Lloyd v. Kime

Present: All the Justices

TIMOTHY I. LLOYD

v. Record No. 070190 OPINION BY JUSTICE DONALD W. LEMONS
January 11, 2008
ROBERT C. KIME, III, M.D., ET AL.

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
James V. Lane, Judge

In this appeal, we consider whether the trial court erred

in using discovery deposition testimony from the plaintiff’s

expert witness to sustain a motion in limine excluding the

witness’s testimony and subsequently granting summary judgment

for the defendant based on the plaintiff’s lack of an expert

witness. Further, we consider whether the trial court erred

in holding that the plaintiff’s witness was not qualified to

testify as to standard of care, breach of the standard of

care, and proximate causation in this medical malpractice

action because the expert failed to meet the requirements of

Code § 8.01-581.20.

I. Facts and Proceedings Below

On or about June 12, 2001, Timothy Lloyd (“Lloyd”)

sustained a back injury while at work. On June 25, Lloyd was

seen by Dr. Robert C. Kime, III (“Dr. Kime”), an orthopaedic

surgeon who worked for Hess Orthopaedics and Sports Medicine,

P.L.C. (“Hess Orthopaedics”) and specialized in surgery of the

spine. Lloyd had a two-week history of severe neck and left
arm pain, as well as motor and sensory deficits on the left

side. Dr. Kime determined that Lloyd had two herniated disks

in his neck, one at the C5-6 level and one at the C6-7 level.

The herniated disks were pressing on nerve roots exiting from

the spinal cord and on the spinal cord itself.

On June 29, 2001, Dr. Kime performed an anterior cervical

discectomy decompression (a surgical procedure to remove the

herniated disks from compressing the nerve roots) on Lloyd.

After the surgery, Lloyd was taken to the Post Anesthesia Care

Unit (“PACU”). Upon Lloyd’s arrival in the PACU at 3:50 p.m.,

a nurse recorded her assessment that Lloyd “moves left leg,

feels touch to right leg, no movement.” Between that time and

7:45 p.m., nurses in the hospital recorded on four more

occasions that Lloyd was unable to move his right leg, toes,

and foot.

After Lloyd’s surgery, Dr. Kime performed a detailed

neurological exam, and wrote in his operative note at 6:28

p.m. that “[Lloyd] has good motor function and no complaints

of residual numbness or tingling in either upper extremity or

the left lower extremity. He had no numbness in the right

side lower extremity but did complain of diffuse weakness of

the right leg and states he could not actively flex or extend

the toes.” Dr. Kime recorded that the cause of the symptoms

was not clear, but that “at worse [sic] the patient has a

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small cord contusion and most likely this is a problem that

will resolve spontaneously over the course of the next several

days to several weeks.”

The following morning, Dr. Kime performed another

neurological examination at 9:00 a.m. The examination showed

that Lloyd had not improved. Lloyd had weakness in his right

arm and leg, milder weakness in his left arm, and numbness in

his abdomen. He had no tibialis anterior or quadriceps

function on his right side, but had some function in the other

muscles in his right leg. Because of these symptoms, Dr. Kime

started Lloyd on a 24-hour course of the intravenous steroid

Solu-Medrol to reduce possible swelling around the spinal

cord. An MRI completed around 12:37 that afternoon indicated

swelling in the spinal cord at the C6-7 level. Lloyd remained

in the hospital until July 5, 2001, when he was discharged to

be treated with physical therapy and medication. Lloyd

continued to suffer from unsteadiness, weakness in his right

arm and leg, and pain in his abdomen. He began to develop

difficulty swallowing and sexual dysfunction.

Lloyd filed a motion for judgment against Dr. Kime and

Hess Orthopaedics for medical malpractice in the performance

of the anterior cervical discectomy surgery and for his post-

operative treatment in the hospital. Specifically, Lloyd

alleged that Dr. Kime was negligent in performing the surgery

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because “Dr. Kime should not have cut Lloyd’s spinal cord with

his [surgical] instruments so as to leave Lloyd partially

paralyzed.” Also, Lloyd alleged that Dr. Kime should have

recognized that Lloyd had suffered a partial spinal cord

injury during surgery and administered a large dose of Solu-

Medrol within the first eight hours after the surgery. Lloyd

designated Dr. Anthony Guy Lace Corkill (“Dr. Corkill”) as his

only expert witness on the required standard of care,

deviation therefrom, and proximate causation.

