Wright v. Kaye

PRESENT: All the Justices.

JENNIFER WRIGHT
OPINION BY
v. Record No. 030658 JUSTICE G. STEVEN AGEE
March 5, 2004
RICHARD C. KAYE, M.D.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge

Prior to trial in this medical malpractice case, the trial

court struck three standard of care expert witnesses designated

by plaintiff Jennifer Wright (“Wright”), based on the fact that

none had performed a urachal cyst excision, the exact medical

procedure performed upon the plaintiff by the defendant, Dr.

Richard C. Kaye (“Dr. Kaye”). With leave of court Wright

designated a fourth expert witness who had performed that

procedure, but the trial court also struck that expert. The

trial court then granted a motion for summary judgment by Dr.

Kaye, denied Wright’s motion for reconsideration, and dismissed

Wright’s case with prejudice.

On appeal to this Court, Wright assigns error to the trial

court’s rulings striking all of her expert witnesses, the use of

depositions as a basis for the court’s decisions, the grant of

summary judgment, and the denial of her motion for

reconsideration. She also assigns error to the trial court’s

denial of certain motions in limine.
 I. BACKGROUND

On August 20, 1997, Dr. Kaye performed diagnostic

laparoscopic surgery on Wright to discover the source of her

chronic pelvic pain. During the procedure he found a cyst on

her urachus.1 Using an internal surgery and suturing device

known as an endo-GIA surgical stapler, Dr. Kaye excised the cyst

and stapled the affected area closed, noting in his operative

report that “[i]t appeared that this was done away from the

bladder.”

Following removal of the cyst, Wright’s bladder was filled

with methylene blue and Dr. Kaye noted none was observed in the

pelvis. Dr. Kaye did not perform a cystoscopy to visualize the

dome of the bladder to determine whether staples were inserted

into it during the cyst excision procedure.

Following the surgery, Wright began to experience urinary

frequency and urgency with bladder spasms. Eventually she

consulted physicians other than Dr. Kaye when her symptoms

continued unabated. Approximately one year after the surgery,

another surgeon discovered and removed six surgical staples from

Wright’s bladder, apparently left from the urachal cyst

1
The “urachus” is “[a]n epithelioid cord surrounded by
fibrous tissue extending from the apex of the bladder to the
umbilicus. In the embryo, it is continuous with the allantoic
stalk; postnatally it forms the middle umbilical ligament of the
bladder.” Taber's Cyclopedic Medical Dictionary 2180 (19th ed.
2002).

2
laparoscopy. Wright continues to suffer permanent bladder

dysfunction.

Prior to trial Wright designated three expert witnesses2

(“Wright’s experts”) to testify regarding the applicable

standard of care. Wright’s experts specialized in the same

field of medicine as Dr. Kaye, obstetrics and gynecology, and

two of them had subspecialties in urogynecology. Although

Wright’s experts had all performed multiple laparoscopic

surgeries, including the removal of cysts in the female pelvic

area near the bladder in procedures employing a surgical

stapler, each testified in depositions they had never removed a

cyst located on the urachus. Dr. Kaye moved the trial court to

strike Wright’s experts on the basis that “none of these experts

have ‘recently engaged in the actual performance of the

procedures at issue in [the] case.’ ” Approximately four weeks

prior to trial, the trial court granted Dr. Kaye’s motion and

struck Wright’s experts, finding they lacked “knowledge of this

particular specialty.”

After Wright’s experts were stricken, Dr. Kaye moved for

summary judgment claiming Wright did not have the required

experts to support her allegations of breach of the standard of

2
For purposes of this opinion Dr. Bruce A. Rosenzweig, Dr.
Mickey M. Karram and Dr. Michael A. Ross are included in the
term “Wright’s experts.” Dr. Charles M. Jones is excluded from
that term and referred to by name.

3
care. Wright moved for a continuance and leave to designate a

new expert witness. The trial court deferred ruling on Dr.

Kaye’s motion until the trial date and granted Wright’s motion

to file a supplemental designation of experts. The trial court

did not rule on Wright’s motion for a continuance, but took it

under advisement pending the trial date to await the designation

of an expert. Wright timely designated a new expert witness,

Dr. Charles M. Jones (“Dr. Jones”).

Dr. Kaye had previously designated a standard of care

expert, Dr. Hans-Barthold Krebs (“Dr. Krebs”), a shareholder in

the same professional corporation as Wright’s current treating

physician, Dr. Jeffrey A. Welgoss (“Dr. Welgoss”), who was to

testify for Wright. Wright filed a motion in limine to exclude

and disqualify Dr. Krebs as an expert witness asserting it would

be a conflict of interest for him to testify because of the

professional relationship between Drs. Krebs and Welgoss.

