Present: All the Justices
VIDA SAMI
v. Record No. 992345 OPINION BY JUSTICE ELIZABETH B. LACY
September 15, 2000
MILES VARN, M.D. AND
JULIAN ORENSTEIN, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
In this appeal, we consider whether the trial court erred
in holding that an obstetrician-gynecologist was not qualified
to give expert testimony on the standard of care for a pelvic
examination performed by an emergency room physician.
Vida Sami went to the emergency room of Fairfax Hospital
on January 26, 1994. She told the hospital personnel she was
pregnant and that she was in pain and experiencing vaginal
bleeding. Three separate pelvic examinations were performed
on Sami: one by a medical resident; another by an emergency
room physician, Dr. Miles Varn; and a third by the resident
obstetrician-gynecologist on call at the hospital, Dr. Barbara
A. Dill. Their conclusions were that Sami had undergone a
spontaneous abortion or miscarriage and, according to Dr.
Dill, the "miscarriage had completed itself." Sami was
discharged from the hospital and given instructions for a
follow-up appointment within four weeks.
Sami returned to the Fairfax Hospital emergency room in
April of that year, and again in June, complaining of pain.
Dr. Julian Orenstein, an emergency room physician, performed a
pelvic examination and discharged Sami, instructing her to
take a non-prescription pain medication.
In late June 1994, Sami went to the office of Dr. Herbert
Roberts, an obstetrician-gynecologist, complaining of
continuing abdominal pain. Dr. Roberts performed an abdominal
examination, administered a sonogram, and found a "pelvic
mass." When Dr. Roberts operated on Sami to remove the mass,
he discovered that the mass was a second uterus containing a
twelve to fifteen-week-old dead fetus.
Sami filed a motion for judgment against a number of
physicians at Fairfax Hospital, including Drs. Varn and
Orenstein, alleging negligence and "infliction of emotional
distress." 1 Sami filed a second motion for judgment against
Fairfax Hospital on the same theories, claiming that the
Hospital breached its duty to properly supervise its
employees. The motions for judgment were consolidated.
During a jury trial, Sami sought to qualify Dr. Roberts
as an expert witness on the standard of care. Following voir
dire of Dr. Roberts, the trial court concluded that Dr.
Roberts was qualified as an expert on the standard of care
applicable to the actions of Dr. Dill, an obstetrician-
1
The other defendants in this action were dismissed by
the trial court and are not involved in this appeal.
2
gynecologist, but that he was not qualified to testify to the
standard of care applicable to Drs. Varn and Orenstein,
emergency room physicians. The trial court held that Dr.
Roberts did not "demonstrate[] expert knowledge of the
standards of defendant[s'] specialty," and that he did not
"have an active clinical practice in ER" or a related field.
Without Dr. Roberts' testimony, Sami did not have an expert to
establish the standard of care and breach thereof by Drs. Varn
and Orenstein, and the trial court sustained a motion by those
defendants to dismiss Sami's claims against them.
Following further testimony, the jury returned a verdict
in favor of the hospital. Sami filed this appeal asserting
that the trial court erred in holding that Dr. Roberts was not
qualified to offer expert testimony on the standard of care
applicable to the pelvic examinations performed by Drs. Varn
and Orenstein.
The qualification of a witness as an expert is governed
by Code § 8.01-581.20, which states, in relevant part:
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 that action.
3
Drs. Varn and Orenstein argue that the trial court properly
declined to qualify Dr. Roberts as an expert on the standard
of care applicable to them on two grounds: (1) because Dr.
Roberts did not demonstrate expert knowledge of their
specialty, emergency room medicine; and (2) because he had not
had a clinical practice in their specialty or a related field
within one year preceding the date of the alleged malpractice.
We disagree with both of these arguments.