Dr. Corkill intended to testify at trial that the

standard of care for surgeons performing spinal surgeries

required Dr. Kime to “not cut the spinal cord with the

surgical instruments in such a way as to cause permanent

paralysis,” and to “initiate conventional heavy steroid dosage

immediately post-operatively.” At the time of Lloyd’s

surgery, Dr. Corkill was a practicing neurologist. Though Dr.

Corkill had performed spinal surgeries, including anterior

cervical discectomies, in the past, he had not performed any

surgeries, worked in a hospital, or had hospital privileges

since 1997.

Dr. Kime moved to exclude the testimony of Dr. Corkill

because he did not meet the requirements of Code § 8.01-

581.20. The trial court read portions of the depositions of

Dr. Corkill, Dr. Kime, and the defense expert witness Dr. Adel

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S. Kebaish, and found that the relevant medical procedures in

the case were the performance of the surgery itself and the

immediate post-operative care following the surgery. The

trial court held that Dr. Corkill was not qualified to testify

as to the standard of care for either procedure under Code

§ 8.01-581.20(A), and was also not qualified to testify as to

breach of the standard of care or proximate causation. The

court denied Lloyd’s request to file a supplemental expert

designation to offer another surgeon to testify on the

standard of care, because the time for designation of experts

pursuant to the pretrial scheduling order had expired.

After the trial court granted Dr. Kime’s motion in limine

to exclude Dr. Corkill’s testimony, Dr. Kime moved for summary

judgment on the grounds that Lloyd had no designated expert

witness to testify on the standard of care, breach of that

standard, or proximate causation, and therefore could not

establish a prima facie case of medical malpractice. The

court granted the motion for summary judgment.

Lloyd appeals to this Court on six assignments of error:

1. The trial court erred in excluding Lloyd's expert
witness and entering summary judgment based on deposition
testimony without allowing Lloyd the opportunity to qualify
his expert during voir dire at trial.

2. The trial court erred in holding that one of the
relevant medical procedures at issue was the immediate post-
operative care following surgery.

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 3. The trial court erred by failing to consider and
apply the presumption of qualification found in VA Code
§ 8.01-581.20(A).

4. The trial court erred in assuming, without any
evidence, that there was a significant medical distinction in
evaluating, diagnosing and treating an acute spinal cord
injury in a post-anesthesia care unit as opposed to an office
setting or anywhere else.

5. The trial court erred in excluding Dr. Corkill's
testimony of the standard of care required during surgery and
in the use of Solu-Medrol when there was no dispute on the
applicable standard of care.

6. The trial court erred in holding that the
qualification requirements of VA Code § 8.01-581.20 apply to
expert testimony regarding a breach of the standard of care
and causation.

II. Analysis

A. Use of Discovery Depositions to Disqualify Expert

Rule 3:20 states: “No motion for summary judgment or to

strike the evidence shall be sustained when based in whole or

in part upon any discovery depositions under Rule 4:5, unless

all parties to the action shall agree that such deposition may

be so used.” See also Code § 8.01-420. We have held that

Rule 3:20 and Code § 8.01-420 “impose a very specific

condition; namely, the parties must agree to the use of

depositions before they may serve as a basis in whole, or in

part, for the entry of summary judgment. This condition

requires some showing of acquiescence in the use of a

deposition.” Gay v. Norfolk & W. Ry. Co., 253 Va. 212, 214,

483 S.E.2d 216, 218 (1997). Whether a trial court’s actions

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conflict with the procedural requirements set forth in a rule

of this Court or a statute is a question of law that is

reviewed de novo. See Collins v. Shepherd, 274 Va. 390, 397,

649 S.E.2d 672, 675 (2007).

Lloyd argues in assignment of error 1 that the trial

court erred in using his expert’s discovery deposition to

disqualify the expert and to then grant summary judgment based

on the disqualification. Although Dr. Kime did not offer

deposition testimony in support of his motion for summary

judgment, he did offer it in a manner that was “functionally a

motion for summary judgment.” Gay, 253 Va. at 214 n.*, 483

S.E.2d at 218 n.* (holding that regardless of the label,

defendant’s motion to dismiss for lack of subject matter

jurisdiction “was functionally a motion for summary judgment

and subject to Rule 3:18 [now 3:20] and Code § 8.01-420”). We

have held that Rule 3:20 and Code § 8.01-420 apply when a

defendant files a motion in limine seeking the exclusion of

the plaintiff’s expert testimony, and the court’s ruling

excluding the testimony is followed by the defendant’s motion

for summary judgment predicated upon the exclusion. Parker v.

