9.19 Cross-examination of the Plaintiff’s Experts

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

9.19 CROSS-EXAMINATION OF THE PLAINTIFF'S EXPERTS

9.1901 Standard of Care and Causation.

A. Qualifications. In all but the rarest medical malpractice cases, the plaintiff must produce qualified expert testimony to establish a prima facie case. ¹¹³ Particularly in state court, where there will be a limited record on which to rely for summary judgment, the timing of challenging plaintiff's lack of an expert should be considered. In Dickerson v. Fatehi, ¹¹⁴ the trial court granted summary judgment for all of the defendants because of the lack of expert testimony, but the Supreme Court of Virginia determined, at least for two of the defendants, "that the record has not been developed sufficiently to enable either the trial court or this Court to determine that the alleged negligence does not lie outside a jury's common knowledge and experience so that expert testimony is necessary." ¹¹⁵

To find a physician who will criticize a local physician, plaintiff's attorneys are frequently forced to look out of town, or even out of state. Going out of state exposes the unwary plaintiff's attorney to the risk that the expert,

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though otherwise qualified in the medical specialty of the instant case, will not qualify in a Virginia court as an expert in the requisite standard of care.

Virginia has a statutory statewide standard of care. ¹¹⁶ In Black v. Bladergroen, ¹¹⁷ the court declined to adopt an express national standard of care. However, section 8.01-581.20 of the Virginia Code states that "any person who, but for the lack of a Virginia license, would be defined as a health care provider [under Virginia law], provided that such person is licensed in some other state of the United States and meets the educational and examination requirements for licensure in Virginia," is entitled to a presumption that the person knows the Virginia statewide standard of care "in the specialty or field of practice in which he or she is qualified and certified." While this statutory presumption is subject to rebuttal, section 8.01-581.20 clearly expresses a legislative intent to favor admissibility of testimony from medical experts, including those from out-of-state. ¹¹⁸

Finally, even a Virginia health care provider cannot qualify as an expert on the standard of care unless he or she has had an active clinical practice in the same or a related field of medicine as the defendant within one year of the alleged malpractice. ¹¹⁹ The question of whether an active clinical practice is in the same or related field of medicine is answered by reference to the "relevant medical procedure," which may not be the specific procedure the defendant physician performed. ¹²⁰ An aggressive defense attorney can often find differences between the practices of the defendant and the plaintiff's expert, which can make plaintiff's counsel nervous, because even if the expert is allowed to testify, defense counsel may be able to undercut the jury's view of that expert.

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In Lloyd v. Kime, ¹²¹ a neurologist was found not qualified to testify against a neurosurgeon on certain issues. The Virginia Supreme Court made clear in Kime that motions in limine to exclude the plaintiff's experts that are essentially summary judgment motions cannot be based on deposition testimony where the plaintiff objects. ¹²²

Further, even a witness who is board certified in the defendant's specialty will be precluded from testifying regarding the standard of care if she has not maintained an active clinical practice in the defendant's field or a related field of medicine within one year of the alleged malpractice. ¹²³ This requirement is enforced with rigor, especially against defense experts. In Hinkley v. Koehler, the Supreme Court of Virginia found that an obstetrician/gynecologist with 33 years of experience delivering babies was not qualified to render standard of care testimony in an obstetrics case on behalf of the defendant because the physician had given up "hands-on delivering obstetrics" three years before the alleged malpractice. ¹²⁴ Although the expert actively taught obstetrics to residents and medical students and actively consulted in high-risk pregnancies, the court found that "he had not, as a teacher and consultant . . . provided direct patient care for any pregnancy" and thus had not maintained an active practice in obstetrics. ¹²⁵

B. Bias. Most plaintiffs' experts will at some point have "gotten the word out" that they are available to testify against other physicians for a fee. ¹²⁶ Thus, in most cases, the expert has a history of testifying. If the expert's history is predominately for the plaintiff, he or she can be attacked as being biased. If the expert's experience is mixed, he or she can be attacked as being "available to the highest bidder."

Many experts have testified enough to leave a trail of deposition and trial testimony. The Virginia Association of Defense Attorneys ¹²⁷ and the

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Defense Research Institute ¹²⁸ have data banks on experts, including (i) the style and jurisdiction of the cases in which they have testified; (ii) the attorneys involved; (iii) whether the expert testified for the plaintiff or the defendant; and (iv) the outcome of the case. An organization called Expert Research on Demand (formerly known as IDEX) ¹²⁹ also maintains an extensive bank of expert witness transcripts. By contacting the attorneys in the prior case, counsel can usually obtain transcripts of prior testimony. Perhaps the expert has previously testified inconsistently with a position he or she is taking in the instant case. If so, the expert is susceptible to the assertion that he or she will say whatever the case calls for in order to fulfill the role of expert and collect the fee.

Much is made by both plaintiffs and defendants as to the fees that are charged by expert witnesses, which are often exorbitant. Being an expert can be quite lucrative. However, the impact of exposing to jurors the high fees or lucrative annual income of an expert is mixed. The expert's high fees and frequent appearances may simply confirm the jurors' belief in his or her expertise.

C. Medical Literature. Medical literature will often yield a great deal of information that can assist in the cross-examination of an adverse expert. The best time to lay a foundation for such a cross-examination is in the expert's...