Present: All the Justices
FRED S. BLACK
OPINION BY
v. Record No. 990065 CHIEF JUSTICE HARRY L. CARRICO
November 5, 1999
MARK R. BLADERGROEN, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
In this medical malpractice case, the sole question
for decision is whether the trial court erred in excluding
the testimony of a medical expert called by the plaintiff.
Finding the trial court’s action erroneous, we will
reverse.
In a motion for judgment filed October 17, 1996, the
plaintiff, Fred S. Black, sought to recover damages from
the defendants, Mark R. Bladergroen, M.D., Harold J.
Levinson, M.D., 1 Thomas P. Christopher, M.D., and Cardiac
Surgical Associates, Ltd. 2 In the motion for judgment, the
plaintiff alleged that the individual defendants, Drs.
Bladergroen, Levinson, and Christopher, were duly licensed
physicians who carried on a practice of cardiac surgery in
the employment of the corporate defendant, Cardiac Surgical
1
Upon Dr. Levinson’s death on November 3, 1997, his
executrix, Heidi S. Levinson, was substituted as a party
defendant in his place.
2
A number of other health care providers were also
named as defendants, but they were dismissed from the case
on motions for summary judgment or voluntary nonsuit and
are not parties to this appeal.
Associates, Ltd. The plaintiff alleged further that the
defendants’ negligence resulted in the amputation of his
right leg during a period of hospitalization in 1994.
A jury trial resulted in a verdict in favor of the
defendants, upon which the trial court entered judgment.
We awarded the plaintiff this appeal.
Prior to the events in question, the plaintiff had
suffered from heart disease for some time and had endured
two heart attacks. In October 1994, he experienced pain
and was admitted to Henrico Doctors Hospital, where he came
under the care of the defendant physicians. Following
cardiac bypass surgery, he developed complications. His
blood pressure dropped to dangerously low levels, and he
had problems with circulation in his right leg. When the
circulatory problems could not be corrected, the leg was
amputated. The plaintiff was diagnosed as having suffered
an anaphylactic reaction, which set off a chain of events
resulting in the loss of the leg.
During his case-in-chief, the plaintiff called W.
Dudley Johnson, M.D., a board-certified thoracic surgeon
from Milwaukee, Wisconsin, to testify as an expert on the
standard of care applicable to the defendants’ treatment of
the plaintiff. On voir dire examination, Dr. Johnson
stated that he attended the University of Illinois Medical
2
School, and, after finishing medical school and an
internship, entered surgical training, which consisted of
four years of general surgery and two years of heart
surgery. He was an associate clinical professor of surgery
at the medical school in Milwaukee, belonged to numerous
medical associations and societies, and had served on the
Wisconsin State Medical Licensing Board, in which capacity
he examined the credentials of “[a]ll kinds of physicians .
. . from all over the country and around the world” who
wanted to come to Wisconsin to practice medicine.
Dr. Johnson testified further that he “initially
developed and perfected the modern [coronary] bypass
operation [which] is now done throughout the world” and
that he was “the first person to put in two, three, four,
five, six bypasses” and the first to “describe secondary
operations and . . . third and fourth operations for
coronary disease.” He said that he personally had
performed between eight and nine thousand cardiac
operations, that he had operated in eight or nine foreign
countries, and that patients had come to him for surgery
from approximately thirty-five foreign countries and every
state in the union. He also said that “around 68” of his
patients had come from Virginia and that he had operated on
“47 or 48” of them. He had reviewed the records of his
3
Virginia patients and had communicated with their Virginia
surgeons and cardiologists regarding their care and
treatment.
When asked on direct examination whether he was
“familiar with the standard of care that would have been
adhered to by a reasonably prudent board-certified
cardiothoracic surgeon practicing in Virginia in 1994,” Dr.
Johnson said, “Yes.” When asked to tell the jury “how [he
had] that familiarity,” he stated: “Because all the
surgeons in the country take the same required exams.
There is one national board and one national certification
for heart surgeons. We don’t have a certification for
heart surgeons in Wisconsin. I don’t know of any state
that has separate certifications for any specialty.”
On redirect examination, Dr. Johnson testified he knew
what the Virginia standard of care is because of his
“background and experience and several years on [the
Wisconsin] medical board [reviewing credentials of all]
kind of physicians . . . from all over the country” and
because Virginia cardiothoracic surgeons “have to go
through the same training and take the same exams as every
other thoracic surgeon . . . in the country.” When asked
whether “there is any board certification of thoracic
4
surgeons applicable only to Virginia,” he answered, “No . .
. [t]hey took the same ones I took. National exams.”