Elco Elevator Corp., 250 Va. 278, 281 n.2, 462 S.E.2d 98, 100

n.2 (1995). In such a case, the motion in limine is

functionally a motion for summary judgment. Rule 3:20 and

Code § 8.01-420 therefore apply to Dr. Kime’s motion to

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exclude Dr. Corkill’s testimony in this case. Deposition

testimony could not be used to support the motion in limine

unless Lloyd acquiesced.

Dr. Kime argues that Lloyd acquiesced in the use of the

deposition by quoting it in his “Argument in Opposition to the

Motion to Exclude” and his “Motion to Reconsider.” Rule 3:20

and Code § 8.01-420 state that “[n]o motion for summary

judgment shall be sustained when based in whole or in part” on

discovery depositions unless the parties agree that

depositions can be used. Rule 3:20 (emphasis added). Under

Rule 3:20 and Code § 8.01-420 discovery depositions cannot be

used to support a motion for summary judgment unless the

parties agree. The Rule and statute do not apply to the use

of depositions to oppose a motion for summary judgment. See

W. Hamilton Bryson, Virginia Civil Procedure § 9.05(10)(e)

(4th ed. 2005). Lloyd’s use of Dr. Corkill’s deposition to

oppose Dr. Kime’s motion in limine would be a permissible use.

However, based upon the record of this case, Lloyd did

not object to the use of the depositions by Dr. Kime in

support of the motion.* See Parker, 250 Va. at 281 n.2, 462

*
Lloyd maintains that he objected at a hearing on October
30, 2006; however, a transcript of that hearing was not filed
in the circuit court clerk’s office and, consequently, is not
a part of the record. The transcript is unavailable for our
consideration. Woodfin v. Commonwealth, 236 Va. 89, 97-98,
372 S.E.2d 377, 382 (1988) ("[W]e are limited to the appellate

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S.E.2d at 100 n.2. Failure to object to the use of the

deposition is sufficient to establish acquiescence.

Accordingly, based upon the record before us, the trial court

did not err in using deposition evidence in the resolution of

the motion in limine and subsequent motion for summary

judgment.

B. Code § 8.01-581.20

“The question whether a witness is qualified to testify

as an expert is ‘largely within the sound discretion of the

trial court.’ In the context of a medical malpractice action,

this determination must be made with reference to Code § 8.01-

581.20.” Perdieu v. Blackstone Family Practice Ctr., 264 Va.

408, 418, 568 S.E.2d 703, 709 (2002) (quoting Noll v. Rahal,

219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)) (internal

citations omitted). “ ‘A trial court’s exercise of its

discretion in determining whether to admit or exclude evidence

record in this case in consideration of issues presented here.
We are not permitted to supplement the record by referring to
[other evidence] not made a part of this record."); Dere v.
Montgomery Ward & Co., 224 Va. 277, 281 n.2, 295 S.E.2d 794,
796 (1982) (holding the Court was bound by the record and the
circuit court's certified written statement of fact, and "not
upon counsel's recollection of what occurred" during
proceedings in the circuit court); Rountree v. Rountree, 200
Va. 57, 62-63, 104 S.E.2d 42, 47 (1958) (holding the Court
would not consider facts in affidavits attached to the
appellate briefs that were not part of the record from the
circuit court); Old Dominion Iron & Steel Corp. v. VEPCO, 215
Va. 658, 212 S.E.2d 715 (1975). See also Godfrey v.
Commonwealth, 227 Va. 460, 317 S.E.2d 781 (1984).

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will not be overturned on appeal absent evidence that the

trial court abused that discretion.’ ” Wright v. Kaye, 267

Va. 510, 517, 593 S.E.2d 307, 310 (2004) (quoting May v.

Caruso, 264 Va. 358, 362, 568 S.E.2d 690, 692 (2002)).

The qualification of a witness as an expert on the

standard of care in a medical malpractice action is governed

by Code § 8.01-581.20, which states in relevant part:

Any physician who is licensed to practice in
Virginia shall be presumed to know the
statewide standard of care in the specialty or
field of medicine in which he is qualified and
certified. This presumption shall also apply
to any physician who is licensed in some other
state of the United States and meets the
educational and examination requirements for
licensure in Virginia. An expert witness who
is familiar with the statewide standard of care
shall not have his testimony excluded on the
ground that he does not practice in this
Commonwealth. A witness shall be qualified to
testify as an expert on the standard of care if
he demonstrates expert knowledge of the
standards of the defendant’s specialty and of
what conduct conforms or fails to conform to
those standards and if he has had 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.

