Prior to trial in a medical malpractice case, the Circuit Court of Prince William County struck four expert witnesses designated by the plaintiff, Jennifer Wright, due to their lack of experience performing urachal cyst excisions, the procedure conducted by the defendant, Dr. Richard C. Kaye. The trial court granted summary judgment in favor of Dr. Kaye and dismissed Wright's case with prejudice after denying her motion for reconsideration. Wright's appeal challenges the court's decisions to strike her expert witnesses, the reliance on depositions for these rulings, the grant of summary judgment, and the denial of several motions in limine.
The background of the case indicates that Dr. Kaye performed laparoscopic surgery on Wright on August 20, 1997, to diagnose her chronic pelvic pain, during which he excised a cyst from her urachus using an endo-GIA surgical stapler. Post-surgery, Wright experienced complications including urinary frequency and bladder spasms, leading to the discovery and removal of six surgical staples from her bladder a year later, which had been left from the procedure. Despite her experts having relevant experience in obstetrics and gynecology, the trial court found they lacked specific knowledge related to urachal cyst removal, prompting the strike of their testimonies and the subsequent summary judgment in favor of Kaye.
Wright filed a motion for a continuance and to designate a new expert witness, which the trial court deferred until the trial date while allowing Wright to file a supplemental expert designation. Wright later designated Dr. Charles M. Jones as a new expert. Dr. Kaye had previously designated Dr. Hans-Barthold Krebs as a standard of care expert, but Wright moved to exclude Dr. Krebs due to a claimed conflict of interest stemming from a professional relationship with another physician, asserting that Krebs’ testimony would breach the patient-physician confidentiality under Code 8.01-399. The trial court denied this motion. Wright also sought to exclude testimony concerning pre-operative discussions about surgery risks, arguing such testimony was irrelevant, which the trial court also denied. Further, Wright attempted to exclude testimony from Dr. Kaye regarding a consultation with Dr. Guillermo Gil-Montero during surgery and prior surgery on an unrelated patient, both of which were denied by the court. On the trial date, the court ruled that Dr. Jones’ designation introduced new prejudicial issues, preventing his qualification as an expert. Consequently, the trial court denied Wright's motion for a continuance, granted Dr. Kaye’s summary judgment motion, and subsequently dismissed Wright’s case with prejudice after denying a motion for reconsideration. The appeal was granted to Wright. The document also outlines the standard of review regarding the trial court’s discretion in admitting or excluding evidence and the qualifications of expert witnesses in medical malpractice cases, stating that a physician in Virginia is presumed to know the standard of care in their specialty, applicable to Wright’s designated experts.
The central issue is whether the presumption of expert witness qualification was rebutted, which would disqualify Wright’s experts under Code 8.01-581.20(A). A witness can be disqualified if they do not meet either of two criteria: 1) demonstrating expert knowledge of the standards of the defendant’s specialty and relevant conduct, or 2) showing active clinical practice in the defendant's specialty or a related field within one year of the alleged malpractice. Dr. Kaye moved to strike Wright’s experts, arguing they lacked recent experience with the procedures relevant to the case. The trial court granted this motion, concluding that the experts did not possess sufficient knowledge regarding urachal cystectomy, the procedure at issue. Although the trial court did not directly address the active clinical practice requirement, it highlighted the lack of experience of the witnesses with urachal cystectomies. Wright contends on appeal that the trial court erred, asserting her experts met both statutory requirements and arguing that the relevant procedure should be considered laparoscopic surgery near the bladder, not urachal cystectomy. Dr. Kaye argues for affirmance, maintaining that the experts' lack of experience with urachal cystectomy demonstrates failure to meet the knowledge requirement and rebuttal of the statutory presumption. Dr. Kaye also claims that the absence of recent practice in urachal cyst excision confirms that Wright’s experts do not meet the active clinical practice requirement. Ultimately, the court disagrees with Dr. Kaye, stating that the trial court's decision to strike Wright’s experts was erroneous. The qualification of a witness to testify as an expert is largely at the trial court's discretion, and such decisions should be aligned with Code 8.01-581.20. An exclusion of expert opinion will only be overturned on appeal if it is clear the witness was qualified.