Further, Wright contended that Dr. Krebs’ testimony would

violate the patient-physician relationship protected by Code

§ 8.01-399. Wright’s motion was denied.

Wright also filed a motion in limine seeking to exclude any

testimony regarding pre-operative discussions between Wright and

Dr. Kaye concerning the risks of surgery. Wright argued that

since she did not claim that Dr. Kaye failed to obtain her

informed consent, any testimony concerning discussion of the

4
risks of surgery was not relevant to either negligence or

causation and would only confuse the jury. The trial court

denied Wright’s motion.

Wright filed additional motions in limine to exclude

testimony by Dr. Kaye of an intraoperative consultation he

undertook by telephone with Dr. Guillermo Gil-Montero (“Dr. Gil-

Montero”) during Wright’s surgery and to prohibit testimony

about a prior urachal cyst surgery performed by Dr. Kaye on an

unrelated patient. The trial court denied both motions.

On October 28, 2002, the date set for trial, the trial

court found that Wright’s designation of Dr. Jones raised new

issues prejudicial to Dr. Kaye such that Dr. Jones would not be

permitted to qualify as an expert witness and testify.

The trial court then denied Wright’s motion for a

continuance and granted Dr. Kaye’s motion for summary judgment.3

Subsequently, the trial court denied Wright’s motion for

reconsideration of its prior decisions and dismissed Wright’s

case with prejudice. We granted Wright this appeal.

II. STANDARD OF REVIEW

“A trial court's exercise of its discretion in determining

whether to admit or exclude evidence will not be overturned on

3
Wright objected to the use of deposition testimony as a
basis for striking Wright’s experts and, in turn, granting
summary judgment. As later noted, we do not reach that issue in
the resolution of this appeal.

5
appeal absent evidence that the trial court abused that

discretion.” May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690,

692 (2002) (citing John v. Im, 263 Va. 315, 320, 559 S.E.2d 694,

696 (2002)). Likewise, “whether a witness is qualified to

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

the trial court.’ ” Perdieu v. Blackstone Family Practice

Center, Inc., 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)); see also Swersky v. Higgins, 194 Va. 983, 985, 76

S.E.2d 200, 202 (1953). However, in an action alleging medical

malpractice, we will overturn a trial court’s exclusion of a

proffered expert opinion “when it appears clearly that the

witness was qualified." Perdieu, 264 Va. at 418, 568 S.E.2d at

709 (quoting Noll, 219 Va. at 800, 250 S.E.2d at 744).

III. WRIGHT’S EXPERTS AND SUMMARY JUDGMENT

A physician licensed in Virginia is presumed to know the

standard of care in that physician’s specialty or field of

medicine. Code § 8.01-581.20(A). The presumption also attaches

to out-of-state physicians who meet the educational and

examination requirements of the statute.4 See, e.g., Black v.

Bladergroen, 258 Va. 438, 443, 521 S.E.2d 168, 170 (1999). It

4
It was uncontested that Dr. Ross is a Virginia licensed
physician and Drs. Rosenzwieg and Karram met the educational and

6
is uncontradicted that Wright’s experts were specialists in the

medical field of obstetrics and gynecology, with extensive

experience in laparoscopic surgery in the female pelvic region

near the bladder including the removal of cysts. All had

experience with the endo-GIA surgical stapler and in performing

cystoscopies to inspect the dome of the bladder. Accordingly,

the statutory presumption that Wright’s experts knew the

standard of care for Dr. Kaye’s specialty field of medicine

applied to each of them.

The issue in this case, although not specifically

articulated by the trial court, is whether that presumption was

rebutted so as to disqualify Wright’s experts from testifying as

expert witnesses in this case. Under Code § 8.01-581.20(A), a

witness to whom the presumption applies may nonetheless be

disqualified as an expert witness if he does not meet either of

two statutory requisites: (1) to “demonstrate[] expert knowledge

of the standards of the defendant’s specialty and of what

conduct conforms or fails to conform to those standards”

(“knowledge requirement”) or (2) to show that he had an “active

clinical practice in either the defendant’s specialty or related

field of medicine within one year of the date of the alleged act

or omission forming the basis of the action” (“active clinical

examination requirements for licensure in Virginia. All were
board certified in Obstetrics and Gynecology.

7
practice requirement”). Conversely, “[a] witness shall be

qualified to testify as an expert” if both statutory requisites

are met. Code § 8.01-581.20(A) (emphasis added).

