Requirement of "Reasonable Degree of Medical Certainty" Requires No Recital of "Magic Words," Says Nebraska Supreme Court

The sufficiency of expert physician testimony is sometimes challenged because the witness has not stated that his or her opinions are given to a "reasonable degree of medical certainty." Recital of that magic language by the expert can obviously forestall such objections. But some experts have been known to balk, despite a high level of confidence in their opinions, because to their understanding, "certainty" connotes indubitability and does not come in "degrees."

Whether the expert is required to intone the magic language is a question of substantive law on which the states have shown some variability. The better-reasoned authority, in our view, holds that the standard governs the substance of the testimony, not the language in which the testimony must be given. Last week, the Nebraska Supreme Court issued an opinion, in a child abuse case, reaffirming its adherence to that view. See State v. Kuehn, No. S-05-888 (Neb. Mar. 16, 2007).