Can Healthcare Provider Defendants Be Forced to Give Standard of Care Testimony in Medical Malpractice Cases?

Published on: 11/09/2004

November 9, 2004

On November 5, 2004, the Virginia Supreme Court held in Smith v. Irving, Record No. 040349, that a trial court correctly refused to allow the plaintiff's attorney to cross-examine a defendant physician on issues related to the standard of care. While the result appears to bolster the ability of healthcare providers to defend themselves in malpractice suits, the reasoning employed by the Court in reaching this outcome is somewhat troubling. Healthcare providers should be aware of this new case and understand the limitations of the decision.

Under Virginia's Medical Malpractice Act, expert testimony is generally required to establish the prevailing standard of care for a healthcare provider in Virginia, a breach of the standard of care, proximate causation and damages. Every physician licensed in Virginia, including the defendant in a malpractice action, is presumed to know the standard of care applicable to his or her specialty. In many instances, plaintiffs in medical malpractice cases have attempted to use this presumption to turn defendant healthcare providers into expert witnesses against themselves by asking them standard of care questions in either a deposition or at trial.

Prior to Smith v. Irving, the Virginia Supreme Court had never dealt directly with the issue. However, Circuit Courts across Virginia have regularly dealt with the issue and come up with varying results. Many Circuit Courts have refused to permit a plaintiff's attorney to ask standard of care questions of a defendant healthcare provider in either depositions or at trial based on the theory that, unlike purely factual testimony, a party cannot be compelled to testify regarding expert matters. Other Circuit Courts have held to the contrary.

In Smith, the plaintiff's attorney attempted to cross-examine the defendant physician concerning what the standard of care required him to do. The physician's counsel objected and the trial court sustained the objection, stating that the plaintiff could not ask the doctor to be an expert witness against himself. After a jury verdict for the defendant, the plaintiff appealed the decision to the Supreme Court on the ground that the trial court should have permitted her attorney to cross-examine the defendant on the standard of care.

The Supreme Court upheld the trial court's decision, but not on the basis relied upon by the trial court. Rather than finding the plaintiff should not be permitted to cross-examine the defendant physician on his opinion of the standard of care, the Court simply found that the standard of care questions posed on cross-examination exceeded the scope of the defendant's direct examination. The Court noted that the defendant's attorney had elicited testimony from him during direct examination as to his thought process during the procedure at issue, what actions he took, the reasons for those actions and what other physicians do in similar circumstances. The Court, however, found that this testimony was factual in nature and did not touch upon the standard of care. Accordingly, the Court held that "[i]n the absence of any testimony on direct examination by a defendant physician addressing the standard of care, that physician's presumed knowledge of the standard of care does not render him subject to cross-examination on that issue."

While the Supreme Court clearly reached the right decision, the foundation for the decision leaves a lot of unanswered questions. First, would the Court's decision have been different if the plaintiff had called the defendant physician as an adverse witness? The scope of examination of an adverse witness is not necessarily limited and the Smith case leaves open the possibility that plaintiffs in future medical malpractice cases could call a defendant healthcare provider as an adverse witness and question her on the standard of care. Second, does the Smith case leave open the potential for the plaintiff's attorney to ask standard of care questions during the healthcare provider's deposition? There are strong arguments in favor of not permitting the plaintiff's attorney to ask such questions, but Smith provides no authority for the proposition since the Court decided the issue on much narrower grounds than the trial court.

The answers to both of these questions still provide fertile grounds for argument in the wake of this decision. Healthcare providers and their attorneys need to be aware of the implications and limitations of this case and anticipate the arguments necessary to protect the healthcare providers from being turned into expert witnesses against themselves.