Med Mal Experts Requirements Clarified Point of Law Alert

Published on: 1/22/2008

Points of Law: Your News and Opinion Connection to Our Law Firm

Colleen Gentile, Healthcare Attorney Colleen M. Gentile, Esq.

Virginia Supreme Court
Clarifies Requirements
for Medical Malpractice Experts

Two recent decisions by the Virginia Supreme Court addressed the necessity and qualifications of experts in medical malpractice cases. Each decision gives further support to a long standing principle of Virginia medical malpractice law: (1) that a standard of care expert is not required in a medical malpractice case where the allegations of negligence are within the common knowledge of the jury (Coston v. Bio-Medical Applications), and (2) a standard of care expert must have an "active clinical practice" within the defendant's specialty or a related field of medicine in order to testify (Lloyd v. Kime).

In Coston v. Bio-Medical Applications, Record No. 062449 (January 11, 2008), plaintiff alleged that defendant breached the standard of care by placing her in a defective chair for a kidney dialysis treatment, from which she fell and sustained injury. Plaintiff failed to identify experts on the issue of the standard of care in accordance with the Court's Scheduling Order, and defendant filed a Motion for Summary Judgment on that basis. The Circuit Court agreed with the defense, finding that expert testimony was required, and granted the Motion for Summary Judgment.

On appeal, plaintiff relied on what has been come to be known as the "Beverly exception," that is, the holding in Beverly Enterprises v. Nichols, 247 Va. 264 (1994). In Beverly , the Court stated that in certain rare instances, expert testimony is not necessary in a medical negligence case where the allegations of negligence clearly lie within the range of the jury's common knowledge and experience. In that case, the family of an Alzheimer's patient who was unable to eat unassisted sued her nursing home after she choked on food that was left for her to eat unsupervised. The Court held that the issue of whether it was negligent to leave a tray of food for this patient, who was unable to eat unassisted, was an issue with the jury's common knowledge and experience. The Virginia Supreme Court had handed down similar rulings both before and after Beverly in Jefferson Hospital, Inc. v. Van Lear and Dickerson v. Fatehi (holding that expert testimony was not needed as the standard of care issue was in the common knowledge of the jury).

The holding in Coston echoes what the Virginia Supreme Court has already said in Beverly , Dickerson, and Jefferson Hospital , and provides plaintiffs with an additional fact pattern in which to invoke the "Beverly exception."  While extending the scope of the Beverly exception, the Coston holding will not diminish the need for plaintiffs to obtain proper expert support in the majority of medical malpractice cases. However, it is notable that Coston is the first decision handed down by the Court in over ten years wherein the Court has held that the facts were such that a lay jury was capable of understanding the standard of care without the benefit of expert testimony. We can only hope that this opinion is not a sign that the Court is becoming more liberal with regard to allowing plaintiffs to circumvent the requirement for expert support in a medical malpractice case.

On the same day, the Virginia Supreme Court handed down its decision in Lloyd v. Kime, Record No. 070190. In that case, the Court addressed the requirement set forth in Va. Code Section 8.01-581.20 that an expert witness must have an active clinical practice in the defendant's specialty or a related field of medicine within one year from the date of alleged negligence in order to qualify to testify regarding the standard of care.  The defendant physician in Lloyd was an orthopedist who had performed spinal surgery on the plaintiff. Plaintiff alleged, among other things, that the performance of the surgery and the post-operative care rendered by the defendant were below the standard of care. Plaintiff designated a single expert on the standard of care and causation, a neurologist. Plaintiff's injury was sustained in 2001; the neurologist had not performed spinal surgery since 1997. Defendant moved to exclude the testimony of plaintiff's expert on the grounds that he did not have an active clinical practice in the same or a related field of medicine (orthopedics) as required by Va. Code Section 8.01-581.20.

The Court held that as there was no evidence that plaintiff's expert had performed spinal surgery since 1997, plaintiff's expert had no active clinical practice (within one year of the alleged negligence) performing spinal surgery, and as such was not qualified to testify regarding intra- operative negligence.However, plaintiff's expert did present evidence that as a neurologist, he followed patients post- operatively, and had done so within a year of the alleged negligence. As there was evidence of overlap between an orthopedist's practice and a neurologist's practice with regard to post-operative care (and within the appropriate time frame), the Court found plaintiff's expert qualified to testify regarding the post-operative standard of care.

Finally, the plaintiff argued that the trial court had erred in excluding plaintiff's expert opinion on the issue of causation. The Virginia Supreme Court agreed, stating that the active clinical practice requirement of Va. Code Section 8.01-581.20 only pertains to whether an expert is qualified to speak to the standard of care; it does not speak to an expert's qualification to testify regarding causation.

The holdings in Coston and Lloyd underscore what defense attorneys and health care providers have known for some time--expert witnesses are critical in medical malpractice cases, and continue to be a focus of the Virginia Supreme Court.

For more information about Coston and Lloyd and their potential impact on litigation in Virginia, please contact Colleen M. Gentile at (703) 893-3600 or

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Disclaimer: This alert appears for general information purposes only. The information it contains does not consititute legal advice. While we endeavor to provide information that is accurate at the time of publication, the law differs in various jurisdictions and is subject to change at any time.