PRESENT: All the Justices
INEZ JACKSON, ADMINISTRATRIX OF THE
ESTATE OF JAMES M. JACKSON, DECEASED
v. RECORD NO. 080502 OPINION BY JUSTICE CYNTHIA D. KINSER
January 16, 2009
FAIQA AFTAB QURESHI, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Karen J. Burrell, Judge
In this wrongful death action, the sole issue is whether a
plaintiff’s proffered medical expert witness satisfied the
criteria of Code § 8.01-581.20 to testify on the standard of
care in the defendant’s specialty. Because we find that the
record clearly demonstrates the witness met the statutory
“knowledge” requirement and “active clinical practice”
requirement, see Wright v. Kaye, 267 Va. 510, 518, 593 S.E.2d
307, 311 (2004), and was therefore qualified to testify as an
expert with regard to the medical procedure at issue, we will
reverse the circuit court’s judgment excluding the medical
expert witness’ testimony.
BACKGROUND
The only issue before us concerns the question whether an
expert witness was qualified to testify. Therefore, “we need
recite only those facts necessary to our resolution of the
appeal.” Dagner v. Anderson, 274 Va. 678, 681, 651 S.E.2d 640,
641 (2007). Accord Budd v. Punyanitya, 273 Va. 583, 587, 643
S.E.2d 180, 181 (2007); Molchon v. Tyler, 262 Va. 175, 180, 546
S.E.2d 691, 695 (2001).
Inez Jackson, (Jackson), administratrix of the estate of
James M. Jackson, deceased, (infant Jackson), filed a wrongful
death action against Faiqa Aftab Qureshi, M.D., and her
employer, Children’s Specialty Group, PLLC. Jackson alleged,
among other things, that Dr. Qureshi, while acting within the
scope of her employment, negligently discharged infant Jackson
and failed to admit him to inpatient hospital care when the
infant presented at an emergency room with signs of respiratory
distress and/or pertussis. 1 She claimed that, as a direct and
proximate result of Dr. Qureshi’s failure to comply with the
applicable standard of care, infant Jackson ultimately died from
pertussis and other complications caused by the infection.
Finally, Jackson asserted that, during all times relevant to the
claim, Dr. Qureshi “was a physician licensed to practice
medicine in the Commonwealth . . . and was engaged in the
practice of pediatric emergency medicine and/or pediatric
medicine.”
During discovery, Jackson identified John F. Modlin, a
physician licensed in New Hampshire and board certified in
pediatrics and pediatric infectious diseases, as her only
1
Pertussis, also known as whooping cough, is a highly
contagious disease caused by the bacterium Bordetella pertussis.
2
standard of care expert. Prior to trial, the defendants moved
the circuit court to exclude Dr. Modlin’s testimony as an expert
witness on the standard of care. The parties agreed that the
circuit court could decide the motion by using Dr. Modlin’s
deposition testimony and voir dire testimony elicited at a
previous trial. 2 Jackson also admitted into evidence a letter
from the Commonwealth of Virginia Department of Health
Professions, certifying “Dr. Modlin’s credentials meet the
educational and examination requirements for licensure in
Virginia.” Jackson further agreed that if the defendants
prevailed on the motion to exclude Dr. Modlin’s testimony, she
would not name a replacement standard of care expert and “the
case would come to a close.”
Turning now to the testimony considered by the circuit
court, Dr. Modlin, during his voir dire direct examination,
first testified about his qualifications. Dr. Modlin has been a
professor of pediatric medicine at Dartmouth Medical School for
the past 15 years. He has served as chairman of the pediatric
department for approximately seven years and also has worked as
a physician with the infectious disease group at the Dartmouth
2
Prior to filing the instant action, Jackson had filed an
identical wrongful death action but had taken a voluntary
nonsuit during argument on the defendants’ motion to preclude
Dr. Modlin from testifying. At the trial on the nonsuited
action, testimony was elicited from Dr. Modlin during the voir
dire to qualify him as an expert witness.
3
Hitchcock Medical Center. Dr. Modlin explained that, as
chairman of the department of pediatrics and as a medical
director of the Children’s Hospital at Dartmouth Hitchcock
Medical Center, he has responsibility for both clinical and
academic missions.
