in the proceedings, and ventured to suggest sua sponte (pretty sharp, huh?) that perhaps it would be best if I defined the phrase "reasonable psychological certainty" so that the jury had some idea of what I meant by it in my opinion testimony to follow. Well, let me tell you guys, the courtroom turned into Star Trek! . . . it was as if I had fired all lasers at "stun" force, resulting in the temporary immobility of all parties, followed by a rather quick recovery in the form of objections from counsel, querulous looks from the bench, and the hasty removal of the jury from the courtroom in a flurry of activity . . . . I had committed the ultimate sacrilege. I had suggested deflowering the immaculate psychologist-in-the-sky who always has opinions based on reasonable psychological (i.e., scientific) certainty.23
It appears that "reasonable medical certainty" is a concept unknown to the everyday practice of medicine. The phrase appears to have been coined by the legal profession in an effort to provide a mechanism for introducing testimony involving medical judgment. Although the case law does not provide a definition for "reasonable medical certainty," the how-to books for medical experts do. "More likely than not" and "51% or greater" seems to be the consensus.
The lesson for the trial lawyer seems to be that it could be fruitful to explore, preferably in a discovery deposition, what the expert means by the term "reasonable medical certainty" or any of its variants, such as "reasonable psychological certainty" or "reasonable scientific certainty." If the witness has read some of the medical expert's how-to books, she might be happy to testify that she is 51% certain, leaving you, the opponent, with an uncertainty factor of 49% to play with in closing argument.
III. The Birth of the Magic Words
After exhaustive research, commentator Jeff L. Lewin has traced the birth of the phrase, "with a reasonable degree of medical certainty'" to Chicago, Illinois, sometime during the years from 1915 to 1930.24 "While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique."25 Mr. Lewin traced the spread of the phrase over the next few decades.
Although the phrase "reasonable medical certainty" was already in use in Illinois by 1931, there is no evidence that the phrase was employed in any other jurisdiction prior to 1940. By 1960, however, the phrase was in use in at least twenty-two states and had become deeply ingrained in the legal lexicon, as reflected in numerous secondary authorities. Analysis of published opinions containing the phrase "reasonable medical certainty" suggests that the diffusion of this phrase between 1940 and 1960 was attributable to the bar rather than the bench. . . . While direct empirical evidence is lacking, the most plausible explanation for the rapid diffusion of the phrase between 1940 and 1960 was that attorneys throughout the United States were employing the models provided in Goldstein's 1935 manual on Trial Technique and his 1942 book on Medical Trial Technique.26
Consistent with Mr. Levin's theory, the first specific use of the phrase "reasonable medical certainty" in the reported Missouri decisions appears in the case of Waterous v. Columbian Nat. Life Ins. Co.,27 decided by the Supreme Court of Missouri in 1945. Apparently, Missouri had the dubious distinction of being the first jurisdiction after Illinois to adopt the phraseology of "reasonable medical certainty."28
IV. "Reasonable Medical Certainty" in Missouri Courts
An early case in Missouri considering the requirements of expert medical testimony is the 1894 case of Barr v. City of Kansas.29 In that case the Supreme Court of Missouri held that, in an action for injuries, the attending physician may testify as to the probable result of the injuries upon the plaintiff's life and health. An objection was made at trial to the treating physician's testimony that the plaintiff's injuries would "probably shorten [her] life" on the ground that the testimony was not couched in terms of "reasonable certainty." The Court noted that the instruction submitted to the jury must be based on reasonable certainty. However, the Court stated that it was not necessary "that the witness must be interrogated in language which would be proper and appropriate in an instruction."30 The Supreme Court of Missouri permitted the physician's testimony to stand as given in terms of what would "probably" occur in the future.
