Marsingill v. O’Malley

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.