5.2 Is an Expert Needed?

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

5.2 IS AN EXPERT NEEDED?

5.201 General Rule: Establishing a Prima Facie Case. With limited exceptions, to establish a prima facie case of medical malpractice the plaintiff must introduce expert testimony on standard of care, deviation from the standard of care, causation, and damages. ¹ The types and number of experts needed will vary depending on the medical issues involved, the number of contested issues, and financial considerations. The defendant, when possible, will attempt to match the plaintiff expert-for-expert and will often try to outflank the plaintiff by designating an expert in a new specialty not included in the plaintiff's designation of expert witnesses.

5.202 Exceptions to the General Rule: When Expert Witnesses May Not Be Needed.

A. Negligence Within the Common Knowledge of Laymen. There are exceptions to the general rule that expert witnesses are necessary to prosecute a medical negligence case, such as the rare instance in which a

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health care provider's act or omission is clearly negligent within the common knowledge of laymen. ²

B. The Res Ipsa Loquitur Exception. The doctrine of res ipsa loquitur establishes a rebuttable presumption of the defendant's negligence upon proof that the means causing the injury were in the defendant's exclusive control and that the injury was one that ordinarily does not happen in the absence of negligence. For example, no expert testimony is required to establish a prima facie case of negligence where a foreign object is left in a patient after an operation. ³

In medical malpractice cases, however, Virginia courts have severely limited the application of the res ipsa loquitur doctrine because patients can be injured despite receiving the best medical care. A bad outcome does not necessarily lead to an inference of negligence.

The res ipsa loquitur doctrine has been permitted when multiple medical defendants exercise control over medical instruments that cause an unintended injury during a surgical procedure. In Hayes v. Jeffrey-Coker, ⁴ the plaintiff could resort to the doctrine of res ipsa loquitur to establish a prima facie case of medical negligence when the patient's face was burned during abdominal surgery. The issue was how the plaintiff sustained a burn to a part of her body that was not involved in the abdominal surgery. Obviously, the plaintiff could not testify as to the cause of her injury because she was unconscious during the procedure. Multiple defendant health care...