V. Mumbling the Magic Words: No Judicial Definition of "Reasonable Medical Certainty"
Given the broad popular usage and acceptance of the concept of "reasonable medical certainty," it would be expected that the courts have given the phrase a precise and definite meaning. On the contrary, appellate opinions seem to use the phrase "reasonable medical certainty" as if its meaning were self-evident. Commentators who have attempted to research the origins of the concept of "reasonable medical certainty" have generally concluded that its origins are uncertain.31 Indeed, we conclude that no Missouri case has ever defined the phrase "within a reasonable degree of medical certainty." Case law from around the country demonstrates that appellate courts have not been able to come to a consensus on whether "reasonable medical certainty" means "probably true," "more probably than not," "beyond a reasonable doubt," or some combination of those concepts.32
As an example, in the original appeal in the case of Bertram v. Wunning,33 the St. Louis Court of Appeals held expert medical testimony as to a 90% probability legally insufficient on the ground that the testimony was not expressed in terms of "reasonable medical certainty." In Bertram v. Wunning, the testifying physician was first asked whether he could testify that a hernia was caused by a blow, to which he replied: "It could be. I couldn't say."34 On cross-examination the witness testified that he could not state causation "as a medical certainty."35 The Court of Appeals held that medical testimony must be cast in terms of "reasonable medical certainty" in order to constitute substantial evidence on the issue of causation.
In Missouri, as in Illinois,36 it appears that the courts adopted the standard of "reasonable medical certainty" in order to accommodate two competing technical evidentiary principles. First, testimony that something might, could or would cause a condition was not thought to be definite enough to constitute substantial evidence.37 Missouri courts, therefore, developed the rule requiring that causation and like testimony comport with the reasonable probability rule.38 However, Missouri courts were reluctant to permit expert physician testimony to the effect that a trauma did cause an injury, because such testimony was considered as invading the province of the jury on the ultimate issue of the case.39 Missouri courts gravitated to the reasonable medical certainty language in an apparent effort to permit an expert's view of possibility or probability, without doing violence to the general principle that the ultimate factual issues in the case should be decided by the jury without undue emphasis on the opinion of expert witness.40
An early case on reasonable medical certainty is Waterous v. Columbian Nat. Life Ins. Co.41 In this 1945 case, the Supreme Court of Missouri held that a physician's opinion that the insured's paralysis was caused, "with reasonable medical certainty," by a certain blow to the head, constituted "substantial evidence" and warranted submission of the case to the jury. The Supreme Court of Missouri's opinion in Waterous v. Columbian Nat.Life Ins.Co. appears to mark the initial appearance of the phrase "reasonable medical certainty" in Missouri case law.
VI. Trying to Count What is not a Number and Measure What is Not Space
In considering the issue of how much certainty should be required in a physician's testimony, a Kentucky court noted that "[p]hysicians differ in the degree of caution or lack of caution with which they phrase their opinions, and one man's 'possibility' may be equivalent to another's 'probability.'"42 The court further commented that ". . . it is a shame that claims of equal merit should stand or fall on just how the medical witnesses choose to portray their conclusion . . . ."43
Nebraska was one of the first states to break away from the strict requirement of the "magic words"of "reasonable medical certainty."44 Early on, the Nebraska Supreme Court observed that the term "reasonable" is ambiguous and that "an attempt to give specific meaning to the term 'reasonable' is trying to count what is not a number, and measure what is not space."45 The Nebraska Supreme Court opted for a standard of "probability" rather than "reasonable medical certainty."46 Other states have followed Nebraska's lead.
In Nunez v. Wilson,47 the Kansas Supreme Court reversed the trial court's exclusion of a physician's testimony as not based on a reasonable medical certainty. The Kansas Supreme Court noted that the phrase "reasonable medical certainty" had attained a "'magical' status" among judges and lawyers.48 The court stated that "[t]he reason for this is apparent; if the 'magic words' are missing the answer is suspected of resting on mere guess or conjecture."49 The Kansas Supreme Court rejected the premise that the phrase "reasonable medical certainty" is required for medical testimony. The court held that questions to experts are proper if framed in terms of probabilities of causal relationships. In other words, the "magic words" are no longer absolutely necessary in Kansas courts.
Other states have followed suit, holding that questions framed in the language of "more probably than not" are an acceptable substitute for the more formal language, "reasonable medical certainty." In Dallas v. Burlington Northern, Inc.,50 the Montana Supreme Court gave this explanation of "reasonable medical certainty."