The court will overturn a previous ruling that a witness was unqualified to testify as an expert if the record shows the witness has sufficient knowledge, skill, or experience relevant to the case. Wright does not claim any injury to the urachus or that the laparoscopic removal of the urachal cyst deviated from the standard of care. Instead, she asserts that Dr. Kaye deviated from acceptable medical practices by injuring the bladder, which was outside the intended operative field. Specifically, Wright contends that Dr. Kaye operated too close to the bladder when firing staples and failed to visualize the bladder adequately, resulting in staples penetrating the bladder dome. She also claims he did not inspect the bladder cystoscopically before concluding the surgery. The applicable medical standard in this case pertains to laparoscopic surgery near the bladder, with no unique standard established for urachal cyst surgery concerning bladder injuries. Dr. Kaye's own testimony supports Wright's position that urachal cyst excision employs general surgical techniques. He indicated he aimed to avoid the bladder during the surgery and acknowledged that stapling the bladder would not have been beneficial. The court previously determined in Lawson that an expert lacked sufficient knowledge of applicable care standards in a different medical procedure. The current case focuses on the standard of care for laparoscopic surgery near the bladder, and the expertise of Wright’s witnesses will be evaluated based on their understanding of that standard. Wright's experts are deemed qualified under the statutory requirements concerning the procedures involved in her case.
Wright’s experts possess extensive knowledge of the standard of care in female pelvic laparoscopic surgery, specifically regarding cyst removal near the bladder using a surgical stapler, and are deemed competent to testify as expert witnesses. Dr. Kaye did not successfully challenge this competency, leading to an error by the trial court in striking Wright’s experts. Additionally, Dr. Kaye argued that Wright’s experts failed to meet the active clinical practice requirement as outlined in Code 8.01-581.20(A), which necessitates that an expert must have engaged in active clinical practice within one year preceding the alleged malpractice. However, uncontested evidence indicates that Wright’s experts did meet this requirement in relation to laparoscopic surgery.
Dr. Kaye contends that previous rulings, specifically in the cases of Sami and Perdieu, require that an expert witness must have performed the exact medical procedure with the same pathology involved in the malpractice case. He claims that experience with female pelvic laparoscopic operations does not suffice because the alleged negligence involved a urachal cyst excision. However, the interpretation of "defendant’s specialty" from earlier rulings clarifies that the relevant standard is whether the expert's clinical practice encompasses the same procedures and standards of care as those at issue, which pertains to bladder injury rather than the cyst excision. Thus, the active clinical practice requirement can be satisfied if the expert's practice relates closely to the procedure and standard of care relevant to the alleged negligence.
Dr. Kaye interprets the requirements for expert witness qualifications in medical malpractice cases to necessitate that an expert must have directly treated the specific condition pertinent to the case, such as a herniated disc at L4, rather than at adjacent vertebrae. This interpretation extends to requiring that an expert who testifies about a fracture procedure must have performed that exact procedure within a defined one-year period. The General Assembly's intent was not to impose such a narrow test; the statute should not be construed in a way that contradicts its plain language. In the case at hand, the court found that the experts for Wright adequately demonstrated their knowledge of the standard of care and maintained active clinical practices in their specialty, thus qualifying them as witnesses. The trial court erred by striking Wright's experts and granting summary judgment for Dr. Kaye.
Regarding Dr. Krebs, the court assessed whether there was an abuse of discretion in allowing him to serve as an expert for the defendant. Wright argued that Dr. Krebs, being affiliated with her treating physician Dr. Welgoss, should be barred from testifying against her without consent. The trial court disagreed, establishing that the issue of affiliated experts is novel in Virginia. Citing the precedent of *Turner v. Thiel*, the court noted that the determination of disqualification for expert witnesses hinges on whether a confidential relationship existed and whether any confidential information was disclosed to the expert. The burden of proof lies with the party seeking disqualification.