Whether a witness demonstrates expert knowledge of the
appropriate standards of the defendant's specialty is a
question largely within the sound discretion of the trial
court. Lawson v. Elkins, 252 Va. 352, 354, 477 S.E.2d 510,
511 (1996)(citing Grubb v. Hocker, 229 Va. 172, 176, 326
S.E.2d 698, 700 (1985)). 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).
In this case, Dr. Roberts testified that he was familiar
with the standards of care applicable to pelvic examinations
and that these standards were the same for an emergency room
physician and an obstetrician-gynecologist. Dr. Dill, a
4
defense witness, testified that she knew of no "variation
among the medical profession on performance of a pelvic
examination."
Nothing in the record in this case contradicts the
testimony of Drs. Roberts and Dill, that the standards
applicable to the performance of a pelvic examination by an
obstetrician-gynecologist and an emergency room physician are
the same. Dr. Roberts' lack of knowledge regarding certain
procedures of emergency medicine might disqualify him from
rendering expert testimony as to those procedures, but that
lack of knowledge does not preclude him from giving expert
testimony on procedures which are common to both emergency
medicine and the field of obstetrics-gynecology and are
performed according to the same standard of care. See
Griffett v. Ryan, 247 Va. 465, 472-73, 443 S.E.2d 149, 153-54
(1994).
In light of the record in this case, the trial court was
not entitled to ignore the uncontradicted testimony that the
standard of care for the performance of pelvic examinations
was common to both specialties. Cheatham v. Gregory, 227 Va.
1, 4, 313 S.E.2d 368, 370 (1984). In qualifying Dr. Roberts
to testify as an expert regarding Dr. Dill's performance of a
pelvic examination, the trial court acknowledged Dr. Roberts'
knowledge of the relevant standard of care for that procedure.
5
Therefore, we conclude that the trial court abused its
discretion in holding that Dr. Roberts did not demonstrate
sufficient knowledge of the standard of care at issue in this
case to qualify as an expert witness on that standard.
Drs. Varn and Orenstein also argue that the trial court's
ruling was correct because Dr. Roberts did not have an active
clinical practice in their specialty or a field related to
their specialty, as required by § 8.01-581.20. Dr. Roberts
does not have an active clinical practice in emergency
medicine, but he does have an active clinical practice in
obstetrics-gynecology. Sami argues that obstetrics-gynecology
and emergency medicine should be considered related fields of
medicine for the purposes of § 8.01-581.20 in the instant case
because the procedure at issue is performed in both
specialties and the standard for performance is identical. We
agree with Sami.
We have not previously considered the application of the
phrase "related field of medicine" in circumstances similar to
those presented in this case. 2 The phrase contemplates a
clinical practice which differs from that of the defendant,
2
In Fairfax Hospital System, Inc. v. Curtis, 249 Va. 531,
537, 457 S.E.2d 66, 70 (1995), the proffered expert had
previously practiced as an attending physician in the
defendant's specialty, but at the time of the alleged
malpractice was the "director of a helicopter transport
6
but the statute provides no guidance for determining whether a
clinical practice is "related." 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.
In this case, as recited above, the procedure at issue, a
pelvic examination, is governed by the same standard of care
in both the emergency room and obstetric-gynecology practice
settings. Nothing in this record indicates that the emergency
room setting required the procedure to be performed in a
manner different than it would be performed under other
circumstances. Dr. Roberts had an active clinical practice
which included the performance of pelvic examinations within
one year of the alleged malpractice. Thus, we conclude that
service," an activity which did not qualify as any type of
clinical practice.
7
Dr. Roberts had an active clinical practice in a related field
of medicine for purposes of § 8.01-581.20.
Because Dr. Roberts satisfied both requirements of
§ 8.01-581.20, it was an abuse of discretion by the trial
court to rule that Dr. Roberts was unqualified to give expert
testimony on the standard of care for the performance of a
pelvic examination by the emergency room physicians in this
case. Accordingly, we will reverse the judgment of the trial
court and remand the case for further proceedings consistent
with this opinion.
Reversed and remanded.
8