With regard to his clinical responsibilities, Dr. Modlin
testified that he spends about 25 to 30 percent of his time in
direct patient care, divided between two areas, “one as an
infectious disease physician,” and the other “in a general
pediatric clinical position.” He explained that, in the latter
setting, he has direct responsibility for patient care of
children admitted to “a general pediatric ward,” and that many
of those patients are infectious disease patients. Dr. Modlin
testified that the pediatric ward admits from five to thirteen
patients per day and that he has “direct responsibility for all
of those patients.” According to Dr. Modlin, a child may be
admitted to the pediatric ward through several different routes:
They may be admitted directly from the outside, where
they do not pass through the emergency room. There
will be other patients who will first come to the
emergency room, and because they are sick require
admission and will be directly admitted to the ward.
We at Dartmouth have what we call an urgent care
clinic, where many of the pediatric patients when they
first arrive at the emergency room are so called
triaged by the nurses. They are evaluated, and if
they don’t have a medical condition that puts them at
very high risk where their life is clearly being
threatened right then and there, most of the patients
4
who are sick are actually sent up to our urgent care
clinic.
So, quite a bit of the care that I provide in the
acute care setting actually is done in the urgent care
clinic. Again, it’s mostly in the setting of
supervising pediatric residents and medical students
who are maybe providing direct care, but . . . I would
have ultimate responsibility for the outcome for those
patients.
Dr. Modlin testified at length concerning his knowledge of
the infectious disease, pertussis. He responded affirmatively
when asked if he is “familiar with the standard of care for a
reasonably prudent pediatrician physician in the Commonwealth of
Virginia as to the care and treatment of those who present with
respiratory problems and/or pertussis.”
During cross-examination, Dr. Modlin admitted he is not
board certified in pediatric emergency medicine and does not
present himself as an expert in “pediatric emergency department
medicine.” He further admitted that he has not worked in an
emergency room department since the early 1980s, and that the
hospital in which he currently works does not have a separate
emergency department for children. Dr. Modlin, however,
testified that he “would feel quite confident to deal with most
any infectious disease that presented to an emergency department
and . . . that [he] could render an . . . expert opinion,
regarding any infectious disease that might show up in the
[emergency department].”
5
Dr. Modlin admitted that, during the past five years, he
has not been called upon to diagnose a single patient with
pertussis in an emergency room setting. However, Dr. Modlin
pointed out that he has treated such patients in the urgent care
clinic and that this setting is “very similar to an emergency
room setting.”
Dr. Modlin’s deposition, which was taken approximately a
month before the first trial, provided much of the same
information. When asked about the clinical activities that
occupy 25 to 30 percent of his time, Dr. Modlin responded, “I
see patients principally in the inpatient setting. I see
infectious disease consultations, both adult and pediatric
infectious disease consultations; and I also maintain a limited
pediatric infectious disease outpatient practice.” Dr. Modlin
testified that he does see patients in the emergency department
on a consultation basis, but admitted that he “actually [does
not] work as an emergency room physician.” He further admitted
that he is “not trained or board certified in emergency
medicine.” Dr. Modlin, however, testified, “I believe that all
pediatricians who care for acutely ill children, regardless of
whether they are [emergency department] physicians or pediatric
[infectious disease] physicians or general pediatricians should
appreciate how pertussis can present in an infant.”
6
Also during his deposition, Dr. Modlin made it clear that
his “only concern regarding the standard of care [is that infant
Jackson] should have been admitted to the hospital.” When asked
whether his “sole opinion” is that “the standard of care under
the circumstances presented [was] such that the infant . . .
should have been admitted to the hospital,” Dr. Modlin answered,
“Correct.”
After considering the evidence and oral arguments, the
circuit court granted the defendants’ motion. The circuit
court, in light of the stipulation reached between the parties,
then ordered the case dismissed with prejudice. Jackson appeals
from the circuit court’s judgment.
DISCUSSION
The sole issue on appeal is whether the circuit court
abused its discretion by holding that Dr. Modlin was not
qualified to testify as an expert on the standard of care. “The
question whether a witness is qualified to testify as an expert
is largely within the sound discretion of the trial court.”
Lloyd v. Kime, 275 Va. 98, 108, 654 S.E.2d 563, 569 (2008)
(internal quotations omitted); accord Perdieu v. Blackstone
Family Practice Ctr., 264 Va. 408, 418, 568 S.E.2d 703, 709
(2002). “ ‘A decision to exclude a proffered expert opinion
will be reversed on appeal only when it appears clearly that the
witness was qualified.’ ” Perdieu, 264 Va. at 418, 568 S.E.2d
7
at 709 (quoting Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741,
744 (1979)); see also Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d
172, 174 (2000) (“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”).