Citing our opinion in Sami v. Varn, 260 Va. 280, 535 S.E.2d

172 (2000), Dr. Kaye moved to strike Wright’s experts alleging

that “none of these experts have ‘recently engaged in the actual

performance of the procedures at issue in [the] case.’ ” Dr.

Kaye thus contended that Wright’s experts failed to meet the

active clinical practice requirement.

The trial court granted Dr. Kaye’s motion and struck

Wright’s experts because they did “not have sufficient expert

knowledge regarding the medical procedure at issue in this case

(i.e., urachal cystectomy) to qualify them as expert witnesses

pursuant to . . . Code § 8.01-581.20.” The trial court did not

rule directly on Dr. Kaye’s claim that Wright’s experts failed

to meet the active clinical practice requirement, but based its

decision on failure to satisfy the knowledge requirement. As

support for its ruling, the trial court referenced our decision

in Lawson v. Elkins, 252 Va. 352, 477 S.E.2d 510 (1996), and

noted the uncontested facts that

[n]one of these three witnesses have ever
performed an urachal cystectomy in the past; none
have ever seen it performed; none have ever been
taught how to perform it; none have ever
published, lectured, or attended continuing
medical education courses in reference to urachal
cystectomies.

8
 Wright asserts on appeal that the trial court erred in

striking her experts because Dr. Kaye did not rebut the

statutory presumption. She avers her experts met both statutory

requisites when viewed in the context of the medical procedure

at issue. Wright’s position is that excision of an urachal cyst

is not the relevant medical procedure for evaluating either

statutory requisite because that is not the alleged act upon

which the claim of malpractice is based. Instead, she contends

the medical procedure at issue is the performance of

laparoscopic surgery in the female pelvic region near the

bladder using a surgical stapler and it is upon that basis the

qualification of her experts must be judged.

Dr. Kaye urges affirmance of the trial court, contending

the failure to actually perform, witness or be schooled in

removal of a cyst from the urachas proves Wright’s experts fail

the knowledge requirement and the statutory presumption is

thereby rebutted. Dr. Kaye also contends, as an alternate

ground of affirmance, that the failure to actually perform

urachal cyst excision within the statutory time window confirms

that Wright’s experts fail to meet the active clinical practice

requirement as now defined under our decisions in Sami and

Perdieu. Dr. Kaye’s position is that urachal cyst excision is

the only relevant medical procedure by which either the

9
knowledge or active clinical practice requisites are to be

measured in this case. He argues removing an urachal cyst is

such a unique procedure that it mandates a specific esoteric

knowledge and practice requirement as a condition precedent for

any expert witness.

For the reasons stated below, we disagree with Dr. Kaye and

hold the trial court’s grant of the motion striking Wright’s

experts was in error.

The question whether a witness is qualified to
testify as an expert is “largely within the sound
discretion of the trial court.” Noll v. Rahal,
219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)
(citing Swersky v. Higgins, 194 Va. 983, 985, 76
S.E.2d 200, 202 (1953)). In the context of a
medical malpractice action, this determination
must be made with reference to Code § 8.01-
581.20. “A decision to exclude a proferred
expert opinion will be reversed on appeal only
when it appears clearly that the witness was
qualified.” Noll, 219 Va. at 800, 250 S.E.2d at
744, (citing Landis v. Commonwealth, 218 Va. 797,
800, 241 S.E.2d 749, 751 (1978)).

Perdieu, 264 Va. at 418, 568 S.E.2d at 709.

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

Sami, 260 Va. at 284, 535 S.E.2d at 174.

Wright does not allege in her motion for judgment any

injury to the urachus or that removal of the urachal cyst by

10
laparoscopic surgery using a stapler, in and of itself, was a

deviation from the applicable standard of care. Indeed, Wright

represented to the trial court that “the decision of the

Defendant Kaye to remove the urachal cyst during the diagnostic

laparoscopic surgery for pelvic pain, proceeding with a

laparoscopic approach to remove the cyst and to use the Endo

stapler as a method of excising the cyst have not been

criticized.”

What Wright does allege is that Dr. Kaye deviated from the

applicable standard of care when he failed to follow proper

medical procedures by injuring an organ (the bladder) away from

his operative field (the urachus). Specifically, she pled Dr.

Kaye got too close to the bladder when firing staples because he

failed to properly visualize the plane of the bladder during the

surgery, causing the staples to enter the dome of the bladder.

Further, she pled that Dr. Kaye violated the standard of care

required when operating in the vicinity of the bladder by

failing to inspect the dome of the bladder cystoscopically prior

to concluding surgery. Accordingly, Wright argues the medical

procedure at issue to evaluate the statutory requisites is

laparoscopic surgery in the female pelvic region near the

bladder.