In urging the trial court to exclude the testimony of
Dr. Johnson, the defendants offered no evidence of their
own. Instead, they relied solely on testimony he gave on
cross-examination. In response to defense counsel’s
questions, Dr. Johnson stated that he had never been
licensed to practice in Virginia, that he had never
performed surgery in Virginia, and that he had neither
demonstrated nor witnessed heart surgery performed in
Virginia. He stated that while he had discussed topics
relating to cardiac surgery in general with cardiac
surgeons at national or regional meetings, he was “not
certain whether any of those cardiac surgeons actually
practice in Virginia.” He admitted he could not name any
patient referred to him from Virginia with a history
similar to the plaintiff’s. And, finally, in what the
defendants term a “concession,” he said he thought he was
familiar with the Virginia standard of care for cardiac
surgeons because he believed “there is a national standard
of care applicable.”
On appeal, citing Bly v. Rhoads, 216 Va. 645, 222
S.E.2d 783 (1976), the defendants say this Court “has
firmly rejected the availability in Virginia of a recourse
5
in a medical malpractice action to a national standard of
care” on the ground it is for the General Assembly to
decide whether there should be a national standard. Id. at
652-53, 222 S.E.2d at 789; see also Poliquin v. Daniels,
254 Va. 51, 55, 486 S.E.2d 530, 533 (1997); Henning v.
Thomas, 235 Va. 181, 186, 366 S.E.2d 109, 112 (1988). In
Bly, we said a community standard of care applied in
Virginia. However, following Bly, the General Assembly
enacted Code § 8.01-581.20 and established a statewide
standard. 1979 Va. Acts ch. 325.
We have no intention of retreating from the position
we took in Bly that it is for the General Assembly to say
whether a national standard of care should apply in
Virginia and, hence, we have no inclination to adopt such a
standard ourselves. But nothing in Bly or any other
provision of law prohibits Virginia physicians from
practicing according to a national standard if one exists
for a particular specialty, even though neither the General
Assembly nor this Court has adopted such a standard.
Moreover, the law concerning medical experts has
changed since we decided Bly. In an amendment to Code §
8.01-581.20, the General Assembly created a presumption
that favors the admissibility of the testimony of medical
experts, including out-of-state experts. 1989 Va. Acts ch.
6
146. Thus, the question in this case is simply whether Dr.
Johnson’s statements on cross-examination, including his
“concession” in which he related the Virginia standard of
care to the standard elsewhere, were sufficient to overcome
the presumption provided by Code § 8.01-581.20.
The statutory language creating the presumption reads
as follows:
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. [Emphasis added.]
The defendants raise a preliminary question. They
argue that the plaintiff failed to establish Dr. Johnson’s
entitlement to the presumption provided by Code § 8.01-
581.20. However, Dr. Johnson was asked on his voir dire
examination whether he “possess[ed] the qualifications to
take the Virginia licensing to become licensed in
Virginia,” and he replied, “I believe I do, yes, sir.”
At the conclusion of the voir dire hearing, the trial
court refused to allow Dr. Johnson to testify. The
refusal, however, was not on the ground the doctor was not
entitled to the presumption but because he lacked
familiarity with the Virginia standard of care.
7
The next day, the plaintiff offered into evidence a
sworn letter from the Commonwealth’s Department of Health
Professions, Board of Medicine, stating that Dr. Johnson’s
credentials “meet the educational and examination
requirements for licensure in Virginia.” The trial court
refused to admit the letter on the ground it came too late,
but, when the plaintiff’s counsel asked the trial judge
whether he “accepted the [previous day’s] testimony of Dr.
Johnson that he met the educational and examination
requirements for licensure,” the judge stated: “I accept
that testimony.”
The defendants failed to make any objection in the
trial court to Dr. Johnson’s testimony concerning his
qualifications for licensure, to the trial judge’s
acceptance of that testimony, or to the sufficiency of the
evidence offered to invoke the presumption provided by Code
§ 8.01-581.20. Because the defendants raise the question
whether the plaintiff established Dr. Johnson’s entitlement
to the presumption for the first time on appeal, we will
not consider the question. Rule 5:25.
This brings us to the question whether the defendants
rebutted the presumption provided by Code § 8.01-581.20.
The trial court held that the defendants had overcome the
presumption by showing on cross-examination of Dr. Johnson
8
that he “has never talked to anyone in Virginia, he never
practiced in Virginia, [and] he has never read about what
the standard of care is in Virginia.” However, Dr. Johnson
stated that he had reviewed the records of his Virginia
patients and had communicated with their surgeons and
cardiologists about their treatment; the presumption
provided by Code § 8.01-581.20 is not predicated upon
previous practice in Virginia; and the evidence showed that
there was no “such thing as a Virginia textbook of
cardiothoracic surgery” for Dr. Johnson to read.
