7.6 Preparing Plaintiff’s Expert for Deposition

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

7.6 PREPARING PLAINTIFF'S EXPERT FOR DEPOSITION

7.601 Need for Expert Testimony. In almost all medical malpractice cases, expert testimony is necessary to assist a jury in determining the defendant's appropriate standard of care and whether there has been a deviation from that standard. ⁷³ The deposition of the plaintiff's expert is, therefore, of critical importance. The expert's testimony is required in all but

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certain rare cases in which the alleged negligent acts or omissions clearly lie within the range of a jury's common knowledge and experience. ⁷⁴

7.602 Experts on Standard of Care and "Negligence."

A. In General. If the plaintiff's expert will be testifying on the standard of care, he or she must be aware of how Virginia defines negligence. Virginia Model Jury Instruction 35.000 states:

A healthcare provider has a duty to use the degree of skill and diligence in the care and treatment of a patient that a reasonably prudent healthcare provider in this State would have used under the circumstances of this case. If the defendant failed to perform this duty, then he/she was negligent.

In a medical malpractice action, the qualification of a witness as an expert on the standard of care is governed by section 8.01-581.20 of the Virginia Code. Under this statute, a physician is presumed to know the statewide standard of care in the physician's specialty or field of practice either if the physician is licensed to practice in Virginia or if the physician is licensed out-of-state but meets the educational and examination requirements for licensure in Virginia. Even with the benefit of the presumption, to qualify as an expert witness on the standard of care, the witness must have expert knowledge on the standard of care in the defendant's specialty and an "active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action." ⁷⁵ The Supreme Court of Virginia has referred to these two requirements as the "knowledge" requirement and the "active clinical practice" requirement.

There are statutory exceptions as to who may testify on the standard of care. For example, chiropractors, physician assistants, nurse practitioners, and podiatrists are not permitted to testify as expert witnesses against medical doctors. ⁷⁶

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B. "Knowledge" Requirement. With regard to the "knowledge" requirement, the proponent of the expert witness has the initial burden to show, among other things, that the specialty or field of medicine in which the expert is qualified and certified is the same as the defendant's specialty or a related field of medicine. This requirement can be shown by evidence that the standard of care, as it relates to the alleged negligent act or treatment, is the same for the proffered expert's specialty as it is for the defendant doctor's specialty.

C. Active Clinical Practice Requirement. In addition, to qualify as an expert, a person needs to engage in an active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action. The purpose of the requirement in section 8.01-581.20 that an expert have an active practice in the defendant's specialty or a related field of medicine is to prevent testimony by an individual who has not recently engaged in the actual performance of the procedures at issue in a case.

7.603 Experts on Proximate Causation. If the expert will be testifying on proximate causation, the expert must know how Virginia defines that concept. Virginia Model Jury Instruction 5.000 defines proximate cause as follows:

A proximate cause of an injury, damage, or death is a cause which in natural and continuous sequence produces the injury, damage, or death. It is a cause without which the injury, damage, or death would not have occurred. There may be more than one proximate cause of an injury, damage, or death.

Not just any expert may testify on proximate causation. An opinion concerning the causation of a particular physical human injury is a component of a diagnosis, which is part of the practice of medicine. ⁷⁷ In Combs v. Norfolk & Western Railway Co., ⁷⁸ the expert was a licensed psychologist, not a medical doctor. Because the expert was not a medical doctor, the Supreme Court of Virginia held that he was not qualified to state an expert medical opinion regarding the cause of the plaintiff's injury.

