Hinkley v. Koehler

Present: All the Justices

ELIZABETH K. HINKLEY

v. Record No. 040389 OPINION BY JUSTICE CYNTHIA D. KINSER
January 14, 2005
ANTHONY J. KOEHLER, M.D., ET AL.

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M. D. Turk, Judge

Elizabeth K. Hinkley filed this medical malpractice

action, naming as defendants Anthony J. Koehler, M.D.;

Sanam Emami Campbell, M.D.; David J. Roberts, M.D.

(collectively, “the defendant doctors”); and their employer

Southwest Virginia Physicians for Women, Inc., d/b/a

Obstetrics & Gynecology of Radford (collectively, “the

defendants”).1 A jury returned a verdict for the

defendants.

We awarded Hinkley this appeal on the question whether

the circuit court erred in concluding that one of the

defendants’ witnesses was qualified under Code § 8.01-

581.20(A) to give expert testimony with regard to the

standard of care. Because the expert witness had not had

an active clinical practice in the defendant doctors’

specialty or a related field within one year of the alleged

1
Hinkley also named as defendants Carilion New River
Valley Medical Center along with several of its employees.
Before trial, Hinkley took a nonsuit as to these
defendants.
negligence, we will reverse the judgment of the circuit

court.

During her 28th week of a twin pregnancy, Hinkley

sought medical attention due to decreased fetal movements

and contractions. Over the course of two days, August 23

and 24, 2001, the defendant doctors attended to Hinkley and

her twin fetuses, primarily by monitoring the twin fetuses’

heart rates, conducting ultrasound examinations, and

reducing Hinkley’s contractions. On the second day, an

ultrasound examination revealed that one of the twins had

died in utero. The ultrasound test, along with a Doppler

study, indicated that the other twin had “no major

anomalies.” However, later that day, the other twin died

in utero, as confirmed by a second ultrasound examination.

Hinkley then underwent a cesarean section to deliver the

dead fetuses. The preliminary post-operative diagnosis

regarding the cause of death was twin-to-twin transfusion

syndrome.2

Prior to trial, Hinkley filed a motion in limine to

exclude testimony from Charles Greenhouse, M.D., one of the

expert witnesses designated by the defendant doctors to

testify with regard to the standard of care. Hinkley

2
No autopsies were performed on the twin fetuses;
therefore, the cause of death was disputed at trial.

2
argued that Dr. Greenhouse did not meet the requirements of

Code § 8.01-581.20(A) because he had not practiced in the

field of obstetrics within one year of the date of the

alleged negligence and had not delivered a baby since 1998.

The circuit court took the motion under advisement until

Dr. Greenhouse testified at trial.

During the trial, the circuit court heard testimony,

outside the presence of the jury, from Dr. Greenhouse about

his qualifications. Dr. Greenhouse testified that he had

practiced medicine in the field of obstetrics and

gynecology for 33 years but that he “gave up delivering,

hands-on delivering obstetrics [in] November of 1998.”

Since 1998, Dr. Greenhouse had “been extremely active in

teaching . . . residents . . . , medical students and

interns [in] obstetrics and gynecology" as an associate

clinical professor at George Washington University Medical

School, and in performing consultative work with those

individuals, as well as with the partners in his six-person

medical practice. Dr. Greenhouse consulted primarily with

regard to high-risk pregnancy cases and associated

problems. Although Dr. Greenhouse testified that he had

consulted on two patients “which [he] actually went in and

spoke to,” he acknowledged that he was not the “primary

care physician for those patients” and had not been for any

3
obstetrical patient since November 1998. Dr. Greenhouse

explained that a primary care physician means “the doctor

who is responsible for that patient.” In Dr. Greenhouse’s

words, “I don’t deliver the patient; however, I am very

active in the consulting part.” Finally, Dr. Greenhouse

testified that he recently had been asked to be on the

editorial board review of a journal for obstetrics and

gynecology and to do “peer review work for the Medical

Gynecological Society in obstetrical cases.”