Although we still formally adhere to a "reasonable medical certainty" standard, the term is not well understood by the medical profession. Little, if anything, is "certain" in science. 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. We are striving for, what in fact, is a probablility rather than a possibility. Our evidentiary standards are satisfied if medical testimony is based upon an opinion that it is "more likely than not."51
Therefore, it appears that a number of states have abandoned strict adherence to the words "reasonable medical certainty" in favor of an evaluation of the substance of the expert's testimony wherein the court seeks to determine whether, in fact, the expert is testifying to a probability or, on the other hand, a mere possibility, the latter not qualifying for admission into evidence nor making the grade as substantial evidence supporting a verdict or judgment of the court.
VII. "Reasonable Medical Certainty" Logically Irrelevant to Many Medical Issues
Based on the history of its development and stated purpose, the requirement of reasonable medical certainty should thus logically be held to be a requirement only when an expert is expressing an expert medical opinion about causation or future damages, or other issues related to possibility or probability.52 When a party relies on expert testimony to provide evidence as to causation when there are two or more possible causes, that testimony must be given to a reasonable degree of certainty.53 It makes no sense to require reasonable medical certainty as to opinions about standard of care, for instance. The applicable standard of care ought to be objectively ascertainable without any need for assurances of reasonable medical certainty. The content of the applicable standard of care is not an issue related to prediction or probability. Some Missouri appellate decisions, however, have blurred this distinction.54
"[T]he testimony of a physician concerning a diagnosis of a patient is admissible even when it is not based on a reasonable degree of medical certainty."55 The terms "think," "guess" or suggest "does not render [an expert witness's] testimony inadmissible if [the expert] intended to express his opinion or judgment."56
VIII. "Reasonable Medical Certainty"–A Concept in Search of a Definition
It appears that the meaning of "reasonable medical certainty" is entirely subjective and based on the personal standards, or lack thereof, of the testifying physician.57 Indeed, no Missouri case law has been found that provides a definition of "reasonable medical certainty."58 It apparently means whatever the testifying physician thinks it means. In the second Bertram v. Wunning appeal, the Court of Appeals said as much, stating that what the phrase "reasonable medical certainty" meant to the testifying physician was a matter going solely to weight and not to whether such testimony constituted substantial evidence.59 In the original trial, the testifying physician had testified that he was 90% certain that the hernia was caused by the trauma in question but demurred on the question of reasonable medical certainty.60 By the time the second trial rolled around a couple of years later, the testifying physician had educated himself on the requirements for reasonable medical certainty. He testified this time that a 90% possibility of causation was indeed within reasonable medical certainty. The Court of Appeals noted that "[i]n the instant case his reply to the hypothetical question as to causal connection was not couched in terms of 'could be' or 'I couldn't say' but was a definite affirmance that within 'reasonable medical certainty' his opinion was the accident caused the hernia."61
On the subject of the necessary degree of certainty required for a reasonable degree of medical certainty, authors Marcia Boumil and Clifford Elias62 had these observations:
The traditional rule is that an expert is expected to state only those opinions which he is sure about "to a reasonable degree of medical certainty." The difficulty comes in deciding what this phrase means and how strictly the element of "reasonableness" should be interpreted. For example, one approach is to require that the direct and circumstantial evidence in the case (e.g., understanding of the particular subject matter, availability of requisite medical history and facts about the occurrence) allow the expert to form an opinion about the occurrence "to a reasonable degree of medical certainty." The alternative approach is to view the reasonable-degree-of-medical-certainty as tantamount to carrying the ultimate burden of proof. Thus, reasonable degree refers to whether it is "more likely than not" that the injury to the plaintiff was proximately caused by the negligence of the defendant. The second approach demonstrates the critical importance of expert testimony.63
The late, legendary NITA64 stalwart Irving Younger, never one to pull his punches, had these words in seeking to analyze the comparable phrase "a fair degree of medical certainty":
If you analyze it, it doesn't mean anything. What's a "fair" degree? It's a weasel word. It can mean almost whatever you want it to mean. And then what's a "fair degree of certainty"? I thought certainty was 100%. And what's a "medical certainty" as opposed to some other kind of certainty?65
Although the "more probable than not" standard for expert medical opinion would appear to fit comfortably into the evidentiary framework of a civil trial, commentators have questioned whether testimony based on such standard would provide a basis for a submissible case in a criminal trial where the burden of proof is the more stringent "beyond a reasonable doubt" standard. Query: If a pathologist testifies that arsenic poisoning was the cause of death of a presumptive murder victim, based on a standard of "more probable than not" or "51% certainty," is there not a reasonable doubt as a matter of law?