The record does not reflect evidence establishing a unique

standard of care for urachal cyst surgery as it relates to the

11
injury of the bladder or other organs outside that operative

field which differs from the standard of care for other surgery

adjoining the bladder. The medical literature Dr. Kaye

references supports Wright’s position that urachal cyst excision

is the application of general surgery techniques for related

procedures:

“Laparoscopic technique for urachal sinus/cyst
excision is an extension of the surgical
principles used in the reported cases. The skill
and expertise necessary for performing this
particular operation were acquired in performing
the other procedures.”

Nelson M. Stone, et al., Laparoscopic Excision of a Urachal

Cyst, 45 Urology 161, 163 (1995).

Dr. Kaye’s own proffered deposition testimony established

he “intended to stay clear of the bladder” which was “at least

two centimeters, three centimeters” from the urachal cyst. He

also testified that in performing Wright’s surgery he intended

“to not incorporate the bladder into the procedure because it

wouldn’t have furthered the procedure and benefitted the patient

in any manner.” Further, Dr. Kaye also stated that he knew

placing a staple into the bladder could cause injury to it and

“would not have served any constructive purpose in her surgery

to staple the dome of the bladder.”

We determined in Lawson that the rejected expert failed to

meet the knowledge requirement of the statutory test because he

12
did not have sufficient knowledge of the applicable standards of

care for the medical procedure at issue. 252 Va. at 354-55, 477

S.E.2d at 511. While the location of the intended medical

treatment in Lawson was a disc (whereas here it was the

urachus), chemonucleolysis was the medical procedure at issue

for purposes of determining the knowledge requirement. Id.

Similarly, the issue in the instant case is the standard of care

for laparoscopic surgery in the vicinity of the bladder

involving use of a surgical stapler.

If Wright’s theory of the case were pled to claim injury to

the urachus or that removing the urachal cyst with a stapler, in

and of itself, was below the standard of care, Dr. Kaye’s

argument might prevail. But the acts Wright claims form the

basis of her action and violate the standard of care are medical

procedures applicable during laparoscopic surgery in the female

pelvic region in the vicinity of the bladder. Whether Wright’s

experts had knowledge of the standard of care for those

procedures determines whether they met the statutory requisites.

When seen in terms of the medical procedure at issue in the

case at bar, it is clear that Wright’s experts were qualified as

to the knowledge requirement of the statutory requisites.

Perdieu, 264 Va. at 418, 568 S.E.2d at 709. It is uncontested

that Wright’s experts, by education, training and practice have

extensive and contemporary knowledge of the standard of care in

13
Dr. Kaye’s field of medicine involving female pelvic

laparoscopic surgery, including the removal of cysts and similar

pathologies around the bladder by surgical stapler. The record

reflects Wright’s experts possess “sufficient skill, knowledge,

or experience to make [them] competent to testify as an expert

on the subject matter at issue.” Sami 260 Va. at 284, 535

S.E.2d at 174. Dr. Kaye thus failed to rebut the statutory

presumption and the trial court therefore erred in granting the

motion to strike Wright’s experts.

While we conclude the trial court erred in its application

of the knowledge requirement of the statutory requisites, that

does not end our inquiry. Dr. Kaye’s motion to strike Wright’s

experts also alleged failure to meet the active clinical

practice requirement. He argues on appeal this is an

alternative basis upon which the trial court’s judgment should

be affirmed, as failure to meet either statutory requisite would

disqualify a proffered expert witness.

The General Assembly has required in § 8.01-581.20(A) that

an expert witness in a medical malpractice action have “had

active clinical practice in . . . the defendant’s specialty

. . . within one year of the date of the alleged act or omission

forming the basis of the action.” As with the knowledge

requirement, determining whether a proffered witness meets the

active clinical practice requirement is also determined by

14
reference to the relevant medical procedure. In this case, we

have already determined that procedure to be laparoscopic

surgery in the female pelvic area near the bladder involving a

surgical stapler. The uncontested evidence is that Wright’s

experts had such a practice within the required statutory window

of time. Accordingly, Wright’s experts would appear to satisfy

the active clinical practice requirement.

However, Dr. Kaye contends that our decisions in Sami and

Perdieu restrictively define “defendant’s specialty” in the

context of the active clinical practice requirement. Dr. Kaye

avers that we used the phrase “actual performance of the

procedures at issue” to create an active clinical practice

requirement 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. In this case,

although the alleged act of malpractice is stapling of the

bladder due to defective visualization and failure to perform a

cystoscopy, Dr. Kaye argues that experience with female pelvic

laparoscopic operations near the bladder is insufficient because

the alleged negligent act was preceded by, or in the course of,

an urachal cyst excision. Dr. Kaye misreads our decisions.

