Marsingill v. O'Malley,
No. S-9859 (Alaska Nov. 22, 2002)

A patient who previously had had gastric surgery sued her physician for malpractice after she called him one night due to abdominal pain and he told her that she could go to the emergency room, but did not tell her that she should seek emergency medical treatment or provide her with examples of what could be causing her pain. The patient decided not to go to the emergency room and was later found unconscious and suffered a permanent injury. The patient claimed that the physician failed to give her sufficient information over the phone for her to make an intelligent treatment decision. A jury ruled in favor of the physician and the patient appealed.

One of the primary issues on appeal was whether the patient should have been permitted to introduce evidence that the physician was not board certified and that he had repeatedly failed his board certification examination. The Alaska Supreme Court held that the trial court had not abused its discretion in excluding that evidence after making a determination that the probative value of that evidence would have been outweighed by its potential to prejudice or confuse the jury. However, the court did remand the case for a new trial after finding that the trial court should have instructed the jury to analyze the patient's claims on the basis of a "reasonable patient" standard rather than on the basis of expert physician testimony of what constituted the appropriate standard of care.