IX. "Reasonable Medical Certainty" Spreads to Other Technical Experts
It appears that the use of the phase "reasonable degree of medical certainty" has now been expanded beyond its original employment in cases involving medical issues. Virtually every type of expert witness is now asked to qualify his opinions "within a reasonable degree of [fill in the blank] certainty." Missouri cases have been found mentioning: "a reasonable degree of psychological certainty,"66 "psychiatric certainty,"67 "orthopedic certainty,"68 "anesthetic certainty,"69 "veterinary medical certainty,"70 "dental certainty,"71 "engineering certainty,"72 "scientific certainty,"73 "clinical certainty,"74 "professional certainty,"75 and "actuarial certainty."76
X. Practice Note: How to Prepare the Expert
Well known trial practice teacher Thomas A. Mauet advises counsel preparing a physician expert witness for direct examination to "[e]xplain that a 'reasonable degree of medical or scientific certainty' is neither total certainty nor speculation, but that level of certainty customarily relied on in making professional decisions."77
Noted Missouri trial lawyer John S. Sandberg has provided several practical suggestions for use when preparing an expert medical witness for trial.78 Among other practical approaches, Sandberg suggests that, if faced with a medical expert "disinclined to testify that his opinion is based on reasonable medical certainty, he should be asked . . . whether his opinion is based on guesswork, speculation, or conjecture."79 Sandberg goes on to observe that "[a] negative answer to this question will satisfy the causation requirement."80
XI. Conclusion
It appears that Missouri appellate courts adopted the phrase "reasonable medical certainty" out of a desire to permit an expert physician witness to give an opinion about possibilities or probabilities without requiring or permitting the witness to provide an opinion to an absolute certainty, which was considered to constitute an invasion of the province of the jury in deciding ultimate facts. However, it also appears that no Missouri appellate case has ever defined the phrases "within a reasonable degree of medical certainty" or the shorter form, "reasonable medical certainty." It appears that the meaning of "reasonable degree of medical certainty" is entirely subjective and based on the personal standards of the testifying physician.
One scholar has suggested that state courts all over the country incorporated this ostensible standard of expert medical testimony into the law based on the inclusion of sample questions containing this phrase by Professor Goldstein into his popular trial techniques guide in the early part of the past century. The use of phrase was apparently popularized by trial attorneys "slavishly imitating Goldstein's examples."81 Indeed, the language "reasonable degree of medical certainty" was not used in a Missouri case until the middle part of the twentieth century. No reported Missouri appellate case has ever attempted to define the concept of "reasonable degree of medical certainty." Cases from the other state courts attribute various definitions to the phrase. Many states have no requirement for the use of this qualifying language in expert medical testimony.
Despite its apparently questionable heritage, Missouri courts have adopted the standard of reasonable medical certainty for seemingly sound reasons and have perpetuated its use in the practice, albeit in an unquestioning manner. Despite its origin, Missouri judges have grown up with the phrases "reasonable degree of medical certainty" and "reasonable medical certainty" and probably expect to hear them in the questioning of medical witnesses. Although the language "reasonable medical certainty" should logically only be required in framing questions calling for opinions as to issues related to predictability and probability, such as causation and future damages, realism probably dictates that the formalistic language "within a reasonable degree of medical certainty" be intoned in all questions calling for a medical opinion of any kind, type or character.82 At worst, such language would constitute mere surplusage upon appellate review.83
It seems that the language "reasonable medical certainty" is not meant to constitute a quantitative opinion so much as a qualitative opinion vouching that the testifying expert is reasonably certain of the correctness of his opinion, recognizing that there can be no absolute certainty on issues of possibilities and probabilities. Missouri law positions reasonable medical certainty as floating somewhere amidst the uncertainty of "maybe," "possibly," "or "probably," and, at the other end of the spectrum, the certainty of "absolutely without question." Perhaps, upon reflection, that is all that the law need require.