Furthermore, “there 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. at 186, 366 S.E.2d at 112. Dr.
Johnson’s extensive “background and experience” and his
familiarity with the manner of practice of “[a]ll kind of
physicians . . . from all over the country” offset any
effect the shortcomings perceived by the trial court may
have had upon the presumption. Hence, the matters listed
by the trial court were insufficient to overcome the
presumption.
Neither do we consider that Dr. Johnson’s
“concession,” in which he related the standard of care in
9
Virginia to the standard elsewhere, had any effect upon the
presumption. Once the plaintiff established that Dr.
Johnson met the educational and examination requirements
for licensure in Virginia and, therefore, was entitled to
the statutory presumption that he knew the Virginia
standard of care for cardiothoracic surgeons, the burden
shifted to the defendants to show Dr. Johnson was wrong in
his premise that the Virginia standard and the standard
elsewhere are the same. To carry this burden, the
defendants were required to show that the Virginia standard
differs from the standard elsewhere. See Griffett v. Ryan,
247 Va. 465, 473, 443 S.E.2d 149, 154 (1994). Yet, the
defendants produced not a scintilla of evidence on the
point, and the presumption remained intact.
We do not overlook the rule that “the question whether
an expert is qualified rests largely within the sound
discretion of the trial court,” Henning v. Thomas, 235 Va.
at 186, 366 S.E.2d at 112, or the maxim that “[a] decision
to exclude a proffered expert opinion will be reversed on
appeal only when it appears clearly that the witness was
qualified.” Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d
741, 744 (1979). But, in light of the defendants’ failure
to overcome the presumption provided by Code § 8.01-581.
20, it appears clearly that Dr. Johnson was qualified.
10
Accordingly, it was error for the trial court to exclude
his testimony.
The defendants argue, however, that the plaintiff “has
utterly failed to demonstrate reversible error.” Their
argument is two fold. First, they say that the plaintiff
“includes in his Brief of Appellant no discussion of the
testimony he hoped to elicit from Dr. Johnson” and, thus,
has given this Court “no basis to evaluate the prejudice he
now . . . avers he suffered when the trial court excluded
Dr. Johnson from testifying on the standard of care
applicable to the defendant doctors.”
Second, the defendants say that the plaintiff
“obtained the standard of care testimony he sought from Dr.
Johnson from another expert witness, Dr. [Alfred Joseph]
Martin, [Jr.],” and the plaintiff fails to explain “how the
exclusion of Dr. Johnson prejudiced him . . . in light of
his success in eliciting the same category of evidence
sufficient to get his case to the jury.”
We disagree with the defendants. In the following
passage from his Brief of Appellant, the plaintiff refutes
the first prong of the defendants’ argument by providing
this basis to evaluate the prejudice he avers he suffered
when the trial court excluded Dr. Johnson’s testimony:
11
The Court’s ruling excluding the testimony of Dr.
Johnson clearly prejudiced the plaintiff, Fred Black.
He made an appropriate proffer setting forth what Dr.
Johnson’s testimony against each of the defendants
would have been had he been permitted to give it. . .
. More importantly, Dr. Johnson was not only
qualified to testify as to the Virginia standard of
care, he is a world authority whose accomplishments
have been accorded international recognition and is
the father of the operative procedure out of which
this suit arose. His testimony would have carried
great weight with the jury. Counsel in opening
statements informed the jury of who Dr. Johnson was
and expressed great pride in the fact that he was
going to testify on the behalf of the plaintiff. When
the court refused to let him testify, Fred Black and
his counsel . . . lost credibility with the jury.
In the following passage from his reply brief, the
plaintiff answers the second prong of the defendants’
argument by providing this explanation of how the exclusion
of Dr. Johnson’s testimony prejudiced him despite his
ability to get his case to the jury with Dr. Martin’s
testimony:
Dr. Johnson is a world authority on
cardiovascular surgery, which is the same specialty as
the defendants in this case. . . . Dr. Martin . . . is
from a different specialty, vascular surgery, and
while he was qualified as being from a related field,
he could certainly by no stretch of the imagination be
claimed to be a world authority. While much of what
he testified to was similar to the proffer that was
made for Dr. Johnson, no argument can genuinely be
made that his testimony carried as much weight as Dr.
Johnson’s would have.
For the error in excluding Dr. Johnson’s testimony,
the judgment of the trial court will be reversed and the
12
case remanded for a new trial in which the doctor’s
testimony shall be allowed.
Reversed and remanded.
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