"Doctor, do you have an opinion to a degree of reasonable medical certainty as to...?" Every day in depositions and trials, counsel frame questions in this ritualistic way to elicit opinions from physicians about medical issues. The formulation has been so commonly used for so long that it is reflexive for many of us. The practice raises two questions: "What does 'reasonable medical certainty' mean under New Hampshire law?" and "Does it enhance communication between lawyer and witness?"

The phrase "reasonable medical certainty" has no basis in the New Hampshire Rules of Evidence or case law. The Supreme Court has cited the phrase only when discussing the following proceedings: See State v. Gamester, 149 N.H. 475 (2003) (discussing trial testimony); Randall v. Benton, 147 N.H. 786 (2002) (discussing trial testimony); Appeal of Stetson, 138 N.H. 293 (1994) (discussing trial testimony); Appeal of Briand, 138 N.H. 555 (1994) (discussing decision of New Hampshire Department of Labor Compensation Appeals); Bartlett Tree Experts Co. v. Johnson, 129 N.H. 703 (1987) (discussing Master's Report); State v. Abbott, 127 N.H. 444 (1985) (discussing trial testimony); Jackson v. Emile J. Legere, Inc., 110 N.H. 252 (1970) (discussing trial testimony). These cases reveal, but do not explain the entrenchment of the practice. Counsel who employ the phrase do so out of habit or because they like the way it sounds, not on account of a legal requirement.

The usage has become so ingrained that counsel often ask non-physician experts to state opinions in terms of "reasonable [insert discipline] certainty," such as "reasonable engineering certainty," "reasonable accounting certainty," "reasonable rocket science certainty," etc. The phrasing suggests that the expert has a high level of confidence or certitude in the opinion and by implication that it is probably true, an important point that should be (expressly) elicited from any expert in a civil case.

Even if the phrase is construed as referring explicitly to the probability that the opinion is true, its meaning is unclear. "[A]lthough attorneys ritualistically intone the phrase, no one knows what it means! No consensus exists among judges, attorneys, or academic commentators as to whether 'reasonable medical certainty' means 'more probable than not' or 'beyond a reasonable doubt' or something in between." Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Md. L. Rev. 380 (1988). Our Court has addressed the meaning of the phrase only once and obliquely at that. In Appeal of Briand, 138 N.H. 555 (1994), the Court considered a Department of Labor Compensation Appeals Board denial of compensation benefits. The board denied the claim because the claimant had failed to prove with "'reasonable medical certainty' that her employment caused aggravation to a pre-existing medical condition." Id., p. 557. On appeal, the Court reversed, stating that "the board's use in its original decision of the 'reasonable medical certainty' standard was erroneous because it is a higher standard" than preponderance of the evidence. Id. The Court did not cite any authority or define the term other than to say that it is a standard "higher" than the one for civil proof.

In The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty, 57 Md. L. Rev. 380 (1988), Professor Lewin traces the origins of the phrase and attributes its widespread use in large part to the 1935 edition of Trial Techniques by Irving Goldstein. Id., p. 389. According to Professor Lewin, the phrase has gained universal acceptance, not as a result of critical analysis, but rather as a result of random historical events. Id., p. 389-93.

The fundamental problem with the phrase is that its meaning is unclear. An expert untravelled in the language of lawyers may be reluctant to testify to an opinion believed to be just probably true in response to a question asking for "reasonable... certainty." "[P]hyscian witnesses frequently assume that the phrase means something more than a probability; they often assume it indicates a near absolute certainty, on the order of 80 percent or even 99.99 percent probability corresponding to the standard of scientific proof that rules out the null hypothesis with 95 percent confidence." Id., pp. 402-03. Indeed, at least one professional forensic organization instructs its members that "reasonable certainty" is a standard higher than "probable." The American Board of Forensic Odontology defines "probable" as "more likely than not" and "reasonable medical certainty" as "virtual certainty; allows for the possibility of another cause, however remote." See www.abfo.org. The phrase invites confusion.

Counsel should frame questions in the way that best communicates to the witness and the jury the intended evidence. This is particularly true of the opinions of a plaintiff's expert, which may determine whether the plaintiff can reach the jury and prevail. While our law does not require that an expert use specific words or phrases, [Bronson v. The Hitchcock Clinic, 140 N.H. 798 (1996)], it is important, indeed, critical in medical negligence and some other cases, that expert opinions plainly establish that the plaintiff has sustained his or her prima facie burden. For that reason, questions are best framed with terms such as "probable" and "more likely than not," as opposed to "reasonable medical certainty." The advantages are obvious: the questions are framed consistent with the standard of proof and clearly seek the evidence required. Framed in this way, the testimony is more likely to resonate with the Court when it rules on a motion for directed verdict and with the jury when it recalls the evidence in light of the Court's instructions.

Ralph Holmes is an attorney with McLane Graf Raulerson & Middleton in Manchester.

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