Endnotes
1 Glenn E. Bradford is a 1972 graduate of the Tulane University School of Law, where he was a member of the board of editors of the Tulane Law Review. He practices as a trial lawyer in the firm of Glenn E. Bradford & Associates, P.C., in Kansas City, with emphasis on plaintiff's personal injury and criminal defense in state and federal court. Mr. Bradford has served as general attorney for the Missouri State Board of Registration for the Healing Arts since 1993.
2 "The standards for medical witnesses are more biased still; the hermit clinician can usually testify to anything if he holds an M.D. and is willing to mumble some magic words about 'reasonable medical certainty.'" Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom 177 (BasicBooks) (1991).
3 Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom 177 (BasicBooks) (1991).
4 James E. Hullverson, Jr., Reasonable Degree of Medical Certainty: A Tort et a Travers, 31 St. Louis U. L. J. 577 (1987)
5 James E. Hullverson, Jr., Reasonable Degree of Medical Certainty: A Tort et a Travers, 31 St. Louis U. L. J. 577, 589 (1987)
6 Carter v. Jones Truck Lines, Inc., 943 S.W.2d 821, 827 (Mo. App. S.D. 1997) (citations omitted).
7 Carter v. Jones Truck Lines, Inc., 943 S.W.2d 821, 826 (Mo. App. S.D.1997).
8 Johnson v. Duenweg Fire Dept., 735 S.W.2d 364, 367 (Mo. banc 1987); Choate v. Lily Tulip, Inc., 809 S.W.2d 102, 105-06 (Mo. App. S.D. 1991); Martin v. City of Independence, 625 S.W.2d 940, 942 (Mo. App. W.D. 1981).
9 See, e.g., Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364 (Mo. banc 1987), where an award of workers' compensation benefits was upheld in spite of the inability of the widow's medical expert to conclude with reasonable medical certainty that the worker had suffered a heart attack on the day in question. However, the court pointed to the existence of lay testimony that, combined with the medical evidence, supported the award. The court pointed out that prior to the day in question, the deceased "had not complained of pain in his chest or arms;" that on the day in question, while on duty at a fire as a volunteer firefighter, he experienced intense pain in his chest and arms for an hour-and-a-half; and that he continually experienced tiredness and additional pain until suffering a heart attack nine days later. The Supreme Court of Missouri held that "the Commission reasonably concluded . . . that the [firefighter's] pre-existing heart condition was activated by the unusual exertion [he experienced] on the job." Cf., Williams v. Jacobs, 972 S.W.2d 334, 340 (Mo. App. W.D.1998). Where the sudden onset doctrine applies, "[i]t is not essential to have medical testimony, however, as a causal connection between an accident and injury can be inferred in cases where there is a visible injury, or a sudden onset of an injury, or 'an injury that as a matter of common knowledge follows the act.'" Id. "Under the sudden onset doctrine," the state may employ "a lay witness . . . to establish the nature, cause and extent of an injury 'when the facts fall within the realm of lay understanding.'" Id.
10 243 S.W.2d 92, 97 (Mo. 1951) (per curiam).
11 "The Missouri courts did not consistently mandate use of particular verbal formulas." Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Md. L. Rev. 380, 504. In addition, "reasonable medical certainty" 'is not a required "verbal password" in questions propounded to an expert witness.' Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo. App. E.D. 1986), citing Miller v. Weber, 688 S.W.2d 389, 391 (Mo. App. 1985). See also Kummer v. Cruz, 752 S.W.2d 801, 806 (Mo. App. E.D. 1988), where expert testimony that a lacerated sphincter muscle was "most probably" caused by the episiotomy was held admissible (and it was error to exclude the testimony), when there were other facts tending to show causation, was helpful to the jury in drawing reasonable inferences on the issue.