In Sami we said:

15
 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 procedures is the
same.

260 Va. at 285, 535 S.E.2d at 175.

The issue in Sami was whether an obstetrician-gynecologist

testifying as to the standard of care for pelvic exams performed

by an emergency room physician fell within the “related field of

medicine” test when evaluating the active clinical practice

requirement. The related field of medicine test is not at issue

in this case. Further, in evaluating either statutory

requisite, the 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.

In this case, as noted above, that is not excision of the

urachal cyst, but injury to the bladder.

Taking examples from our recent cases, Dr. Kaye would read

Sami to require of an expert witness testifying under the facts

in Lawson as to treatment of a herniated disc at L4, to have

actually treated a disc at L4 and not L5 or L3. Otherwise, the

proffered expert would not have an active clinical practice in

16
the defendant’s specialty. Similarly, Dr. Kaye’s reading as

applied to the facts in Perdieu would require an expert witness

to have performed the actual fracture procedure as existed in

that case. If the injured party had fractured the left hip, Dr.

Kaye would argue that Sami requires only performance of the

actual procedure of treating a fractured left hip within the

one-year practice window, and not a fractured right hip, meets

the active clinical practice requirement. The General Assembly

did not intend to write such a narrow test.5

The phrase “actual performance of the procedures at issue

in a case” is not to be given a narrow construction inconsistent

with the plain terms of the statute. As with the statute’s

knowledge requirement, the relevant medical procedure for

purposes of satisfying the active clinical practice prerequisite

5
While expert testimony might establish a significant
medical distinction for a differing standard of care between a
medical procedure at L3 as opposed to L4 or the right hip
fracture as opposed to the left hip fracture, that distinction
is not to be assumed. Once the statutory presumption applies,
the burden rests on the party opposing the proposed expert to
produce some evidence establishing any distinction affecting the
standard of care regarding the medical procedures at issue.
There is none in this case.

17
is actual performance of female pelvic laparoscopic procedures

around the bladder for the reasons heretofore explained.6

Accordingly, because the record reflects Wright’s experts

demonstrated knowledge of the standard of care in Dr. Kaye’s

specialty and that they had an active clinical practice in that

specialty, they were qualified as expert witnesses in this case.

The trial court was therefore in error to strike Wright’s

experts and enter summary judgment for Dr. Kaye based on

Wright’s lack of expert witnesses to support her allegations of

the breach of the standard of care.7

IV. DR. KREBS

The next issue for consideration is whether the trial court

abused its discretion by failing to exclude Dr. Krebs as an

expert witness for the defendant. It did not.

Dr. Krebs is a member of Northern Virginia Pelvic Surgery

Associates, P.C. (“NVPSA”) as is Dr. Welgoss. Subsequent to the

6
Our use of the phrase “actual performance of the
procedures at issue” in Perdieu is consistent with this
explanation. The proposed and correctly rejected experts in
that case were not found to lack an active clinical practice
because they had treated a left versus a right hip fracture.
They were rejected as experts because they had not treated any
fractures of any kind during the statutory window of time for
satisfying the active clinical requirement.
7
As the trial court’s decision to strike Wright’s experts
is reversed, we do not reach Wright’s assignment of error that
the trial court erred in basing its decision in part on the
discovery depositions of Wright’s experts. Similarly, we do not
reach Wright’s assignment of error to the trial court’s ruling
striking Dr. Jones as an expert witness.

18
surgery by Dr. Kaye and the later removal by another surgeon of

the staples in her bladder, Wright had an initial office

consultation with Dr. Welgoss. Wright was moving to Colorado

and Dr. Welgoss referred her to a physician in that state. Upon

returning to Virginia, Wright resumed her doctor-patient

relationship with Dr. Welgoss, who also agreed to testify on

Wright’s behalf as an expert witness. Prior to Wright's return

to Virginia, but after the initial consultation with Dr.

Welgoss, Dr. Krebs agreed to assist Dr. Kaye as an expert

witness in the present litigation.

Wright asserts that unless she consents, Dr. Krebs is

barred from serving as an expert witness. She argues that a

doctor affiliated with a treating physician is automatically

barred from testifying for a party adverse to the patient. In

addition, Wright argues that Code § 8.01-399 bars physicians and

affiliated physicians from offering testimony regarding a

patient's care without the patient's consent. The trial court

rejected both of Wright’s arguments. We agree with the trial

court’s judgment.