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In Velazquez v. Commonwealth, ⁷⁹ the Supreme Court of Virginia recognized an exception to the general rule that only a medical doctor may render an opinion regarding the cause of a physical human injury. There, in a trial on an indictment alleging rape, a Sexual Assault Nurse Examiner (SANE) qualified as an expert witness on the subject of sexual assault injuries. The record showed that the SANE had been a registered nurse for 26 years, had received special training to qualify as a SANE, and had examined approximately 500 victims of sexual assault. The court held, in relevant part, that although the SANE nurse was not a medical doctor, she was qualified under the facts presented to render an expert opinion concerning the "causation of injuries in the context of an alleged sexual assault." ⁸⁰

In John v. Im, ⁸¹ the Supreme Court of Virginia held that a licensed psychologist was not permitted to testify that the plaintiff sustained a mild traumatic brain injury in an automobile collision, because he was not a medical doctor.

In Hollingsworth v. Norfolk Southern Railway, ⁸² the Supreme Court of Virginia held that two licensed podiatrists were permitted to testify to the treatment they rendered the plaintiff but not to their opinions as to the cause of the plaintiff's injury, because by statute the practice of podiatry did not include rendering diagnoses. After Hollingsworth, the General Assembly amended the statutory definition of podiatry to include not only treatment but the "diagnosis" of foot conditions. ⁸³

7.604 Experts and Credibility Testimony. An expert witness may not testify regarding credibility. Rule 702(b) precludes such testimony, stating that "[e]xpert testimony . . . which opines on the credibility of another witness is not admissible." Virginia common law is just as clear: "An expert witness may not express an opinion as to the veracity of a witness because such testimony improperly invades the province of the jury to determine the reliability of a witness." ⁸⁴ Any question intended to elicit an opinion as to the

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veracity of another witness is improper. ⁸⁵ An expert witness may not express an opinion as to the veracity of a witness because such testimony improperly invades the province of the jury to determine the reliability of a witness, and even a question which indirectly comments on the truth of what another witness has stated runs afoul of this strongly-held doctrine. ⁸⁶

7.605 Non-Medical Doctor Experts. The General Assembly has passed several statutes that permit non-medical doctors to render diagnoses. For example, chiropractors are permitted to testify as expert witnesses concerning "etiology, diagnosis, prognosis, treatment, treatment plan, and disability," so long as that testimony remains within the scope of practice as defined in section 54.1-2900 of the Virginia Code. Similarly, mid-level providers such as physician assistants and nurse practitioners have come within the purview of this statute. In 2014, the General Assembly enacted a law permitting a properly qualified physician assistant to testify as an expert witness concerning "etiology, diagnosis, prognosis, treatment, treatment plan, and disability." ⁸⁷ This law was expanded to apply to nurse practitioners in 2015. However, neither physician assistants nor nurse practitioners are permitted to testify as experts against a physician in an action regarding the standard of care or against a health care provider regarding causation. Counsel should consult the Virginia Code and the Virginia Administrative Code when planning to have a non-medical doctor testify on the issue of causation.

7.606 "Specialized Knowledge" Versus Common Experience. An expert may not testify about matters in the common experience of the jury. Expert testimony is only admissible if "specialized knowledge" is required to "assist the trier of fact to understand the evidence." ⁸⁸ That is, if no specialized knowledge is required to decide an issue, then lay testimony is the only admissible testimony on that question. ⁸⁹ Because jurors are by definition

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already qualified to decide questions of ordinary negligence, such testimony invades the province of the jury. More specifically:

Expert testimony concerning matters of common knowledge or matters as to which the jury are as competent to form an opinion as the witness is inadmissible. Where the facts and circumstances shown in evidence are such that men of ordinary intelligence are capable of comprehending them, forming an intelligent opinion about them, and drawing their own conclusions therefrom, the opinion of an expert based upon such facts and circumstances is inadmissible. ⁹⁰

In Commercial Distributors, Inc. v. Blankenship, ⁹¹ the Virginia Supreme Court held that "whether, in the exercise of ordinary care, [the defendant's] personnel should have been more vigilant to monitor [the patient's] whereabouts after the decision had been made to hospitalize him is merely a question of the precautions a reasonably prudent person would have taken in like circumstances—a traditional jury issue...