Present: All the Justices
MARIAN B. CHRISTIAN
OPINION BY
v. Record No. 031540 JUSTICE LAWRENCE L. KOONTZ, JR.
June 10, 2004
SURGICAL SPECIALISTS OF
RICHMOND, LTD., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
In this appeal, we consider whether the trial court erred
in refusing to qualify as an expert witness a physician called
by the plaintiff in this medical malpractice case.
BACKGROUND
On October 11, 2000, Marian B. Christian (Christian) filed
a motion for judgment against Dr. Bruce Rowe and Surgical
Specialists of Richmond, Ltd., Dr. Rowe’s corporate employer
(collectively, Dr. Rowe), in the Circuit Court of the City of
Richmond. In that pleading and in a subsequent bill of
particulars, Christian alleged that on September 22, 1994, her
colon was perforated during a laparoscopic gynecological
procedure performed by Dr. Rowe to remove a large pelvic cyst.
Christian specifically alleged that Dr. Rowe was negligent in
failing to inspect her colon and to repair the perforation
during this procedure. Christian further asserted that as a
direct result of Dr. Rowe’s negligence she was required to
undergo an emergency procedure to repair the perforation, had
suffered various permanent injuries, and was entitled to
$1,000,000 in damages. Dr. Rowe denied that he had breached the
applicable standard of care in his treatment of Christian.
During a subsequent jury trial, Christian called Dr.
Frederick A. Gonzalez, who had reviewed the hospital records
regarding her surgery, as her only expert witness. Whether Dr.
Gonzalez qualified as an expert, pursuant to the provisions of
Code § 8.01-581.20, immediately became an issue for the trial
court to resolve. In response to questioning by counsel for
both parties, Dr. Gonzalez testified at some length regarding
his professional background. His testimony established that, at
the time of trial, Dr. Gonzalez was an obstetrician/gynecologist
licensed to practice in California and New York. He held the
position of Chief of Obstetrics at Elmhurst Hospital Center in
Queens, New York, where he specialized in maternal-fetal care, a
sub-specialty of obstetrics/gynecology. Dr. Gonzalez maintained
an active clinical practice in gynecological surgery and had
done so since before September of 1994, the date of Dr. Rowe’s
alleged negligent act. In his practice, Dr. Gonzalez had
performed "hundreds" of exploratory laparotomies and
hysterectomies and numerous cystectomies. In addition to his
practice and his other duties at Elmhurst Hospital Center, Dr.
Gonzalez had been teaching residents gynecological surgery
procedures for a number of years.
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Following the presentation of this undisputed testimony,
the focus of the issue became whether Dr. Gonzalez was qualified
to give an expert opinion on the standard of care applicable in
Virginia with regard to the specialty or field of medicine in
which Dr. Rowe practiced in the context of Christian’s assertion
of negligence against Dr. Rowe in this particular case. Dr.
Gonzalez testified that he was aware of the standard of care
applicable to basic surgical procedures in Virginia because he
had discussed laparoscopic and abdominal surgical procedures
with "other surgeons in Virginia" while attending meetings and
seminars held in Virginia. He explained that there are "no
great differences between one state or another as to the basic
surgical principles. The treatment across the country is fairly
uniform and especially when it comes to basic principles. We’re
not talking about controversies here or advanced surgical
issues."
Dr. Gonzalez further explained that while for "[c]omplex
issues there are differences of opinion," the standard of care
for discovering an inadvertent perforation of the colon during a
gynecological laparoscopic procedure "is not something complex,
[these are] just basic surgical principles . . . [that have]
been taught a certain way for decades." He further indicated
that he had testified as an expert witness on basic surgical
principles in trials in Massachusetts, Connecticut, New York,
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New Jersey, Pennsylvania, Alabama, and Puerto Rico, and had
reviewed relevant literature on the procedure performed on
Christian contained in the "basic textbook sent state by state"
and available "worldwide."
Dr. Rowe then questioned Dr. Gonzalez as to whether he had
ever testified before in a gynecological surgery case, rather
than in cases involving maternal-fetal care. Dr. Gonzalez
replied that he had testified as an expert in cases involving a
"perforation following abortions . . . a couple of times," in
another case involving a perforation during a hysterectomy, and
in a case involving laparoscopic surgery that "went to open"
surgery. He further indicated that each year he performed at
least "two to three" laparoscopic surgeries of the specific type
performed by Dr. Rowe on Christian. Upon further questioning by
Christian, Dr. Gonzalez stated that he was familiar with the
medical schools and facilities in Virginia and that "they adhere
to the oldest standards across the United States."
The trial court ruled that Dr. Gonzalez had not
demonstrated that he was "familiar with the statewide standard
of care" in Virginia and, thus, was not qualified to testify as
an expert in the case pursuant to Code § 8.01-581.20. Christian
conceded that without Dr. Gonzalez’s testimony she could not
establish a prima facie case of malpractice against Dr. Rowe.
