In its opinion filed on February 22, 2018, the Supreme Court of Virginia (“Virginia Supreme Court”) ruled that the circuit court abused its discretion when it refused to qualify the Virginia medical malpractice plaintiff’s only proposed expert witness under Code § 8.01-581.20. In a case where treatment of a newborn with respiratory distress was at issue, the board-certified pediatrician/neonatologist proffered by the plaintiff met both the knowledge and active clinical practice requirements of Code § 8.01-581.20, and it was an abuse of discretion to disqualify this witness from testifying.
In the case the Virginia Supreme Court was deciding, a newborn was born with aperture stenosis, or nasal stenosis, that required a stenting procedure to increase the size of her nostrils. However, the diagnosis was not timely made and the newborn suffered a hypoxic brain injury as a result.
The baby’s mother subsequently filed a Virginia medical malpractice case against the defendant on-call pediatrician and the hospital where the birth took place. The Virginia medical malpractice complaint alleged that the defendant on-call pediatrician was negligent in numerous ways, including that she failed to adequately assess the newborn’s respiratory distress; that she failed to transfer the newborn to a higher care facility sooner; and, that she failed to secure the newborn’s airway sooner, which resulted in the newborn suffering a severe brain injury that substantially impairs her physical and cognitive abilities, requires extensive rehabilitation, and causes physical and mental anguish.
The plaintiff designated only one standard of care and causation expert witness: a board-certified, Virginia-licensed pediatrician with 26 years of experience who is a neonatologist and practices in hospitals in Maryland and Washington, DC. The defendants moved to exclude the plaintiff’s expert on the ground that she failed to meet the two-prong test of Code § 8.01-581.20(A), which governs qualification of medical malpractice expert witnesses, arguing that the plaintiff’s expert did not meet the “knowledge prong” because the facts “don’t demonstrate it and they can never demonstrate it because she has never been in the shoes of [the defendant pediatrician]” and further arguing that the plaintiff’s expert also did not meet the “active clinical practice prong,” which requires that an expert has engaged in the actual performance of the procedure at issue within one year of the allegedly negligent conduct, noting that the plaintiff’s expert (i) had never worked in a hospital without a NICU; and had not, during the relevant time, (ii) provided hands-on care to a baby requiring an oral airway; or (iii) cared for an infant with an oxyhood; and (iv) had never had to decide when to transfer a patient such as the plaintiff’s newborn.
The circuit court sustained the defendants’ objection and excluded the plaintiff’s expert from testifying as an expert witness. Thereafter, the defendants moved for summary judgment, arguing that because the plaintiff’s designated expert was the plaintiff’s only expert, the plaintiff was unable to establish that the defendants breached the standard of care, or that any breach was the proximate cause of the baby’s injuries. The circuit court granted the defendants’ motion for summary judgment, and the plaintiff appealed.
The Virginia Supreme Court stated that in an action alleging medical malpractice, a trial court’s exclusion of a proffered expert opinion will be overturned when it appears clearly that the witness was qualified. Code § 8.01-581.20(A) states, “Any health care provider who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of practice in which he is qualified and certified.”
The Virginia Supreme Court stated, “It is undisputed that [the plaintiff’s expert] was a board-certified pediatrician licensed in Virginia at the time that [the baby] was allegedly injured by [the defendant on-call pediatrician’s] negligence, and that [the defendant] was practicing as a pediatrician at the time of the alleged negligence. Accordingly, the statutory presumption that [the plaintiff’s expert] knew the standard of care for [the defendant’s] specialty field of medicine clearly applied.”
Nonetheless, under Code § 8.01-581.20(A), a witness to whom the presumption applies may be disqualified as an expert witness if he does not meet either of two statutory requisites: the “knowledge requirement” (“demonstrate expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards”) and the “active clinical practice requirement” (“active clinical practice in either the defendant’s specialty or related field of medicine within one year of the date of the alleged act or omission forming the basis of the action”).
The Virginia Supreme Court held that although the defendants claimed that the plaintiff’s expert’s testimony was without basis, there was no evidence to counter the presumption that the plaintiff’s expert was knowledgeable concerning the standard of care in a medical specialty in which she was board-certified to practice.
The Virginia Supreme Court stated that there is clear evidence that the plaintiff’s expert had an active clinical practice during the relevant time period; however, there is a question of fact as to whether that active clinical practice was in pediatrics or a related field of medicine. The Virginia Supreme Court stated that in applying the “related field of medicine” test for the purposes of § 8.01-581.20, it is sufficient if in the expert witness’ clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same.
The Virginia Supreme Court stated for the plaintiff’s expert’s field to be related to the defendant’s specialty, the plaintiff’s expert need not have performed the actual procedure within one year of the alleged negligence, but she is required to have performed that procedure, at some point, in order to prove that her specialty is related to the defendant’s specialty, and she is also required to have been involved in active clinical practice in that related field within one year of the alleged negligence (Code § 8.01-581.20(A) does not set a minimum threshold amount of time a physician must spend in clinical practice to establish that such physician maintains an “active clinical practice”).
The Virginia Supreme Court held: “The record clearly demonstrates that within the one-year timeframe, [the plaintiff’s expert] was engaged in an ongoing clinical practice. That clinical practice involved the procedure that [the defendant] is alleged to have performed negligently, assessing and determining treatment for newborns with respiratory distress … Thus, the evidence presented was sufficient to show that [the plaintiff’s expert] had the active clinical practice, in pediatrics or a related field, required for her to testify as an expert witness in this case.”
The Virginia Supreme Court concluded: “In sum, the circuit court abused its discretion in refusing to qualify [the plaintiff’s expert] as an expert witness because there was evidence that she satisfied both the knowledge and active clinical practice requirements of Code § 8.01-581.20. Thus, the circuit court erred in entering summary judgment for [the defendant]. Accordingly, we will reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion.”
Source Holt v. Chalmeta, Record No. 161230.
If you or a loved one have been injured as a result of medical negligence in Virginia, you should promptly find a Virginia medical malpractice lawyer who may investigate your Virginia medical malpractice claim for you and represent you or your loved one in a Virginia medical malpractice case, if appropriate.
Visit our website or telephone us on our toll-free line in the United States at 800-295-3959 to be connected with medical malpractice attorneys in your state who may assist you with your medical malpractice claim.
Turn to us when you don’t know where to turn.