Based on this testimony, the circuit court concluded,

over Hinkley’s objection, that Dr. Greenhouse was qualified

and accordingly admitted him as an expert in the field of

obstetrics on both the standard of care and causation. The

court reasoned that Dr. Greenhouse’s consultative work on a

regular basis with physicians who practice obstetrics on a

daily basis qualified Dr. Greenhouse under the requirements

of Code § 8.01-581.20(A). The court also viewed the

provisions of that statute as requiring that “one with

certain qualifications shall be considered an expert [but

that the statute] doesn’t say that these are the only

qualifications that [a physician has] to have in order to

testify as an expert.” According to the court, “the

statute doesn’t say these are the only individuals” who

qualify.

4
 When the jury returned to the courtroom, Dr.

Greenhouse testified similarly with regard to his 33 years

of practice in the field of obstetrics and gynecology, and

his teaching and consulting work in the field of

obstetrics. He further stated that he has a full

gynecology practice, seeing “patients from all categories

gynecologically.” He again admitted that he had not been

the primary care physician for any pregnant mother or

delivered a baby since November 1998.

In order to qualify as an expert on the standard of

care in a medical malpractice action, a witness must

satisfy the statutory criteria set forth in Code § 8.01-

581.20(A). Perdieu v. Blackstone Family Practice Ctr.,

Inc., 264 Va. 408, 419, 568 S.E.2d 703, 709 (2002); see

also Sami v. Varn, 260 Va. 280, 283, 535 S.E.2d 172, 174

(2000) (“[t]he qualification of a witness as an expert is

governed by Code § 8.01-581.20”). In relevant part, that

statute states:

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.

5
Code § 8.01-581.20(A). We previously characterized these

requisites as the “knowledge requirement” and the “active

clinical practice requirement.” Wright v. Kaye, 267 Va.

510, 518, 593 S.E.2d 307, 311 (2004). Contrary to the

circuit court’s comments when ruling on the motion in

limine, both of the requirements must be satisfied before

an expert can testify as to the standard of care. Id.

In this case, the active clinical practice requirement

is at issue, i.e., whether Dr. Greenhouse’s teaching and

consulting work within one year of the date of the alleged

negligence forming the basis of the action constituted an

“active clinical practice” within the intendment of Code

§ 8.01-581.20(A). “[W]hether a proffered witness meets the

active clinical practice requirement is . . . determined by

reference to the relevant medical procedure.” Id. at 522,

593 S.E.2d at 313. For example, in Wright, the relevant

procedure was “laparoscopic surgery in the female pelvic

area near the bladder involving a surgical stapler.” Id.

We found that the plaintiff’s experts in that case had an

active clinical practice with regard to the procedure at

issue within the one-year statutory window. Id. However,

the crux of that case, with regard to the active clinical

practice requirement, focused on and rejected the defendant

doctor’s argument that an active clinical practice in the

6
defendant’s specialty meant that “an expert witness must

have performed the same medical procedure with the same

pathology in all respects as gave rise to the alleged act

of malpractice at issue in order to have practiced in the

defendant’s specialty.” Id. at 523, 593 S.E.2d at 314.

In contrast, the expert witness in Fairfax Hosp. Sys.,

Inc. v. Curtis, 249 Va. 531, 457 S.E.2d 66 (1995), did not

qualify under the provisions of Code § 8.01-581.20(A) even

though up until approximately two years prior to the

alleged negligence forming the basis of that action he had

worked as a professor of pediatrics and as medical director

of a hospital’s pediatric intensive care unit. Id. at 536-

37, 457 S.E.2d at 70. The expert’s work at the time of the

alleged negligence, as the director of a service that

transported sick and injured patients by helicopter, could

not be deemed an active clinical practice. Id. at 537, 457

S.E.2d at 70.

Likewise in Perdieu, we held that two expert witnesses

did not have an active clinical practice during the

relevant statutory time period. 264 Va. at 419-20, 568

S.E.2d at 709-10. The alleged negligence forming the basis

of that action concerned the care of nursing home patients,

including the diagnosis of fractures. Id. at 420, 568

S.E.2d at 710. One of the experts had previously worked as

7
the head of a hospital’s emergency medicine department and

had operated a “walk-in clinic for primary care.” Id. at

413, 568 S.E.2d at 706. However, during the relevant time

period, the expert had worked one day per week in a clinic

and one day per week at a county’s health department. He

had not treated fractures or cared for nursing home

patients. Id. at 420, 568 S.E.2d at 710. The other

expert’s prior experience had been in “the field of general

practice,” which had included the treatment of nursing home

patients and fractures. Id. at 415, 568 S.E.2d at 707.