Accordingly, the trial court granted Dr. Rowe’s motion to strike
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Christian’s evidence and granted summary judgment for Dr. Rowe.
We awarded Christian this appeal.
DISCUSSION
Code § 8.01-581.20 expresses the intent of the General
Assembly regarding the admissibility of the testimony of a
medical expert in an action against a physician to recover
damages alleged to have been caused by medical malpractice
occurring in this Commonwealth. In pertinent part, Code § 8.01-
581.20(A) provides that:
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.
(Emphasis added).
In the present case, it is conceded that Dr. Gonzalez is
not licensed to practice medicine in Virginia. Although Dr.
Gonzalez is licensed to do so in California and New York,
Christian did not attempt to produce evidence that would
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establish that he meets the educational and examination
requirements for licensure in Virginia. For these reasons, Dr.
Gonzalez was not entitled to the presumption of the
admissibility of his testimony as an expert witness under Code
§ 8.01-581.20(A). Without that presumption, the question
becomes whether Dr. Gonzalez was entitled to qualify as an
expert witness under the alternative provisions of this statute
which are quoted in emphasis above.
In resolving that question, we are guided by well-
established principles. "Whether a witness demonstrates expert
knowledge of the appropriate standards of [another physician’s]
specialty is a question largely within the sound discretion of
the trial court." Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d
172, 174 (2000); Lawson v. Elkins, 252 Va. 352, 354, 477 S.E.2d
510, 511 (1996). "[T]here is no rigid formula to determine the
knowledge or familiarity of a proffered expert concerning the
Virginia standard of care. Instead, that knowledge may derive
from study, experience, or both." Henning v. Thomas, 235 Va.
181, 186, 366 S.E.2d 109, 112 (1988). "However, we will reverse
a holding that a witness is not qualified to testify as an
expert when it appears clearly from the record that the witness
possesses sufficient knowledge, skill, or experience to make him
competent to testify as an expert on the subject matter at
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issue." Sami, 260 Va. at 284, 535 S.E.2d at 174 (citing Noll v.
Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)).
The thrust of Dr. Rowe’s assertion that Christian failed to
establish that Dr. Gonzalez is familiar with the Virginia
standard of care applicable in this case is that Dr. Gonzalez
was relying solely upon his familiarity with a nationwide
standard of care. We disagree with this assertion.
Initially we observe, as we have in prior decisions, that
"[n]either the General Assembly nor this Court has ever
recognized a nationwide standard of care." Poliquin v. Daniels,
254 Va. 51, 55, 486 S.E.2d 530, 533 (1997). And "[w]e have no
intention of retreating from the position . . . that it is for
the General Assembly to say whether a national standard of care
should apply in Virginia." Black v. Bladergroen, 258 Va. 438,
443, 521 S.E.2d 168, 170 (1999). We further observe, however,
that "[no] provision of law prohibits Virginia physicians from
practicing according to a national standard of care if one
exists for a particular specialty, even though neither the
General Assembly nor this Court has adopted such a standard."
Id.
In the present case, Dr. Gonzalez did not testify that he
would base his opinion on a national standard of care. Rather,
he testified that he was familiar with the standard of care
applicable to basic gynecological surgical procedures in
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Virginia. Although he amplified this testimony by stating that
"surgery is surgery . . . . Virginia is another state just like
any other state," Dr. Gonzalez affirmatively testified that he
had gained his knowledge of the Virginia standard of care
through discussions with physicians in Virginia, and while
attending seminars and meetings in Virginia concerning
laparoscopic surgery. The clear implication of his testimony as
a whole was that he was familiar with the Virginia standard of
care applicable to the surgical procedure performed by Dr. Rowe,
which coincidentally was the national standard of care.
As in Sami, nothing in the record contradicts Dr.
Gonzalez’s testimony concerning his knowledge of the Virginia
standard of care applicable to the alleged malpractice in this
case or how he obtained that knowledge. The trial court was not
entitled to ignore this uncontradicted testimony. Sami, 260 Va.
at 284, 535 S.E.2d at 174. Moreover, the record also supports a
finding that Dr. Gonzalez maintained an active clinical practice
in and was familiar with Dr. Rowe’s specialty or a related field
of medicine. Accordingly, we hold that the trial court clearly
abused its discretion in ruling that Dr. Gonzalez did not
demonstrate sufficient knowledge of the Virginia standard of
care at issue in this case to qualify as an expert witness
pursuant to the provisions of Code § 8.01-581.20.
CONCLUSION
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For these reasons, we will reverse the judgment of the
trial court and remand the case for further proceedings
consistent with this opinion.
Reversed and remanded.
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