In a medical malpractice action, the qualification of a
witness as an expert on the standard of care is governed by Code
§ 8.01-581.20, which states in relevant part:
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. . . . An expert witness who is
familiar with the statewide standard of care shall not
have his testimony excluded on the ground that he does
not practice in this Commonwealth. 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 the action.
Under this statute, a physician is presumed to know the
statewide standard of care in the physician’s specialty or field
of medicine either if the physician is licensed to practice in
Virginia or “[i]f the physician is licensed out-of-state, but
8
meets the educational and examination requirements of the
statute.” Lloyd, 275 Va. at 109, 654 S.E.2d at 569. The
statutory presumption applied to Dr. Modlin. Although he was
not licensed to practice in Virginia, Dr. Modlin’s credentials
satisfied the educational and examination requirements for
licensure in the Commonwealth, according to the letter from the
Commonwealth of Virginia Department of Health Professions.
Thus, it was presumed that Dr. Modlin knew the statewide
standard of care in his specialties of pediatrics and pediatric
infectious diseases.
Even with the benefit of the presumption, “to qualify as an
expert witness on the standard of care, the witness must have
expert knowledge on the standard of care in the defendant’s
specialty and an ‘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 the action.’ ” Id. (quoting Code § 8.01-581.20). We
have previously referred to these two requirements as the
“knowledge” requirement and the “active clinical practice”
requirement. Wright, 267 Va. at 518, 593 S.E.2d at 311.
With regard to the “knowledge” requirement, Jackson, as the
proponent of the expert witness, had the initial burden to
“show, among other things, that the ‘specialty or field of
medicine in which [Dr. Modlin] is qualified and certified’ is
9
the same as [Dr. Qureshi’s] specialty or a related field of
medicine.” Lloyd, 275 Va. at 109, 654 S.E.2d at 569-70 (quoting
Code § 8.01-581.20). In other words, Jackson had to demonstrate
that Dr. Modlin’s “area of qualification and certification” in
pediatrics and pediatric infectious diseases “had certain
overlapping medical practices and similar standards of care
with” Dr. Qureshi’s “area of qualification and certification” in
pediatric emergency medicine. Id. at 110, 654 S.E.2d at 570.
This requirement can be shown by evidence that the standard of
care, as it relates to the alleged negligent act or treatment,
is the same for the proffered expert’s specialty as it is for
the defendant doctor’s specialty. Sami, 260 Va. at 283-84, 535
S.E.2d at 174; see also Griffett v. Ryan, 247 Va. 465, 472-73,
443 S.E.2d 149, 153-54 (1994) (holding that an internist was
qualified to testify as an expert because the evidence
demonstrated that the standard of care applicable to the
internist did not vary from the standard of care in the
defendant’s specialty, gastroenterology, a subspecialty of
internal medicine).
In Sami, this Court held that a trial court abused its
discretion by holding that an expert witness whose specialty was
in obstetrics-gynecology did not demonstrate knowledge of the
standard of care applicable to the defendant’s specialty in
10
emergency medicine. 260 Va. at 284, 535 S.E.2d at 174. We
explained:
[The expert’s] 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.
Id. at 284, 535 S.E.2d at 174; see also Wright, 267 Va. at 522,
593 S.E.2d at 313 (whether an expert has knowledge of the
standard of care for a defendant’s specialty must be determined
by reference to the relevant medical procedure at issue in a
particular case).
Applying these principles, we conclude that Dr. Modlin
satisfied the “knowledge” requirement of Code § 8.01-581.20.
It is undisputed that the only relevant medical procedure at
issue is Dr. Qureshi’s decision not to admit infant Jackson to
inpatient hospital care when the infant presented to the
emergency room showing signs of respiratory distress and/or
pertussis. Dr. Modlin testified in his deposition, “all
pediatricians who care for acutely ill children, regardless of
whether they are [emergency department] physicians or pediatric
11
[infectious disease] physicians or general pediatricians should
appreciate how pertussis can present in an infant.” 3
That uncontradicted testimony demonstrated that the
standard of care, as it pertains to the medical procedure at
issue, is the same for a physician with specialties in
pediatrics and pediatric infectious diseases as it is for a
physician with a specialty in pediatric emergency medicine.
Thus, we hold that Dr. Modlin met the “knowledge” requirement of
Code § 8.01-581.20. Lloyd, 275 Va. at 109-10, 654 S.E.2d at
569-70; Sami, 260 Va. at 284, 535 S.E.2d at 174.