12 But see, Stuart v. State Farm Mut. Auto Ins. Co., 699 S.W.2d 450, 456 (Mo. App. W.D. 1985), where the Court of Appeals held that the failure to object to expert medical opinion given without reasonable medical certainty waived objection.
13 See, Mark D. Howard, Proving Causation with Expert Opinion: How Much Certainty Is Enough?, 74 Ill. B.J. 580, 584 (1986)("Most experts, other than professional witnesses, are unfamiliar with the 'reasonable certainty' language used in court.")
14 See, e.g., McDonald v. Missouri-Kansas-Texas R.R. Co., 401 S.W.2d 465 (Mo. 1966) (where medical testimony, as construed by the Supreme Court on appeal, "established with reasonable certainty the causation" of the injury in question, "[t]he form of the language used does not deprive the [expert testimony] of . . . evidentiary value"); Turnbo v. City of St. Charles, 932 S.W.2d 851 (Mo. App. E.D. 1996). See, generally, Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380 (1998). But see, e.g., Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 120, ftnt. 2 (Mo. banc 1989) (in formulating his opinion, Dr. Wright did not use the term "reasonable medical certainty". Use of this phrase, however, is not mandated and does not affect the substantiality of his testimony. Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo. App. E.D. 1986); Miller v. Weber, 688 S.W.2d 389, 391 (Mo. App. E.D. 1985).
15 Professor James W. Jeans commented as follows: "Note that in this particular testimony each question or answer which concerned the doctor's opinion included the shibboleth 'based on a reasonable degree of medical certainty.' No doubt there is the necessary, in most jurisidictions, for the expert to express his degree of certainty in some such fashion. . . ." James W. Jeans, Trial Advocacy, 1975 ed., Section 12.20 (Mechanics of Interrogation – Conclusions – Illustration), p. 293.
16 828 S.W.2d 681 (Mo. banc 1992).
17 828 S.W.2d 681, 682 (Mo. banc 1992).
18 "As men of law they are tying to force us aliens to speak their language." Jonas R. Rappeport, Reasonable Medical Certainty, 13 Am. Acad. Psychiatry & L. Bull 5, 8 (1985); see also, Harold A. Liebenson, You, the Medical Witness 129 (1961).
19 Earl F. Rose, A Pragmatic Approach to Medical Evidence and the Lawsuit, 5 U. Tol. L. Rev. 237, 252 (1974) ("Reasonable medical certainty or reasonable medical probability means to the physician that the conclusions which can be drawn from the data would have a high degree of acceptance by other qualified physicians.") (footnote omitted).
20 William T. Tsuhima, Ph.D., and Kenneth K. Nakano, M.D., Effective Medical Testifying–A Handbook for Physicians, p. 5 (Butterworth-Heinemann 1998) (the authors cite the following as authority: American College of Legal Medicine. Legal Medicine: Legal Dynamics of Medical Encounters (2nd ed. St. Louis: Mosby–Year Book, 1991).
21 Id.
22 Id. at 170. (As authority for this proposition, the authors cite Liebenson, H.A., You, the Expert Witness, Mundelein, IL: Callaghan, 1962).
23 Norman G. Poythress, Jr. (1982), Concerning reform in expert testimony: An open letter from a practicing psychologist. Law and Human Behavior, 41.
24 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380, 381 (1998).
25 Id. at 381 (Goldstein's Trial Technique, 1935 ed.).
26 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380, 430 (1998) (footnotes omitted).
27 186 S.W.2d 456 (Mo. 1945).
28 Mr. Levin comes to the same conclusion. See, e.g., Jeff L. Levin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380, 437, font. 242, 441 (1998).
29 25 S.W.562 (Mo. 1894).
30 25 S.W. 562 at 563.
31 See, James E. Hullverson, Jr., Reasonable Degree of Medical Certainty: A Tort et a Travers, 31 St. Louis U. L. J. 577, 578 (1987) ("The origins of the phrase are obscure, its evolution accidental . . .").
32 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380 (1998).
33 385 S.W.2d 803, 807 (Mo. App. E.D. 1965), appeal after remand, Bertram v. Wunning, 417 S.W.2d 120 (Mo. App. E.D. 1967).
