Virginia Supreme Court Continues Permissive Approach to Expert Witness Qualification

Published on: 6/29/2004

June 29, 2004

Whether an opposing party's expert witness is qualified to render opinions is an issue in virtually all medical malpractice cases. If a party is successful in striking or excluding an opposing party's expert witness, it can often mean victory for that party. The standard for determining whether a prospective standard of care expert witness is qualified to testify is set forth in Virginia Code §8.01-581.20. In order for a witness to qualify to give expert testimony on the standard of care, the expert must: (1) demonstrate expert knowledge of the standards of the defendant's specialty; and (2) demonstrate expert knowledge of what conduct conforms or fails to conform to the standards of the defendant's specialty; and (3) have had an active clinical practice in either the defendant's specialty or a related field of medicine within a year of the alleged negligence.

In a series of cases, the Supreme Court has held that it will reverse a trial court's holding that a witness is not qualified to testify as an expert when it is clear from the record that a witness possesses sufficient knowledge, skill, or experience to make him competent to testify as an expert on the subject matter at issue.

In a recent decision, the Virginia Supreme Court again confirmed its holdings regarding the qualifications of expert witnesses in medical negligence cases. The opinion, styled Marian B. Christian v. Surgical Specialists of Richmond, Ltd., et al. , was issued on June 10, 2004.

The case involved allegations that the physician perforated the plaintiff's colon during a laparoscopic gynecological procedure performed by the physician to remove a large pelvic cyst. Specifically, the plaintiff alleged that the physician was negligent in failing to inspect her colon and to repair the perforation. The physician denied he breached the applicable standard of care in his treatment of the plaintiff.

During a jury trial, the plaintiff called Dr. Frederick A. Gonzalez, who had reviewed the hospital records regarding her surgery, as her only expert witness. Whether Dr. Gonzalez qualified as an expert, pursuant to the provisions of Virginia Code §8.01-581.20, thus became an issue for the trial court to resolve.

In response to questioning by counsel for both parties, Dr. Gonzalez testified that at the time of trial, he was an obstetrician/gynecologist licensed to practice in California and New York. He specialized in maternal-fetal care, a sub-specialty of obstetrics/gynecology, and maintained an active clinical practice in gynecological surgery. Dr. Gonzalez estimated that he performed "hundreds" of exploratory laparotomies and hysterectomies, and numerous cystectomies.

Dr. Gonzalez further testified that he was aware of the standard of care applicable to basic surgical procedures in Virginia because he had discussed laparoscopic and abdominal surgical procedures with "other surgeons in Virginia" while attending meetings and seminars held in Virginia.

After some additional testimony by Dr. Gonzalez, the trial court ruled that Dr. Gonzalez had not demonstrated that he was "familiar with the statewide standard of care" in Virginia, and thus, was not qualified to testify as an expert in the case pursuant to Va. Code §8.01-581.20.

The Supreme Court disagreed with the defendant-physician's contention that the plaintiff failed to establish that Dr. Gonzalez was familiar with the Virginia standard of care applicable in this case because Dr. Gonzalez was relying solely upon his familiarity with a nationwide standard of care. The Court determined that Dr. Gonzalez "affirmatively testified that he had gained his knowledge of the Virginia standard of care through discussions with physicians in Virginia, and while attending seminars and meetings in Virginia concerning laparoscopic surgery." The Court reversed the trial court, holding that the trial court was not entitled to ignore the "uncontradicted testimony" of Dr. Gonzalez concerning his knowledge of the Virginia standard of care applicable to the alleged malpractice in this case or how he obtained that knowledge. This decision is consistent with other recent opinions from the Supreme Court which have made it increasingly difficult to prevent a plaintiff's expert from qualifying to testify regarding the standard of care.