Henning v. Thomas

RUSSELL, J.,

dissenting in part.

I agree that the judgment should be reversed because of the trial court’s limitation of the defendant’s right to cross-examine Dr. Culley on the issue of bias, but I do not think Dr. Culley established sufficient familiarity with the applicable statewide standard of care to qualify as an expert witness in the first place.

*192Dr. Culley had practiced orthopedic surgery in Missouri and had taught medicine in Missouri and in Tennessee. He had discontinued both practice and teaching at the time of trial, and was then employed by a life insurance company in Connecticut. He could demonstrate no study, training, or experience which would have established the slightest familiarity with the standard of care prevailing in Virginia.

The majority opinion concludes that the trial court acted within its discretion in qualifying Dr. Culley because Dr. Wilson, a Virginia practitioner who did not testify that the Virginia standard was violated in this case, had opined in a deposition that certain techniques and diagnostic practices were “basically the same in Virginia as elsewhere.” Dr. Culley expressed a similar opinion. In my view, those attempts to lay a foundation fell far short of establishing Dr. Culley’s familiarity with the statewide standard required by Code § 8.01-581.20.

In Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976), we were asked to abandon the long-established “similar local community” standard and to adopt a national standard for the qualification of expert witnesses in medical malpractice cases. Although we noted the strong arguments made for the adoption of a national standard, we declined to do so by judicial fiat. We held that such a fundamental change in the law should be made, if at all, by the General Assembly. 216 Va. at 652-53, 222 S.E.2d at 789.

The legislature responded in 1979, as the majority notes, by the adoption of Code § 8.01-581.20 after thorough study and debate. The legislative decision was not to adopt a national standard, but rather to substitute a statewide standard unless the trial court found from the evidence that a local community standard was more appropriate in a particular case. The General Assembly has since had many opportunities to adopt a national standard, but has continually declined to do so.

Here, the majority opinion has approved an exercise of judicial discretion which effectively substitutes a national standard in lieu of the scheme adopted by the General Assembly. I do not think judicial discretion extends so far. The majority would permit trial courts, in their discretion, to qualify so-called experts who have no familiarity whatever with the standards of professional care prevailing in Virginia, provided a Virginia practitioner can be found who will express the opinion that the Virginia standard is the same as standards prevailing nationwide.

*193A major weakness in the majority’s reasoning is the dubious quality of such an opinion. A Virginia practitioner can hardly be expected to have familiarity with the standards prevailing throughout each of the other 49 states, including both their urban and rural areas. I doubt that such an omniscient physician exists. His opinion of nationwide uniformity has no more value than that of the imported “expert” who, although having no knowledge of the standards prevailing in Virginia, is nevertheless fully prepared to testify that they were violated. Another weakness in the majority’s conclusion is that the General Assembly has directly rejected the same result.

Since the majority opinion leaves the qualification of expert witnesses having no familiarity with Virginia standards within the discretion of our circuit courts, it is to be hoped that they will continue to exercise the degree of judicial restraint we exercised in Bly v. Rhoads, and leave the adoption of a nationwide standard to the General Assembly.