34 385 S.W.2d 803 at 804.
35 385 S.W.2d 803 at 806-07.
36 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380, 406-16 (1998) (Illinois courts attempted to reconcile the "reasonable-certainty rule" with the "ultimate-issue rule"); see, e.g., Illinois Central Railroad Co. v. Smith, 70 N.E. 628 (Ill. 1904) (expert testimony of a medical expert witness on the issue of causation of personal injuries invaded the province of the jury).
37 385 S.W.2d 803 at 806.
38 Barr v. City of Kansas, 25 S.W. 562 (Mo. 1894). The Supreme Court of Missouri emphasized that the most a physician could say as to the ultimate effect of injuries to the spine and womb on the life of the injured person, however experienced or learned the physician might be, was to give an opinion as to probable consequences. The Supreme Court of Missouri upheld the trial court's admission of expert testimony to the effect that the "probability" was that the injuries would shorten this particular plaintiff's life. The Supreme Court of Missouri expressly rejected the idea that reasonable certainty was needed to support the admission of this general type of testimony, the court pointing out that probability was the ultimate standard for the jury and one which was therefore proper in an instruction.
39 Taylor v. Grand Avenue Ry. Co., 84 S.W. 873 (Mo. 1904); Glasgow v. Metropolitan Street Ry. Co., 89 S.W. 915 (Mo. 1905); Roscoe v. Metropolitan Street Ry. Co., 101 S.W. 32 (Mo. 1907). But see, Kimmie v. Terminal R.R. Ass'n of St. Louis, 66 S.W.2d 561 (Mo. 1933); O'Leary v. Scullin Steel Co., 260 S.W. 55, 61 (Mo. banc 1924).
40 See, generally, Commissioner Doerner's discussion in Bertram v. Wunning at 385 S.W.2d at 804-05.
41 186 S.W.2d 456 (Mo. 1945).
42 Inland Steel Co. v. Johnson, 439 S.W.2d 562, 564, n. 1 (Ky. 1969) (the court is quoting from Heart Disease and the Law).
43 Inland Steel Co. v. Johnson, 439 S.W.2d 562, 564, n. 1 (Ky. 1969).
44 See, e.g., Lane v. State Farm Mut. Auto. Ins. Co., 308 N.W.2d 503 (Neb. 1981).
45 Altshuler v. Coburn, 57 N.W. 836, 838 (Neb. 1894).
46 308 N.W.2d 503, 512-13 (Neb. 1981).
47 507 P.2d 329 (Kan. 1973).
48 507 P.2d 329, 332 (Kan. 1973).
49 507 P.2d 329, 332 (Kan. 1973).
50 689 P.2d 273 (Mont. 1984).
51 689 P.2d 273, 277 (Mont. 1984).
52 Cf., Holmes v. Gamewell, 712 S.W.2d 34, 37[7] (Mo. App. E.D. 1986) (objection to testimony on causation not based on standard of reasonable medical certainty waived); Wagner v. Piehler, 879 S.W.2d 789 (Mo. App. W.D. 1994).
53 Wyckoff v. Davis, 297 S.W.2d 490, 494 (Mo. 1957).
54 Cf., Koontz v. Ferber, 870 S.W.2d 885, 890 (Mo. App. W.D. 1993).
Defendants objected on the ground that the question called for speculation and conjecture. The trial court sustained the objection. Plaintiffs fail to explain to this court why such testimony was not speculative. The physician's opinion that the lab reading "may" reflect acidosis is not the same as an opinion, to a reasonable degree of medical certainty, that the lab reading does reflect acidosis. It is not clear from the record what Dr. Blum meant. He may have meant such a reading was consistent with the possibility of metabolic acidosis, an opinion which, if expressed to a reasonable degree of medical certainty, would presumably be admissible. However, it is at least equally likely that he meant that one cannot draw specific conclusions from the reading. Our inability to know what Dr. Blum meant leaves us unable to find an abuse of discretion in excluding the evidence. Moreover, plaintiffs have not explained to this court why this testimony was of significance. Plaintiffs have not shown that the trial court abused its discretion in excluding this deposition passage.
