Present: All the Justices
ELIZABETH K. HINKLEY
v. Record No. 040389 OPINION BY JUSTICE CYNTHIA D. KINSER
January 14, 2005
ANTHONY J. KOEHLER, M.D., ET AL.
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M. D. Turk, Judge
Elizabeth K. Hinkley filed this medical malpractice
action, naming as defendants Anthony J. Koehler, M.D.;
Sanam Emami Campbell, M.D.; David J. Roberts, M.D.
(collectively, “the defendant doctors”); and their employer
Southwest Virginia Physicians for Women, Inc., d/b/a
Obstetrics & Gynecology of Radford (collectively, “the
defendants”).1 A jury returned a verdict for the
defendants.
We awarded Hinkley this appeal on the question whether
the circuit court erred in concluding that one of the
defendants’ witnesses was qualified under Code § 8.01-
581.20(A) to give expert testimony with regard to the
standard of care. Because the expert witness had not had
an active clinical practice in the defendant doctors’
specialty or a related field within one year of the alleged
1
Hinkley also named as defendants Carilion New River
Valley Medical Center along with several of its employees.
Before trial, Hinkley took a nonsuit as to these
defendants.
negligence, we will reverse the judgment of the circuit
court.
During her 28th week of a twin pregnancy, Hinkley
sought medical attention due to decreased fetal movements
and contractions. Over the course of two days, August 23
and 24, 2001, the defendant doctors attended to Hinkley and
her twin fetuses, primarily by monitoring the twin fetuses’
heart rates, conducting ultrasound examinations, and
reducing Hinkley’s contractions. On the second day, an
ultrasound examination revealed that one of the twins had
died in utero. The ultrasound test, along with a Doppler
study, indicated that the other twin had “no major
anomalies.” However, later that day, the other twin died
in utero, as confirmed by a second ultrasound examination.
Hinkley then underwent a cesarean section to deliver the
dead fetuses. The preliminary post-operative diagnosis
regarding the cause of death was twin-to-twin transfusion
syndrome.2
Prior to trial, Hinkley filed a motion in limine to
exclude testimony from Charles Greenhouse, M.D., one of the
expert witnesses designated by the defendant doctors to
testify with regard to the standard of care. Hinkley
2
No autopsies were performed on the twin fetuses;
therefore, the cause of death was disputed at trial.
2
argued that Dr. Greenhouse did not meet the requirements of
Code § 8.01-581.20(A) because he had not practiced in the
field of obstetrics within one year of the date of the
alleged negligence and had not delivered a baby since 1998.
The circuit court took the motion under advisement until
Dr. Greenhouse testified at trial.
During the trial, the circuit court heard testimony,
outside the presence of the jury, from Dr. Greenhouse about
his qualifications. Dr. Greenhouse testified that he had
practiced medicine in the field of obstetrics and
gynecology for 33 years but that he “gave up delivering,
hands-on delivering obstetrics [in] November of 1998.”
Since 1998, Dr. Greenhouse had “been extremely active in
teaching . . . residents . . . , medical students and
interns [in] obstetrics and gynecology" as an associate
clinical professor at George Washington University Medical
School, and in performing consultative work with those
individuals, as well as with the partners in his six-person
medical practice. Dr. Greenhouse consulted primarily with
regard to high-risk pregnancy cases and associated
problems. Although Dr. Greenhouse testified that he had
consulted on two patients “which [he] actually went in and
spoke to,” he acknowledged that he was not the “primary
care physician for those patients” and had not been for any
3
obstetrical patient since November 1998. Dr. Greenhouse
explained that a primary care physician means “the doctor
who is responsible for that patient.” In Dr. Greenhouse’s
words, “I don’t deliver the patient; however, I am very
active in the consulting part.” Finally, Dr. Greenhouse
testified that he recently had been asked to be on the
editorial board review of a journal for obstetrics and
gynecology and to do “peer review work for the Medical
Gynecological Society in obstetrical cases.”