Under this statute, there are two methods by which a physician

is presumed to know the statewide standard of care in his

particular specialty or field of medicine:

(1) If the physician is licensed in Virginia,
he is presumed to know the standard of
care of the specialty or field of medicine

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 in which he is qualified and certified.
Wright, 267 Va. at 518, 593 S.E.2d at 311.

(2) If the physician is licensed out-of-state,
but meets the educational and examination
requirements of the statute, he is
presumed to know the standard of care of
the specialty or field of medicine in
which he is qualified and certified. Id.

If neither situation applies, a witness nonetheless may be

qualified to testify as to the standard of care if the witness

demonstrates “sufficient knowledge, skill, or experience to

make him competent to testify as an expert on the subject

matter at issue.” Christian v. Surgical Specialists of

Richmond, Ltd., 268 Va. 60, 65, 596 S.E.2d 522, 524 (2004);

Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d 172, 174 (2000);

Hinkley v. Koehler, 269 Va. 82, 88, 606 S.E.2d 803, 806

(2005). In all cases, 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.”

Code § 8.01-581.20.

In this case, the parties disagree on the subject of Dr.

Corkill’s qualification. Lloyd argues in assignments of error

2, 3, and 4 that the trial court erred by failing to properly

apply the requirements of qualification in Code § 8.01-581.20.

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 In order to qualify a witness as an expert on the

standard of care, the proponent of the expert must 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. For

example, in Griffett v. Ryan, 247 Va. 465, 472-73, 443 S.E.2d

149, 153-54 (1994), we held that the expert, an internist, was

qualified to testify because he demonstrated that the standard

of care in his field did not vary from the standard of care in

the defendant’s field, gastroenterology, a subspecialty of

internal medicine.

Evidence produced by Dr. Kime indicated that Dr. Corkill

did not have an active clinical practice in neurosurgery.

However, for purposes of the motion in limine, the parties

agreed that Dr. Corkill was a neurologist. Dr. Corkill was

not licensed in Virginia, but Lloyd presented the trial court

with a letter from the Virginia Department of Health

Professions asserting that “Dr. Corkill’s credentials meet the

educational and examination requirements for licensure in

Virginia.” Under Code § 8.01-581.20, Dr. Corkill was

therefore presumed to know the standard of care in Virginia

for neurologists. It is undisputed that Dr. Kime was an

orthopaedist performing a surgery that is also performed by

neurosurgeons. Lloyd had the initial burden to demonstrate

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that Dr. Corkill’s area of qualification and certification had

certain overlapping medical practices and similar standards of

care with Dr. Kime’s. Griffett, 247 Va. at 472-73, 443 S.E.2d

at 153-54. In other words, Lloyd had to show that Dr.

Corkill’s specialty, neurology, is a related field of medicine

to Dr. Kime’s specialty, orthopaedics, before Dr. Corkill

would be qualified to testify as to the intraoperative

standard of care in this case.

The purpose of the requirement in § 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. Therefore, we conclude that, in
applying the “related field of medicine” test
for the purposes of § 8.01-581.20, it is
sufficient if in the expert witness’ clinical
practice the expert performs the procedure at
issue and the standard of care for performing
the procedure is the same.

Sami v. Varn, 260 Va. 280, 285, 535 S.E.2d 172, 175 (2000).

“[T]he term ‘actual performance of the procedures at issue’

must be read in the context of the actions by which the

defendant is alleged to have deviated from the standard of

care.” Wright, 267 Va. at 523, 593 S.E.2d at 314.

Lloyd alleged that Dr. Kime deviated from the standard of

care in two different ways in this case. The first deviation

was intraoperative and Lloyd alleges that Dr. Kime performed

the anterior cervical discectomy negligently. The second

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deviation was postoperative and Lloyd alleges that in the

first seventeen hours after the surgery, Dr. Kime failed to

recognize that Lloyd had a new neurological injury, to

properly diagnose it, and to properly treat the new injury.

Lloyd argues that Dr. Corkill should be allowed to

testify as an expert witness on the standard of care

applicable to intraoperative negligence because the parties do

not dispute the standard of care for this claim. Lloyd

asserts that the requirements of Code § 8.01-581.20 are not

applicable if the standard of care is not in dispute.