55 Johnson v. Creative Restaurant Mgmt., 904 S.W.2d 455, 459 (Mo. App. W.D. 1995).
56 Id.; Lineberry v. Shull, 695 S.W.2d 132, 136 (Mo. App. W.D. 1985).
57 "A glaring feature of the opinions commenting upon the meaning of 'reasonable certainty' is the universal confession that the meaning of the phrase is not self-evident. No court has had the audacity to suggest that the phrase is clear and simple on its face. Inevitably, the courts have a difficult time explaining the meaning of the phrase. This realization exasperates the practitioner who finds the trial court perpetuating dialogue and instructions voiced in terms of reasonable certainty." James E. Hullverson, Jr., Reasonable Degree of Medical Certainty: A Tort et a Travers, 31 St. Louis U. L. J. 577, 588 (1987).
58 See, Miller v. Pool and Canfield, Inc., 800 S.W.2d 120, 124 (Mo. App. W.D. 1990) ("Further, we have found no definition of 'rationalized medical opinion' in either federal case law or federal statutes and regulations. Likewise, an extensive research of Missouri cases and legal periodicals has produced no definition of 'a reasonable medical certainty,' and, therefore, we apply the common everyday meanings of both terms to ascertain their definitions"). 800 S.W.2d 125.
59 417 S.W.2d 120 (Mo. App. E.D. 1967).
60 385 S.W.2d 803 at 804.
61 471 S.W.2d 120 at 125.
62 Marcia Boumil and Clifford Elias, The Law of Medical Liability in a Nutshell (West Pub. 1995).
63 Boumil and Elias, The Law of Medical Liability in a Nutshell, p. 125-26 (West Pub. 1995).
64 National Institute for Trial Advocacy.
65 Irving Younger, Expert Witnesses, 48 Ins. Counsel J. 267, 277 (1981).
66 State v. Moore, 952 S.W.2d 812, 813 (Mo. App. E.D. 1997).
67 Howard v. Missouri State Bd. of Education, 913 S.W.2d 887, 890 (Mo. App. S.D. 1995).
68 Carmody v. St. Anthony's Med. Ctr., 829 S.W. 2d 654, 657 (Mo. App. E.D. 1992).
69 Yoos v. Jewish Hosp. of St. Louis, 645 S.W.2d 177, 185 (Mo. App. E.D. 1982).
70 Sanders v. Hartville Milling Co., 14 S.W.3d 188, 195 (Mo. App. S. D. 2000).
71 State v. Sager, 600 S.W.2d 541, 564 (Mo. App. W.D. 1980).
72 Coppedge v. Missouri Highway and Transp. Comm'n, 809 S.W.2d 164, 167 (Mo. App. E.D. 1991).
73 See, e.g., V.B. v. N.S.B., 982 S.W.2d 691, 693 (Mo. App. E.D. 1998) (reasonable medical or scientific certainty); State v. Link, 25 S.W.3d 136, 148 (Mo. banc 2000).
74 Fierstein v. DePaul Health Center, 24 S.W.3d 220, 227 (Mo. App. E.D. 2000).
75 Kinealy v. Southwestern Bell Tel. Co., 368 S.W.2d 400, 403 (Mo. 1963).
76 Angoff v. Holland-America Insurance Co., 937 S.W.2d 213, 219 (Mo. App. W.D. 1996).
77 Thomas A. Mauet, Fundamentals of Trial Techniques, 2nd ed. 1988, Little Brown and Company, page 121 (paragraph 12).
78 John S. Sandberg, Expert Testimony on Causation in a Wrongful Death Case: Should "Reasonable Medical Certainty" be Necessary to Make a Submissible Case?, 36 Mo. L. Rev. 127, 132 (1971).
79 Id.
80 Id.
81 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380, 498 (1998) (footnotes omitted).
82 "The standards for medical witnesses are more biased still; the hermit clinician can usually testify to anything if he holds an M.D. and is willing to mumble some magic words about 'reasonable medical certainty.'" Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom,177 (BasicBooks) (1991).
83 See, e.g., State v. Kleypas, 602 S.W.2d 863, 869 (Mo. App. S.D. 1980).