Sami v. Varn

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.

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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.

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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

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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.

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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

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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.

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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.

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