However, “the requirements of Code § 8.01-581.20 are

mandatory.” Perdieu, 264 Va. at 419, 568 S.E.2d at 709. It

was undisputed in this case that Dr. Corkill had not performed

any surgeries, worked in a hospital, or had hospital

privileges since 1997. Dr. Corkill had no active clinical

practice in performing spinal surgery, and Lloyd presented no

evidence to suggest that Dr. Corkill’s practice as a

neurologist included performing spinal surgery. The trial

court therefore correctly held that Dr. Corkill was not

qualified to testify as an expert witness on the standard of

care as to Lloyd’s allegation of intraoperative negligence.

However, as to Lloyd’s allegation of postoperative

negligence, Lloyd did present evidence of an overlap between a

neurologist’s practice and a neurosurgeon’s or othopaedist’s

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practice. Lloyd’s theory of postoperative negligence was that

Dr. Kime should have recognized that Lloyd had symptoms of

having suffered a new neurological injury during surgery, and

should have performed the appropriate diagnostic tests,

discovered the injury, and promptly treated the injury with a

heavy dose of the steroid Solu-Medrol. Lloyd presented

evidence that the standard of care for neurologists and

neurosurgeons or orthopaedists in such a scenario is the same.

Lloyd’s expert, Dr. Corkill, stated in an affidavit that the

neurological symptoms Lloyd displayed post-surgery

must be evaluated like any new patient. This
is done by taking a thorough history,
performing a complete physical examination for
neurological function, evaluating and ordering
proper tests and studies, reaching a diagnosis
and prognosis, and formulating and implementing
a treatment plan. . . . The medical procedures
utilized in the evaluation, diagnosis, and
treatment of an acute spinal cord injury . . .
are the same utilized in the hospital setting
as opposed to the office setting, or anywhere
else for that matter. There is no “significant
medical distinction” in how these procedures
are done in a hospital setting as opposed to an
office setting or anywhere else.

Dr. Kime offered no evidence to contradict Lloyd’s

evidence or suggest that there is a medical distinction

between evaluation of a neurological injury post-surgery and

any other time. In light of the record, the trial court could

not disregard the uncontradicted testimony that the standard

of care for evaluation of a neurological injury was common to

15
neurosurgeons, orthopaedists, and neurologists. Sami, 260 Va.

at 284, 535 S.E.2d at 174. Therefore, the trial court abused

its discretion by failing to qualify Dr. Corkill as an expert

on the standard of care with regard to the allegation of

postoperative negligence.

Although Dr. Kime presented evidence that Dr. Corkill had

not performed surgery within one year of the date of the

alleged negligence, he presented no evidence that Dr.

Corkill’s active practice in the year before Lloyd’s surgery

was not in a related field of medicine with regard to

postoperative diagnosis and care. Therefore, Dr. Kime failed

to rebut the presumption that Dr. Corkill was qualified to

testify as to the standard of care on the allegation of

postoperative negligence. We conclude that the trial court

abused its discretion in holding that Dr. Corkill was not so

qualified.

Additionally, Lloyd argues that the trial court erred in

holding that Dr. Corkill was not qualified under Code § 8.01-

581.20 to testify as to breach of the standard of care or

proximate causation for either allegation of negligence. Code

§ 8.01-581.20 addresses only the qualifications of experts to

testify on the standard of care and whether the standard of

care is breached. Hinkley, 269 Va. at 92 n.5, 606 S.E.2d at

809 n.5. The requirements do not address whether an expert

16
witness is qualified to testify on proximate causation.

Therefore, the trial court abused its discretion by holding

that Dr. Corkill was not qualified to testify on proximate

causation as to either allegation of negligence

(intraoperatively or postoperatively).

III. Conclusion

The trial court did not abuse its discretion in its

holding that Dr. Corkill was not qualified under Code § 8.01-

581.20 to give an opinion on standard of care and breach of

the standard concerning the allegation of intraoperative

negligence. Because the trial court did not consider the

uncontradicted testimony of Dr. Corkill that the standard of

care for postoperative evaluation of a neurological injury was

common to neurosurgeons, neurologists, and orthopaedists, we

hold that the trial court abused its discretion by not finding

Dr. Corkill qualified to testify on this issue. On this

record, Dr. Corkill is qualified to testify on standard of

care, breach of standard of care, and proximate causation as

to Lloyd’s allegation of postoperative negligence. On this

record, Dr. Corkill is not qualified under Code § 8.01-581.20

to testify as to standard of care or breach of standard of

care as to Lloyd’s allegation of intraoperative negligence,

but may be qualified to testify as to proximate causation.

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 Accordingly, the judgment of the trial court will be

affirmed in part and reversed in part, and the case is

remanded for further proceedings.

Affirmed in part,
reversed in part,
and remanded.

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