5.3 Determining the Types and Number of Experts Required

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

5.3 DETERMINING THE TYPES AND NUMBER OF EXPERTS REQUIRED

5.301 Limitation on Number of Experts. Each party may designate, identify, or call to testify at trial no more than two expert witnesses per medical discipline on any issue presented. ¹¹ The court also has discretion to limit a party to one expert per issue if the opinion evidence is needlessly cumulative. ¹²

5.302 Standard of Care Experts.

A. In General. After interviewing the client and obtaining medical records, counsel's first task in screening a case is to determine whether the health care provider breached the standard of care. To do so, counsel must find an expert who possesses the necessary qualifications and who has knowledge of the standard of care. The qualifications, knowledge, and standard of care requirements are set out in section 8.01-581.20 of the Virginia Code.

B. Applicable Standard of Care.

1. General Rule: Statewide Standard of Care. Although the majority of jurisdictions throughout the United States and the medical community itself apply a national standard of care in medical malpractice cases, Virginia adheres to a statewide standard of care in these cases. Section 8.01-581.20(A) provides that "the standard of care by which the acts or omissions are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth."

2. Local Standard of Care. Section 8.01-581.20 also sets out a limited exception to the statewide standard of care. A local community

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standard, or that of a similar community, must be applied if a party proves, by a preponderance of the evidence, that the available health care services and health care facilities and the customary local practices are such that it would be more appropriate to apply a local standard than a statewide standard. ¹³ This might apply in a rural setting where no sophisticated imaging modalities or specialized physicians are available.

3. National Standard of Care. Although the Supreme Court of Virginia held, in Bly v. Rhoads, ¹⁴ that Virginia is not a national standard of care state and it is for the General Assembly to decide whether a national standard of care should apply, an expert may testify that the Virginia standard of care is consistent with a national standard of care, if one exists. ¹⁵

5.303 Using Subsequent Treaters to Screen Cases. In making the initial decision whether to take a medical malpractice case, particularly a surgical misadventure, radiology misread, or failure to timely diagnose, it is often worthwhile for counsel to talk to the subsequent treating physician to gain an impression of whether the previous care was negligent. Although some treating physicians will not talk to plaintiff's counsel, many are upset by how their patients have been treated and are willing to help on an "off the record" basis. At a minimum, meeting with a subsequent treating physician may prevent that physician from lending assistance to the opposing side and will provide insights into that physician's strengths and weaknesses as a witness.

5.304 Qualifications for Standard of Care Experts.

A. Statutory Qualifications. An expert must, ultimately, qualify as a witness in order to certify that the case has merit and to testify. There is a two-pronged inquiry for deciding whether an expert will qualify to testify on the standard of care: (i) the expert's knowledge and (ii) the nature of his or her clinical practice. Section 8.01-581.20(A) of the Virginia Code provides that a witness may testify as a standard of care expert if the witness (i) demonstrates expert knowledge of the standards of the defendant's specialty and of what conduct conforms or fails to conform to those standards; and (ii) has had an active clinical practice in either the defendant's specialty

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or a related field of practice within one year of the date of the alleged act or omission on which the action is based.

B. Knowledge Requirement.

1. In General. Under section 8.01-581.20, there are two bases under which a physician is presumed to know the standard of care for his specialty or field of practice: (i) a Virginia licensed physician is presumed to know the standard of care in his or her specialty; and (ii) a physician licensed in another state is presumed to know the Virginia standard of care for his or her specialty if the physician meets the educational and examination requirements for licensure in Virginia. If neither situation applies, the expert nonetheless may be qualified to testify if he or she possesses sufficient knowledge, skill, or experience to establish competency to testify as an expert on the subject matter at issue. ¹⁶

The knowledge requirement does not demand an identical level of education or degree of specialization; rather, it can be met by providing evidence that the standard of care for the alleged negligent act or treatment is the same for the expert's specialty as it is for the defendant's specialty. Thus, the inquiry focuses on the expert's knowledge of, and experience with, the specific procedure at issue, not on the expert's professional qualifications relative to those of the defendant. ¹⁷

Familiarity with the standard of care is established by showing that the expert has similar professional experiences to those of the defendant, including medical education and training, nature of clinical practice, board certifications, and memberships in professional associations.

Whether a witness is qualified to express an opinion as an expert is a question largely within the sound discretion of the trial court. A decision to exclude a proffered expert opinion will be reversed on appeal only when it clearly appears that the witness was qualified. The expressed belief of a witness that he is an expert does not ipso facto require his qualification. The facts must show that the witness possesses sufficient knowledge, skill, or

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experience to be competent to testify as an expert on the subject matter of the inquiry. ¹⁸

Knowledge may derive from study, experience, or both. ¹⁹ Therefore, as a preliminary matter, counsel should determine the field of practice or specialty of the defendant and search for standard of care consultants in the same specialty who have ample knowledge of the statewide standard of care. Knowledge of the statewide standard requirement, however, does not restrict counsel's search to Virginia health care providers.

2. Presumptions.

a. Virginia Licensed Health Care Providers. Section 8.01-581.20 provides that a Virginia-licensed health care provider "shall be presumed to know the statewide standard of care in the specialty or field of practice in which he is qualified and certified." Since the statute specifically refers to "certified" in the conjunctive with "qualified," the presumption arguably applies only to board-certified physicians and other healthcare providers who undergo a certification process. Moreover, the presumption arguably only applies to knowledge of the standard of care in the same specialty in which the expert is board-certified. Although there are situations in which an expert witness in a related field of practice may be allowed to testify against a defendant in a different specialty if they perform the same medical task and if the expert has actual knowledge of the defendant's specialty, the presumption in section 8.01-581.20 may not apply. For example, an out-of-state board-certified orthopedic surgeon who performs spinal surgery may not be presumed to know the standard of care for a Virginia neurosurgeon performing the same spinal surgery because he or she is not board-certified in the same specialty as the defendant. The orthopedic surgeon would be presumed to know the Virginia orthopedic standard, but additional evidence would be required to show that the orthopedic and neuro-surgical standards were the same. ²⁰

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For purposes of qualifying the witness, it is less risky for counsel to engage the services of a Virginia health care provider rather than an out-of-state one, and there are some Virginia health care providers who are willing to review cases for either side. It is worthwhile to search for these witnesses. As a practical matter, however, these witnesses are often unavailable to the plaintiff since doctors may be hesitant to testify against their local colleagues. Plaintiff's counsel, however, need not be discouraged by cool responses from local physicians requested to review a case, because the statute provides an alternative to Virginia-based experts.

b. Health Care Providers Licensed in Other States. Out-of-state experts can qualify under the Virginia standard of care in two ways: (i) by demonstrating actual knowledge of the Virginia standard of care, or (ii) by qualifying for a statutory presumption. Section 8.01-581.20 (amended in 2015 to expand to health care providers beyond physicians) provides that a health care provider who is licensed in another state and meets the educational and examination requirements for licensure in Virginia is also presumed to know the Virginia standard of care in the "specialty or field of practice in which he is qualified and certified." Again, this presumption may only apply to the standard of care in which the expert is board certified.

There are two ways to establish that an out-of-state expert qualifies for the presumption. The expert may review the Virginia licensure requirements and then testify that he or she meets those requirements. ²¹ The far better way to qualify an expert for the presumption is to obtain a letter from the Virginia Board of Medicine certifying that the expert would meet the educational and examination requirements for Virginia licensure if he or she chose to apply. ²² Most certified experts qualify to get this letter. The most frequent exceptions are where the expert completed his or her residency training outside the U.S. or did not take an...