Brief Summary: The short answer is that a doctor can not speculate about the need for future surgeries or the costs associated with such surgeries. Testimony from a doctor that amounts to speculation will be excluded by the trial court.
Analysis: In the recent Tennessee Court of Appeals decision of Sapinder Singh v. Larry Fowler Trucking, Inc., No. W2011-01986-COA-R3-CV, 2012 WL 3731562 (Tenn. Ct. App. 2012) the Court addressed whether the trial court’s exclusion of a doctor's speculative testimony about a future potential surgery and the cost for such surgery was proper. Singh at 1. Dr. Michael Jaffin was asked in his deposition whether the plaintiff would need additional surgery in the future. Singh at 2. The Appellate Court discussed the speculative nature of the testimony as follows:
In those portions of his testimony that were excluded from evidence, Dr. Jaffin testified that he would not “pretend to tell you what kind of surgery” Mr. Singh would require in the future, and that he could not “tell for sure” what these surgeries would cost. In fact, Dr. Jaffin testified that Mr. Singh would need further surgical evaluation, which he “would leave [ ] to a spine surgeon.” By his own admission, Dr. Jaffin is not at all certain as to what, if any, future surgeries will be medically necessary. Consequently, he is not qualified to testify as to what, if any, spinal surgeries Mr. Singh will need. As he testifies: “I can't tell you because I'm not a spine surgeon.” As such, Dr. Jaffin's testimony does not demonstrate a reasonable medical certainty concerning the need for future surgeries.
Concerning the costs of future surgeries, Dr. Jaffin testified that the costs would “be at least $300,000.” Later in his testimony, he opines that the costs would be “well over $200,000.” This testimony is also speculative. As noted above, Dr. Jaffin, by his own testimony, is not qualified to opine as to the specific surgeries that may be necessary and, because he is not qualified concerning the surgeries, he is likewise not qualified to testify as to the costs of the surgeries.
Singh at 7. In order to assess whether this testimony is admissible one must look at Tennessee Rules of Evidence 702 and 703 which requires a trial court to determine: "(1) whether expert testimony will substantially assist the trier of fact in determining a fact in issue; and (2) whether the facts and data underlying the testimony indicate a lack of trustworthiness." Singh at 5 (citing Tenn. R. Evid. 702; Tenn. R. Evid. 703). Decisions on the "admissibility, qualifications, relevance and competency of expert testimony [are] left to the sound discretion of the trial court." Singh at 5 (citing McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 263 (Tenn. 1997)).
The Appellate Court also noted that Dr. Jaffin was never asked whether his testimony was given to a "reasonable degree of medical certainty." Singh at 6. The Court noted that while "the use of the ‘magic language’ that the opinion is to a reasonable degree of medical certainty is not necessary for admissibility, the testimony must show, as a whole, that it is more probable than not that future surgery will be required." Singh at 6. As a result, the court concluded that Dr. Jaffin's testimony about the need for future surgery and the cost for this surgery was speculative and he was not qualified to testify on these issues at trial. The trial court therefore properly excluded this testimony.
This case shows how important it is to make sure that a physician is prepared prior to giving a deposition. Additionally, although, the "magic language" of "reasonable degree of medical certainty" is not necessary for admissibility, it certainly does not hurt. As a matter of course, attorneys should ask physicians to testify to a reasonable degree of medical certainty. Also, if key questions are addressed during the deposition, I recommend asking the physician whether specific responses are "to a reasonable degree of medical certainty". This is not a guaranteed formula for admission of the testimony, but it could be very helpful.