Black v. Bladergroen

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

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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

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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

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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

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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.

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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.

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 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

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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

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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.

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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:

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 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

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case remanded for a new trial in which the doctor’s

testimony shall be allowed.

Reversed and remanded.

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