A. Affiliated Experts

The question of affiliated experts presented by Drs. Krebs

and Welgoss is one of first impression in Virginia. The issue

is whether, in the medical malpractice context, a physician

employed in the same medical practice as the plaintiff’s medical

19
expert may testify on behalf of the defendant without the

plaintiff’s consent.

In Turner v. Thiel, 262 Va. 597, 553 S.E.2d 765 (2001), we

addressed a somewhat related issue concerning an expert employed

by one party who later switched sides and assisted an opposing

party, commonly termed “side-switching” experts. In Turner, we

adopted the test employed by the majority of courts to consider

that issue. The side-switching expert test is whether it was

“objectively reasonable for the first party who claims to have

retained the expert witness to conclude that a confidential

relationship existed between that party and the expert” and, if

so, “did the first party disclose any confidential or privileged

information to the expert witness.” Id. at 601, 553 S.E.2d at

768 (citations omitted). The party seeking disqualification

bears the burden as to both elements. Id.

The majority of courts analyzing the affiliated expert

issue utilize a test similar to the side-switching expert test

adopted in Turner. Under the majority rule, a court must

determine whether the moving party has produced “evidence that

any substantive information about the case has been exchanged

between the affiliated experts.” City of Springfield v. Rexnord

Corp., 111 F. Supp. 2d 71, 75 (D. Mass. 2000); In re Malden

Mills Indus., Inc., 275 B.R. 670, 673 (Bankr. D. Mass. 2002)

(“If an expert witness is affiliated with an expert for the

20
other side, the test for disqualification still revolves around

the transfer of confidential information.”). As in side-

switching cases, the party seeking disqualification bears the

burden of proof. Rexnord Corp., 111 F. Supp. 2d at 73.

We find the majority rule comparable to our test for side-

switching experts in Turner and hereby adopt the majority rule

governing affiliated experts. Therefore, we must decide whether

Wright, the party seeking disqualification, has offered

sufficient evidence that Drs. Krebs and Welgoss exchanged

confidential information regarding her treatment. The trial

court correctly found that Wright failed to carry this burden.

Wright notes that NVPSA's files are centrally located and

that the members of the firm occasionally discuss a particular

patient's care. However, Wright has offered no evidence that

Dr. Krebs and Dr. Welgoss shared confidential information (or

any information of any kind) regarding her care. Wright

asserted in her motion to exclude Dr. Krebs that she was not

required to prove an actual exchange of information because a

court should impute an exchange in the context of affiliated

experts. She is mistaken. Absent evidence of an actual

exchange of confidential information, an affiliated expert

should not be excluded and no disqualifying conflict exists.

21
 B. Code § 8.01-399

Alternatively, Wright argues that Code § 8.01-399 bars a

physician affiliated with a treating physician from testifying

adversely to a patient. That statute provides:

Except at the request or with the consent of the
patient, or as provided in this section, no duly
licensed practitioner of any branch of the
healing arts shall be required to testify in any
civil action, respecting any information that he
may have acquired in attending, examining or
treating the patient in a professional capacity.

Code § 8.01-399(A).

The plain language of Code § 8.01-399(A) leads to the

conclusion that Dr. Krebs is not barred by the statute from

serving as an expert for Dr. Kaye. First, Code § 8.01-399

states that no practitioner of the healing arts “shall be

required” to offer testimony. Dr. Krebs agreed to testify

voluntarily − his testimony was in no way “required”. Second,

the type of testimony barred is that acquired by a practitioner

“in attending, examining or treating the patient in a

professional capacity.” It is uncontested that Dr. Krebs did

not attend, examine, or treat Wright and thus could not offer

any testimony with respect to information he never so received.

Finally, the statute applies only to the “practitioner,” a

term not defined to include the practitioner's partners or

practice entity. That the General Assembly did not intend for

“practitioner” to be an all-inclusive term is evidenced by Code

22
§ 8.01-399(D)(1) describing communications between

“practitioners” and “that practitioner's employers, partners,

agents, servants, employees, [or] co-employees.” Clearly, the

General Assembly demonstrated in this very statute that it knows

how to differentiate between the “practitioner” and his

“partners” and did so. This negates any inference that

“practitioner” is an expansive term encompassing the

practitioner’s affiliated physicians.

For the reasons set forth above, the trial court correctly

denied Wright’s motion to exclude Dr. Krebs.

V. TESTIMONY REGARDING PRIOR SURGERY

Wright argues the trial court erred in denying her motion

in limine to exclude testimony concerning Dr. Kaye’s performance

of a previous surgery with Dr. Krebs for the removal of an

urachal cyst on an unrelated patient. The trial court

determined that testimony was admissible because “it would go to

the experience and training that was received by Dr. Kaye as

well as who provided the experience and training . . . in this

particular matter.”