The majority of courts addressing the issue of affiliated experts apply a test similar to the side-switching expert test established in Turner. Under this majority rule, a court assesses whether the moving party has demonstrated that any substantive information has been exchanged between the affiliated experts. The burden of proof for disqualification rests with the party seeking it. In this case, Wright sought to disqualify Drs. Krebs and Welgoss, alleging they exchanged confidential information regarding her treatment. However, the trial court found Wright did not meet this burden, noting that she failed to provide evidence of any such exchange. Although Wright argued that the nature of the experts’ affiliations should imply an exchange, the court rejected this notion, stating that actual evidence of a confidential information exchange is necessary for disqualification.
Additionally, Wright contended that Code 8.01-399 prohibits a physician affiliated with a treating physician from testifying adversely to a patient. The statute specifies that no practitioner is required to testify about information acquired during the treatment of a patient. However, the court determined that Dr. Krebs was not barred from testifying as he had not treated or examined Wright and thus had no relevant information regarding her care. The statute's language does not extend to partners or affiliated physicians, which the General Assembly clarified in other sections of the statute.
Finally, regarding Wright’s motion to exclude testimony about Dr. Kaye’s prior surgery with Dr. Krebs, the trial court allowed it, reasoning that it was relevant to Dr. Kaye's experience and training. Wright argued that such testimony could imply that their customary method equated to the standard of care, but the court upheld the admissibility of this evidence.
Wright's argument confuses the admissibility of evidence regarding the standard of care with evidence related to a physician’s training and experience. The court affirms that a physician’s qualifications, derived from both education and experience, are relevant in medical malpractice cases. It would be unjust to allow a defendant to present training evidence while prohibiting the same for the plaintiff's experts. The court ruled that Dr. Kaye's prior experience with urachal cyst procedures is pertinent to his capability in performing a laparoscopic operation near the bladder.
Wright's motion to exclude discussions about the risks of bladder injury during an urachal cystoscopy was denied by the trial court, which reasoned that a prudent physician must inform patients of risks to avoid implying negligence. However, the court finds this ruling erroneous because Wright did not claim a lack of informed consent; her assertion is based solely on alleged negligence during the procedure. Evidence of risk discussions is deemed irrelevant to the standard of care and does not aid in proving causation. The court cautions that introducing this evidence could mislead the jury into incorrectly equating consent with a waiver of negligence.
Additionally, Wright sought to prevent Dr. Kaye from testifying about an intraoperative consultation with Dr. Gil-Montero, who reportedly indicated that Dr. Kaye was at a safe distance from the bladder and did not require a cystoscopy. However, Dr. Gil-Montero cannot be cross-examined on this matter, as he has no memory of the events in question.
The trial court denied Wright’s motion to exclude Dr. Kaye’s testimony regarding statements made by Dr. Gil-Montero, ruling that the testimony was not offered for the truth of the statements but to explain Dr. Kaye’s actions. However, Wright contended that this testimony constituted inadmissible hearsay, seeking to prove the truth of the statements to justify Dr. Kaye’s adherence to the standard of care. The appellate court agreed with Wright, citing that Dr. Kaye’s recounting of Dr. Gil-Montero’s statements was classic hearsay, as it aimed to assert facts from Dr. Gil-Montero’s declarations. It was determined that no exceptions to the hearsay rule applied that would allow the statements into evidence, emphasizing that allowing such testimony would effectively admit unqualified expert opinion. The court referenced prior case law indicating that a medical expert's recounting of another physician’s opinion is inadmissible hearsay. The court found the trial court erred in denying Wright’s motions in limine regarding Dr. Gil-Montero’s statements and in striking Wright’s experts, while affirming some of the trial court's other decisions. The judgment was affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
