9.5 Direct Examination of Standard of Care Expert

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

9.5 DIRECT EXAMINATION OF STANDARD OF CARE EXPERT

9.501 Qualification. In most medical malpractice cases, the plaintiff will be unable to establish a prima facie case without expert testimony that the defendant failed to comply with the standard of care. For this reason, qualification by the trial judge of the plaintiff's expert is often the pivotal event of trial. The trial judge is granted broad discretion to determine whether an expert is qualified. ⁸ Counsel should always prepare the expert intensively for the qualification stage of his or her testimony by explaining the process and the relevant criteria and by brainstorming with the expert all the facts that may support qualification. When questioning, counsel should not wait for the defendant to attack, but should bring out all of the reasons the expert is qualified in the context counsel deems relevant before the defendant conducts voir dire of the expert.

9.502 Statutory Standard of Care. Section 8.01-581.20 of the Virginia Code defines the standard of care and criteria governing the standard of care and expert qualification. The standard of care is the "degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth." However, the standard of care in the involved locality or similar localities shall be applied if any party

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proves by a preponderance of the evidence that the health care services and health care facilities available in the locality or similar localities give rise to a standard more appropriate than a statewide standard. Any issue regarding the standard of care to be applied will be determined by the jury. Although section 8.01-581.20 states that the standard of care will be that of a practitioner in Virginia, the Supreme Court of Virginia has recognized that this standard may be the same standard as a national standard of care, stating that "nothing . . . prohibits Virginia physicians from practicing according to a national standard if one exists for a particular specialty, even though neither the General Assembly nor this Court has adopted such a standard." ⁹

9.503 Custom Does Not Equal Standard of Care. A defense attack on a proffered expert will focus on the expert's lack of knowledge of what others are doing in Virginia, particularly in the case of an out-of-state expert. But this line of attack is misguided. In King v. Sowers, ¹⁰ the court made it clear that the standard of care is not synonymous with custom but is the classical negligence standard embodied in the "reasonable person" test. King cited with approval Nesbitt v. Community Health of South Dade, Inc., ¹¹ which observed that "the fact that a person deviates from or conforms to an accepted custom or practice does not establish conclusively that the person was or was not negligent." ¹² Similarly, in Grubb v. Hocker, ¹³ the court equated qualification to testify not with knowledge of others' customs but with qualification to practice:

We would be reluctant to hold that one who has demonstrated the requisite knowledge and skill to qualify for admission to practice a regulated profession in Virginia is nevertheless unqualified to give an opinion as to the degree of skill and diligence required of reasonably prudent Virginia practitioners in the field to which he has been admitted.

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In structuring a qualification bid, counsel must discourage the trial judge from simply focusing on what, if any, contacts the expert has had with Virginia by emphasizing that the issue is not the customs of Virginia practitioners but whether the expert is qualified to practice in Virginia. If qualified to provide care in Virginia, the expert is qualified to state how the care should be provided in Virginia.

9.504 Presumption That Expert Is Qualified. The validity of qualifying an expert based upon whether the expert is qualified to practice in Virginia rather than on the expert's contacts with Virginia is supported by the presumption found in section 8.01-581.20(A), which 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. This presumption shall also apply to any person who, but for the lack of a Virginia license, would be defined as a health care provider under this chapter, 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.

This presumption is rebuttable. However, showing merely that the expert lacks contact with Virginia is inadequate to rebut the presumption. Instead, the defendant must produce evidence of practices and circumstances unique to Virginia with which the expert is unfamiliar. In Black v. Bladergroen, ¹⁴ the court put to rest the notion that the statutory presumption can be rebutted by merely showing a lack of contact with Virginia or Virginia practitioners. Once it is shown that an expert witness is entitled to the statutory presumption, the burden shifts to the party opposing qualification to produce evidence that the Virginia standard differs from the standard elsewhere. ¹⁵

9.505 Using the Presumption. Proving entitlement to the presumption is not difficult. The educational and examination requirements will depend on the health care provider's profession. Licensure requirements to practice medicine, osteopathy, chiropractic, and podiatric medicine are covered by section 54.1-2930 and are met if the expert is a graduate of an accredited

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medical school, has completed one year of post-graduate training in an accredited training program, and has passed a nationally recognized examination. The educational and examination requirements for most other health care providers are covered in section 54.1-2900 et seq. and the accompanying regulations in title 18 of the Virginia Administrative Code. A court should take judicial notice of the statutory and regulatory educational and examination requirements. ¹⁶ Once the expert has testified that he or she has met these requirements, the presumption should be accorded the expert.

Before trial, counsel should request the Virginia Board of Medicine ¹⁷ to review the credentials of the expert. ¹⁸ The Board will issue an attested letter certifying that the expert meets the educational and examination requirements for licensure. Using the letter as an attachment, plaintiff's counsel should serve a request for admission upon the defendant to elicit an admission that the expert meets the requirements. If the defendant fails to admit, plaintiff's counsel may wish to subpoena a representative of the Board. The Attorney General will move to quash the subpoena, arguing that the letter is admissible and that the appearance of the Board witness is unnecessary. Before all this comes to pass, the defendant will probably concede that the witness meets the educational and examination requirements for licensure. If not, the letter from the Board may be presented to the trial court when the...