Wright contends that testimony from Drs. Kaye or Krebs that

Dr. Kaye had previously performed the urachal cyst procedure

would amount to evidence that their “customary method” was

tantamount to the requisite standard of care. However, Wright

confuses the issue of the standard of care, for which evidence

23
about the customary method of treatment would not be admissible,

see King v. Sowers, 252 Va. 71, 471 S.E.2d 481 (1996), with the

common and relevant topic of a party physician’s training and

education.

We have consistently recognized that a physician’s training

and experience are relevant and probative of whether expert

testimony is admissible in a medical malpractice action. Grubb

v. Hocker, 229 Va. 172, 176, 326 S.E.2d 698, 700-01 (1985)

("[T]he knowledge necessary to qualify a witness to testify as

an expert might be derived from study alone, or experience, or

both.") (citing Noll, 219 Va. at 801, 250 S.E.2d at 745); see,

e.g., Perdieu, 264 Va. at 420, 568 S.E.2d at 710 (witnesses not

qualified because they had not “recently engaged in the actual

performance of the procedures at issue”); Sami, 260 Va. at 284,

535 S.E.2d at 174 (overruling trial court’s disqualification of

expert witness who had requisite knowledge of standard of care

for pelvic examinations).

It would create an anomalous and inequitable circumstance

should the proffered experts in a medical malpractice action be

required to show their training and experience in order to

qualify as an expert to testify as to the defendant’s

conformance to the standard of care, but yet prohibit that same

defendant from presenting the identical information about

himself. Evidence that Dr. Kaye had previously performed an

24
urachal cyst procedure is relevant and probative as to his

training and experience to undertake and perform a laparoscopic

female pelvic operation near the bladder in accordance with the

applicable standard of care. We thus find no error in this

ruling of the trial court.

VI. RISK OF SURGERY DISCUSSIONS

Wright filed a motion in limine to exclude evidence of

discussions between herself and Dr. Kaye as to the risk of

injury to the bladder during an urachal cystoscopy. The trial

court denied Wright’s motion, ruling from the bench:

I think indeed the jury knows that a prudent
doctor must advise patients concerning any risk
prior to surgery. If you don’t show that,
immediately you’ve implied that maybe this doctor
is negligent to begin with. So I would find that
it certainly would be fair to show that he did
what a prudent doctor would do and advise of that
particular risk.

Under the facts of this case, we hold the trial court’s

ruling to be erroneous. In resolving this issue, it is a

particularly salient fact that Wright does not plead or

otherwise place in issue any failure on the part of the

defendant to obtain her informed consent. Her claim is simply

that Dr. Kaye was negligent by deviating from the standard of

care in performing the medical procedure at issue.

Seen in that context, evidence of information conveyed to

Wright concerning the risks of surgery in obtaining her consent

25
is neither relevant nor material to the issue of the standard of

care. Further, the pre-operative discussion of risk is not

probative upon the issue of causation: whether Dr. Kaye

negligently performed the procedure.

Wright’s awareness of the general risks of surgery is not a

defense available to Dr. Kaye against the claim of a deviation

from the standard of care. While Wright or any other patient

may consent to risks, she does not consent to negligence.

Knowledge by the trier of fact of informed consent to risk,

where lack of conformed consent is not an issue, does not help

the plaintiff prove negligence. Nor does it help the defendant

show he was not negligent. In such a case, the admission of

evidence concerning a plaintiff’s consent could only serve to

confuse the jury because the jury could conclude, contrary to

the law and the evidence, that consent to the surgery was

tantamount to consent to the injury which resulted from that

surgery. In effect, the jury could conclude that consent

amounted to a waiver, which is plainly wrong. See Waller v.

Aggarwal, 688 N.E.2d 274, 275-76 (Ohio Ct. App. 1996).

Accordingly, we hold the failure to grant Wright’s motion

in limine on this issue was error by the trial court.

VII. STATEMENTS OF DR. GIL-MONTERO

Wright also sought to bar Dr. Kaye from testifying at trial

regarding an intraoperative consultation he had with an

26
urologist, Dr. Gil-Montero. According to the proffered

testimony, Dr. Kaye would testify that Dr. Gil-Montero consulted

with him during Wright’s surgery and informed him he was far

enough from the bladder to safely use the Endo-stapler and that

no cystoscopy was needed prior to closing the surgery. However,

Dr. Gil-Montero could not testify, much less be cross-examined,

as to the truth or falsity of what Dr. Kaye would testify he

said, because it is uncontested Dr. Gil-Montero has no

recollection of the events.