However, since his retirement approximately eight years

before the alleged negligence at issue in that case, the

expert’s only work in the medical field had been as the

“medical officer” for a senior citizen softball league.

Id. We concluded that neither expert had “ ‘recently

engaged in the actual performance of the procedures at

issue’ ” in that case.3 Id. at 420, 568 S.E.2d at 710

(quoting Sami, 260 Va. at 285, 535 S.E.2d at 175).

Although these cases are instructive, they do not

provide a definitive answer in this case. This is so

because we have never, in those cases or otherwise, defined

3
We also found a third expert witness was not
qualified because her only experience with nursing home
patients was in an acute-care setting such as a hospital.
Perdieu, 264 Va. at 419-20, 568 S.E.2d at 709-10.

8
the phrase “active clinical practice” nor have we addressed

whether an expert who only taught and consulted in a

defendant’s specialty or a related field of medicine during

the statutory one-year window nevertheless had an “active

clinical practice” within the contemplation of Code § 8.01-

581.20(A). But, we have stated that we determine whether a

proffered expert witness satisfies the active clinical

practice requirement by referring to the “relevant medical

procedure” at issue in a case. Wright, 267 Va. at 522, 593

S.E.2d at 313. We also have explained that the phrase

“ ‘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.”

Id. at 523, 593 S.E.2d at 314. The question whether a

proffered expert witness met the active clinical practice

requirement must be analyzed in the same manner. Thus, in

this case, we determine whether Dr. Greenhouse, as a

teacher and consultant in the field of obstetrics,

fulfilled the active clinical practice requirement by

examining “the context of the actions by which the

defendant[s] [are] alleged to have deviated from the

standard of care.” Id.

The alleged negligence forming the basis of this

action arose out of the direct patient care provided to

9
Hinkley during her pregnancy; and the management,

treatment, and delivery decisions that were made when she

sought medical attention because of decreased fetal

movements and contractions. Hinkley alleged in the motion

for judgment that the defendant doctors were negligent by

failing to provide proper medical treatment, primarily

testing; and by failing to intervene surgically to save the

life of the remaining twin after one had died in utero.

Her expert witnesses testified that the defendant doctors

breached the standard of care by failing to perform certain

tests to determine, not just whether the twins were alive,

but also whether they were in distress. They further

opined that the standard of care required that a

recommendation be made to the parents to proceed with

delivery especially after one of the twins had died in

utero.

However, within the one-year statutory time period,

Dr. Greenhouse did not directly care for, provide treatment

or management to, or make delivery decisions for any

pregnancy. In other words, he had not, as a teacher and

consultant in the field of obstetrics, provided direct

patient care for any pregnancy since November 1998. Yet,

this type of direct patient care is “the context of the

actions by which the defendant[s] [are] alleged to have

10
deviated from the standard of care.” Wright, 267 Va. at

523, 593 S.E.2d at 314. Thus, we conclude that Dr.

Greenhouse did not satisfy the active clinical practice

requirement.

The defendants acknowledge on brief that “the only

issue was whether the defendant physicians met the

applicable standard of care in their evaluation,

management, and treatment of . . . Hinkley’s evolving

calamity.” They argue that, since this case is not about a

specific procedure that the defendant doctors physically

performed or the technique of delivering babies, Dr.

Greenhouse was qualified under Code § 8.01-581.20(A)

because he was actively engaged in the management of

problems associated with pregnancies. The defendants argue

that the only thing Dr. Greenhouse no longer did was

personally to deliver babies. We agree that neither a

specific procedure nor the physical process of delivering a

baby is at issue here, but Dr. Greenhouse did not evaluate,

manage, or treat problems in pregnancies in the context of

direct patient care as did the defendant doctors. Nor are

we persuaded otherwise by Dr. Greenhouse’s testimony that

he actually talked to two patients for whom he was acting

as a consultant. Moreover, his testimony in that regard

11
did not indicate whether that particular consultation

occurred within the statutory time period.

