The case involves Timothy Lloyd's appeal against the Circuit Court of Rockingham County's decision, which excluded the testimony of his expert witness and granted summary judgment to the defendant, Dr. Robert C. Kime, III, for lack of expert testimony. The trial court ruled that the plaintiff's expert did not meet the qualifications outlined in Code § 8.01-581.20 concerning standard of care, breach, and proximate causation in this medical malpractice case.
The facts reveal that Lloyd sustained a back injury at work on June 12, 2001, and was subsequently treated by Dr. Kime, who diagnosed him with herniated disks and performed surgery on June 29, 2001. Post-surgery, Lloyd exhibited serious neurological deficits, including weakness and numbness in his limbs. Dr. Kime noted unclear causes for these symptoms but suggested they might resolve over time. Nevertheless, Lloyd's condition did not improve, leading to further complications, which prompted him to file a medical malpractice claim against Dr. Kime. Lloyd alleged negligence related to the surgical procedure and failure to administer appropriate post-operative care, specifically claiming that Dr. Kime improperly cut his spinal cord, resulting in partial paralysis.
Lloyd designated Dr. Anthony Guy Lace Corkill as his sole expert witness regarding the standard of care, deviation from it, and proximate causation in his medical malpractice case against Dr. Kime. Dr. Corkill planned to testify that the standard of care required surgeons to avoid damaging the spinal cord and to administer heavy steroid dosages immediately after surgery. Despite having past experience with spinal surgeries, Dr. Corkill had not performed any surgeries or had hospital privileges since 1997. Dr. Kime sought to exclude Dr. Corkill's testimony, arguing he did not meet the qualifications outlined in Code § 8.01-581.20. After reviewing depositions from Dr. Corkill, Dr. Kime, and Dr. Adel S. Kebaish, the trial court determined Dr. Corkill was unqualified to testify on the standard of care, breach, or proximate causation, and denied Lloyd's request to designate another expert due to the expiration of the deadline. Following the exclusion of Dr. Corkill's testimony, Dr. Kime moved for summary judgment based on Lloyd's lack of a qualified expert, which the court granted. Lloyd then appealed on six grounds, arguing the trial court erred in excluding his expert, mischaracterizing relevant medical procedures, and failing to apply legal presumptions regarding expert qualifications. The appeal also contended that the trial court improperly relied on depositions for summary judgment without proper agreement from both parties, citing Rule 3:20 and Code § 8.01-420, which require mutual consent for deposition use in this context.
Lloyd contends that the trial court improperly relied on his expert’s discovery deposition to disqualify the expert and subsequently grant summary judgment. Although Dr. Kime did not utilize deposition testimony in his motion for summary judgment, the court considered it functionally similar to such a motion. Virginia law, specifically Rule 3:20 and Code § 8.01-420, dictates that discovery depositions cannot support a motion for summary judgment unless both parties agree; however, they may be used to oppose such a motion. Lloyd's use of Dr. Corkill’s deposition to counter Dr. Kime’s motion in limine was permissible, but he failed to object to Dr. Kime's use of the deposition, which established acquiescence. As a result, the trial court's decision to use deposition evidence in the motions was upheld.
In medical malpractice cases, the qualification of a witness as an expert falls under the trial court's discretion, governed by Code § 8.01-581.20, which presumes that licensed physicians in Virginia know the relevant standard of care in their specialty. A trial court's decisions regarding evidence admission or exclusion will not be overturned unless there is clear evidence of an abuse of discretion.
A physician licensed in another state who meets Virginia's educational and examination requirements is presumed to know the statewide standard of care in their specialty. An expert witness with knowledge of this standard cannot have their testimony excluded solely based on not practicing in Virginia. To qualify as an expert on the standard of care, a witness must demonstrate knowledge of the defendant's specialty standards and have engaged in active clinical practice in that specialty or a related field within one year of the alleged malpractice. There are two primary ways to establish this presumption: 1) a physician licensed in Virginia is presumed to know the standard of care in their certified specialty; 2) an out-of-state physician meeting Virginia's requirements is similarly presumed. If neither applies, a witness can still qualify if they show sufficient expertise relevant to the case. The proponent of the expert must prove that the expert's qualifications align with the defendant's specialty or a related field. In this context, Dr. Corkill, a neurologist not licensed in Virginia, was presumed to know the standard of care for neurologists as he met educational criteria. However, there was a dispute regarding his active clinical practice in neurosurgery, which is relevant since the case involves a surgery performed by an orthopaedist, Dr. Kime, that overlaps with neurosurgery. The burden of proof to establish the overlapping standards of care fell on Lloyd.
Lloyd was required to demonstrate that Dr. Corkill's specialty in neurology was sufficiently related to Dr. Kime's specialty in orthopaedics to qualify Dr. Corkill as an expert witness on intraoperative standards of care under Code § 8.01-581.20. This requirement aims to ensure that expert testimony comes from individuals actively engaged in relevant medical practices. Lloyd alleged that Dr. Kime deviated from the standard of care both intraoperatively, by negligently performing an anterior cervical discectomy, and postoperatively, by failing to recognize and treat a new neurological injury within 17 hours post-surgery.
While Lloyd argued that the standard of care for intraoperative negligence was undisputed and thus exempt from Code § 8.01-581.20 requirements, the court maintained these requirements are mandatory. It was established that Dr. Corkill had not practiced surgery or held hospital privileges since 1997, disqualifying him from testifying about intraoperative negligence. However, Lloyd provided evidence of overlap in the practices of neurologists and neurosurgeons regarding postoperative care. Lloyd's theory asserted that Dr. Kime should have recognized neurological symptoms indicative of a new injury during surgery and performed appropriate diagnostics and treatments, which were shown to be standard across both specialties.
Dr. Corkill’s affidavit indicated that assessing post-surgical neurological symptoms follows the same protocols as for any new patient, emphasizing that there is no significant distinction in medical procedures based on the setting (hospital or office). Dr. Kime did not present any evidence to counter this claim or indicate a distinction in the evaluation of neurological injuries occurring post-surgery. Thus, the court's decision regarding the qualifications of Dr. Corkill as an expert witness hinged on his lack of recent practical experience in spinal surgery for intraoperative claims, while recognizing the potential for his testimony regarding postoperative negligence.
The trial court improperly disregarded uncontradicted evidence that the standard of care for evaluating neurological injuries is shared among neurosurgeons, orthopaedists, and neurologists. Consequently, it abused its discretion by not qualifying Dr. Corkill as an expert on the standard of care for the allegation of postoperative negligence. Dr. Kime's argument that Dr. Corkill had not performed surgery in the year prior to the alleged negligence did not sufficiently rebut the presumption of Dr. Corkill's qualifications, as no evidence showed that his recent practice was unrelated to postoperative care.
Furthermore, the trial court mistakenly concluded that Dr. Corkill was unqualified under Code § 8.01-581.20 to testify on the standard of care or breach of that standard regarding either allegation of negligence. This code section addresses only expert qualifications for standard of care testimony and does not pertain to proximate causation, which the trial court also incorrectly denied Dr. Corkill the qualification to testify about.
In summary, while the trial court's determination that Dr. Corkill was not qualified on intraoperative negligence was upheld, its failure to recognize his qualifications regarding postoperative negligence, including the standard of care, breach of that standard, and proximate causation, was deemed erroneous. The judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings.