The trial court denied Wright’s motion, ruling from the

bench that Dr. Kaye’s proposed testimony of Dr. Gil-Montero’s

statements was not offered “for the truth of what indeed the

doctor said, that is Dr. Gil-Montero, but simply to show why Dr.

Kaye did what he did in this particular matter . . . . I think

it would be the exception to the hearsay rule, that it does

state why Dr. Kaye is doing what he did . . . .”

Wright argues the trial court erred because Dr. Kaye’s

testimony would be inadmissible hearsay offered to prove the

truth of the statements made and justify his conformance to the

standard of care by confirming he was away from the bladder and

was justified in not performing a cystoscopy. We agree with

Wright.

In Williams v. Morris, 200 Va. 413, 105 S.E.2d 829 (1958),

we stated:

27
 Heresay evidence has been defined as evidence
which derives its value, not solely from the
credit to be given the witness on the stand, but
in part from the veracity and competency of some
other person. It is primarily testimony which
consists in a narration by one person of matters
told him by another. A clear example of hearsay
evidence is where a witness testifies to the
declaration of another for the purpose of proving
the facts asserted by the declarant.

Id. at 416-17, 105 S.E.2d at 832 (citations omitted).

As a narration of a conversation between them, Dr. Kaye’s

testimony of statements purportedly made to him by Dr. Gil-

Montero is classic hearsay. See Stevenson v. Commonwealth, 218

Va. 462, 465, 237 S.E.2d 779, 781 (1977). The issue is whether

any of the numerous exceptions to the hearsay rule would

nonetheless permit Dr. Gil-Montero’s statements into evidence

through Dr. Kaye. We find no such exception.

While Dr. Gil-Montero’s statements would be some evidence

of Dr. Kaye’s state of mind (why he proceeded in Wright’s

procedure as he did), that would be true, to some degree, of

almost any hearsay statement offered by its proponent. In its

obvious and central thrust, Dr. Gil-Montero’s statements would

go directly to the ultimate issue of the standard of care: that

Dr. Kaye was not too close to the bladder when he fired the

staples and the standard of care did not require inspection of

the bladder by cystoscopy before closing Wright’s surgery.

Allowing Dr. Kaye to relay Dr. Gil-Montero’s statements would be

28
tantamount to admitting unqualified expert testimony.8

Additionally, it is clear Dr. Kaye’s statements were offered to

prove the truth of the facts stated therein and are inadmissible

hearsay.

The trial court erred in denying Wright’s motion in limine

as to Dr. Gil-Montero’s statements.

VIII. CONCLUSION

For the reasons heretofore given, we hold the trial court

erred in striking Wright’s experts and granting summary judgment

to Dr. Kaye. We also hold the trial court erred in failing to

8
In CSX Transportation v. Casale, 247 Va. 180, 441 S.E.2d 212
(1994), we stated:
A medical expert's recital of the confirming
opinion of an absent physician is inadmissible
hearsay. McMunn v. Tatum, 237 Va. 558, 566, 379
S.E.2d 908, 912 (1989). Although Code § 8.01-
401.1 authorizes admission into evidence of an
expert's opinion that may be based in whole or in
part upon inadmissible hearsay, "the statute does
not authorize the admission of any hearsay
opinion on which the expert's opinion was based."
Todd v. Williams, 242 Va. 178, 181, 409 S.E.2d
450, 452 (1991). This is because "admission of
hearsay expert opinion without the testing
safeguard of cross-examination is fraught with
overwhelming unfairness to the opposing party. No
litigant in our judicial system is required to
contend with the opinions of absent 'experts'
whose qualifications have not been established to
the satisfaction of the court, whose demeanor
cannot be observed by the trier of fact, and
whose pronouncements are immune from cross-
examination." McMunn, 237 Va. at 566, 379 S.E.2d
at 912.
Id. at 182-83, 441 S.E.2d at 214.

29
grant Wright’s motions in limine to exclude the discussions

about risk of surgery and to bar Dr. Kaye’s testimony about Dr.

Gil-Montero’s statements.

We will affirm the trial court’s judgment which denied

Wright’s motion in limine to bar Dr. Krebs’ testimony because of

his relationship with Dr. Welgoss. We will also affirm the

trial court’s judgment denying Wright’s motion in limine to

exclude evidence as to Dr. Kaye’s prior performance of an

urachal cyst excision.

Accordingly, the judgment of the trial court will be

affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.

Affirmed in part,
reversed in part,
and remanded.

30