As we have said on many occasions, ascertaining

whether a proffered witness is qualified to testify as an

expert is a determination lying within the sound discretion

of the trial court. Wright, 267 Va. at 520, 593 S.E.2d at

312; Perdieu, 264 Va. at 418, 568 S.E.2d at 709; Noll v.

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

Swersky v. Higgins, 194 Va. 983, 985, 76 S.E.2d 200, 202

(1953). “A trial court will not be reversed for allowing a

witness to testify as an expert unless it appears clearly

that he was not qualified in the field in which he gives

evidence.” Swersky, 194 Va. at 985, 76 S.E.2d at 202.

There is not, as suggested by the defendants, a lower

standard of appellate review when a trial court excludes

the testimony of a proffered expert witness as compared to

when the court admits the testimony. “ ‘A trial court’s

exercise of its discretion in determining whether to admit

or exclude evidence will not be overturned on appeal absent

evidence that the trial court abused that discretion.’ ”

Wright, 267 Va. at 517, 593 S.E.2d at 310 (emphasis added)

(quoting May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690,

692 (2002)).

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 For the reasons stated, we conclude that the circuit

court abused its discretion in this case by permitting Dr.

Greenhouse to testify as to the standard of care. In the

context of the alleged negligence at issue, Dr.

Greenhouse’s work as a teacher and consultant did not

satisfy the active clinical practice requirement set forth

in Code 8.01-581.20(A).4 One of the purposes of that

requirement is to prevent testimony by individuals who do

not provide healthcare services in the same context in

which it is alleged that a defendant deviated from the

standard of care. Today’s decision is in accord with that

purpose.

Finally, we reject the defendants’ argument that any

error by the circuit court in allowing Dr. Greenhouse to

testify was harmless. The defendants assert that Dr.

Greenhouse testified about not only the standard of care

but also causation, that Hinkley has not articulated any

reason why Dr. Greenhouse was not qualified to testify as

to the issue of causation, and that the “jury’s verdict was

far more likely decided on the issue” of causation. This

last assertion is purely speculative; neither the

4
However, we find no merit in Hinkley’s argument that
Dr. Greenhouse did not satisfy the requirements of Code
§ 8.01-581.20(A) merely because he personally had never had
an obstetrical patient with twin-to-twin transfusion
syndrome.

13
defendants nor this Court can ascertain on what issue the

jury returned its verdict in favor of the defendants. See

Schlimmer v. Poverty Hunt Club, 268 Va. 74, 80, 597 S.E.2d

43, 46 (2004) (finding error was not harmless because we

could not determine whether the jury returned a verdict for

the defendant due to lack of primary negligence or due to

plaintiff’s contributory negligence).

Furthermore, the error in allowing Dr. Greenhouse to

testify with regard to the standard of care “is presumed to

be prejudicial unless it plainly appears that it could not

have affected the result.” Spence v. Miller, 197 Va. 477,

482, 90 S.E.2d 131, 135 (1955); accord Clohessy v. Weiler,

250 Va. 249, 254, 462 S.E.2d 94, 97 (1995). In this case,

it does not plainly appear from the record that the error

could not have affected the jury’s verdict. This is so

despite the fact that the defendants had another expert

witness, Wade A. Neiman, M.D., who testified as to both

standard of care and proximate causation.

However, Dr. Greenhouse’s testimony was in many

respects more detailed than Dr. Neiman’s testimony. The

jury also could have accorded more weight to Dr.

Greenhouse’s testimony overall because of his 33 years of

experience in the practice of medicine. See Black v.

Bladergroen, 258 Va. 438, 446, 521 S.E.2d 168, 172 (1999)

14
(considering qualifications of expert witness whose

testimony was excluded in deciding issue of harmless

error).

For these reasons, we will reverse the judgment of the

circuit court and remand this case for a new trial.5

Reversed and remanded.

5
In light of our decision, we do not decide whether
Dr. Greenhouse was qualified to testify solely on the issue
of causation. We simply point out that the requirements of
Code § 8.01-581.20(A) speak only to qualifications needed
for an expert to testify about the standard of care.

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