We now move to the question whether Dr. Modlin satisfied
the “active clinical practice” requirement. To qualify as an
expert, Dr. Modlin needed an “ ‘active clinical practice in
either [Dr. Qureshi’s] specialty or a related field of medicine
within one year of the date of the alleged act or omission
forming the basis of [the] action.’ ” Sami, 260 Va. at 283, 535
S.E.2d at 174 (quoting Code § 8.01-581.20).
3
Although Dr. Modlin never stated this opinion to a
reasonable degree of medical probability, the defendants did not
contemporaneously, or at any other time, object to this
testimony. Therefore, the testimony was properly before the
circuit court to consider and may be relied upon by this Court
on appeal. See Bitar v. Rahman, 272 Va. 130, 141, 630 S.E.2d
319, 325 (2006) (medical expert testimony admitted without a
timely objection was properly considered by the jury
notwithstanding the fact it was not stated within a reasonable
degree of medical probability).
12
In Sami, this Court addressed the application of the phrase
“related field of medicine” contained in Code § 8.01-581.20.
There, we stated that “[t]he 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.”
260 Va. at 285, 535 S.E.2d at 175. We therefore concluded 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.” Id.
It should be clear from our discussion concerning the
“knowledge” requirement that the standard of care for the
medical procedure at issue was the same with regard to Dr.
Modlin’s specialties and Dr. Qureshi’s specialty. Thus, the
only remaining question is whether Dr. Modlin actually performed
the procedure at issue in his clinical practice within one year
of the date of the alleged negligent act or omission.
With regard to the only relevant medical procedure at issue
in this case, i.e., whether infant Jackson should have been
admitted to inpatient hospital care when he presented at the
emergency room showing signs of respiratory distress and/or
13
pertussis, the record is clear that Dr. Modlin directly treated
patients who presented with respiratory distress or pertussis
within one year of the date of the alleged omission in this
case. Although Dr. Modlin admitted that he had not treated a
patient presenting with pertussis in an emergency room during
the relevant time frame, he testified that he had treated such
patients in the urgent care clinic. According to Dr. Modlin’s
uncontradicted testimony, the urgent care clinic where he saw
those patients and an emergency room are “very similar” clinical
settings. Thus, we conclude that Dr. Modlin met the “active
clinical practice” requirement with regard to the relevant
medical procedure at issue in this case. Lloyd, 275 Va. at 109-
10, 654 S.E.2d at 569-70; Sami, 260 Va. at 284, 535 S.E.2d at
174.
The defendants, however, argue that the 25 to 30 percent of
Dr. Modlin’s time spent in direct patient care was insufficient
to establish that he had an “active” clinical practice with
regard to the relevant medical procedure at issue. We find this
argument unpersuasive. The provisions of Code § 8.01-581.20 do
not set a minimum threshold amount of time a physician must
spend in clinical practice to establish that such physician
maintains an “active clinical practice,” and this Court is not
free to impose one. The statute states simply that the
proffered expert must have an “active clinical practice” in the
14
defendant’s specialty or a related field of medicine “within one
year” of the alleged negligent act or omission. Code § 8.01-
581.20.
The record clearly demonstrates that, within the relevant
one-year time frame, Dr. Modlin was engaged in an ongoing
clinical practice and treated patients presenting with pertussis
on more than a sporadic basis. In contrast, we held in Hinkley
v. Koehler, 269 Va. 82, 606 S.E.2d 803 (2005), that a teaching
and consulting physician did not satisfy the “active clinical
practice” requirement because he did not provide any direct
patient care. Id. at 90, 606 S.E.2d at 807. Certainly, there
may be instances when the expert’s clinical practice with regard
to the medical procedure at issue is so de minimis that the
witness would not meet the “active clinical practice”
requirement. However, in the case at bar, Dr. Modlin’s direct
involvement in the treatment and care of patients presenting
with respiratory distress or pertussis was not de minimis. In
this case, the purpose of the “active clinical practice”
requirement, i.e., to prevent testimony by a physician who has
not recently engaged in the actual performance of the medical
procedure at issue, was clearly satisfied. Thus, we hold that
Dr. Modlin met the “active clinical practice” requirement of
Code § 8.01-581.20.
15
CONCLUSION
Because it appears clearly from the record that Dr. Modlin
met the “knowledge” requirement and the “active clinical
practice” requirement of Code § 8.01-581.20, we conclude that
the circuit court abused its discretion in holding otherwise.
See Perdieu, 264 Va. at 418, 568 S.E.2d at 709. Thus, we will
reverse the judgment of the circuit court and remand for further
proceedings.
Reversed and remanded.
16