Based on this testimony, the circuit court concluded,
over Hinkley’s objection, that Dr. Greenhouse was qualified
and accordingly admitted him as an expert in the field of
obstetrics on both the standard of care and causation. The
court reasoned that Dr. Greenhouse’s consultative work on a
regular basis with physicians who practice obstetrics on a
daily basis qualified Dr. Greenhouse under the requirements
of Code § 8.01-581.20(A). The court also viewed the
provisions of that statute as requiring that “one with
certain qualifications shall be considered an expert [but
that the statute] doesn’t say that these are the only
qualifications that [a physician has] to have in order to
testify as an expert.” According to the court, “the
statute doesn’t say these are the only individuals” who
qualify.
4
When the jury returned to the courtroom, Dr.
Greenhouse testified similarly with regard to his 33 years
of practice in the field of obstetrics and gynecology, and
his teaching and consulting work in the field of
obstetrics. He further stated that he has a full
gynecology practice, seeing “patients from all categories
gynecologically.” He again admitted that he had not been
the primary care physician for any pregnant mother or
delivered a baby since November 1998.
In order to qualify as an expert on the standard of
care in a medical malpractice action, a witness must
satisfy the statutory criteria set forth in Code § 8.01-
581.20(A). Perdieu v. Blackstone Family Practice Ctr.,
Inc., 264 Va. 408, 419, 568 S.E.2d 703, 709 (2002); see
also Sami v. Varn, 260 Va. 280, 283, 535 S.E.2d 172, 174
(2000) (“[t]he qualification of a witness as an expert is
governed by Code § 8.01-581.20”). In relevant part, that
statute states:
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.
5
Code § 8.01-581.20(A). We previously characterized these
requisites as the “knowledge requirement” and the “active
clinical practice requirement.” Wright v. Kaye, 267 Va.
510, 518, 593 S.E.2d 307, 311 (2004). Contrary to the
circuit court’s comments when ruling on the motion in
limine, both of the requirements must be satisfied before
an expert can testify as to the standard of care. Id.
In this case, the active clinical practice requirement
is at issue, i.e., whether Dr. Greenhouse’s teaching and
consulting work within one year of the date of the alleged
negligence forming the basis of the action constituted an
“active clinical practice” within the intendment of Code
§ 8.01-581.20(A). “[W]hether a proffered witness meets the
active clinical practice requirement is . . . determined by
reference to the relevant medical procedure.” Id. at 522,
593 S.E.2d at 313. For example, in Wright, the relevant
procedure was “laparoscopic surgery in the female pelvic
area near the bladder involving a surgical stapler.” Id.
We found that the plaintiff’s experts in that case had an
active clinical practice with regard to the procedure at
issue within the one-year statutory window. Id. However,
the crux of that case, with regard to the active clinical
practice requirement, focused on and rejected the defendant
doctor’s argument that an active clinical practice in the
6
defendant’s specialty meant that “an expert witness must
have performed the same medical procedure with the same
pathology in all respects as gave rise to the alleged act
of malpractice at issue in order to have practiced in the
defendant’s specialty.” Id. at 523, 593 S.E.2d at 314.
In contrast, the expert witness in Fairfax Hosp. Sys.,
Inc. v. Curtis, 249 Va. 531, 457 S.E.2d 66 (1995), did not
qualify under the provisions of Code § 8.01-581.20(A) even
though up until approximately two years prior to the
alleged negligence forming the basis of that action he had
worked as a professor of pediatrics and as medical director
of a hospital’s pediatric intensive care unit. Id. at 536-
37, 457 S.E.2d at 70. The expert’s work at the time of the
alleged negligence, as the director of a service that
transported sick and injured patients by helicopter, could
not be deemed an active clinical practice. Id. at 537, 457
S.E.2d at 70.
Likewise in Perdieu, we held that two expert witnesses
did not have an active clinical practice during the
relevant statutory time period. 264 Va. at 419-20, 568
S.E.2d at 709-10. The alleged negligence forming the basis
of that action concerned the care of nursing home patients,
including the diagnosis of fractures. Id. at 420, 568
S.E.2d at 710. One of the experts had previously worked as
7
the head of a hospital’s emergency medicine department and
had operated a “walk-in clinic for primary care.” Id. at
413, 568 S.E.2d at 706. However, during the relevant time
period, the expert had worked one day per week in a clinic
and one day per week at a county’s health department. He
had not treated fractures or cared for nursing home
patients. Id. at 420, 568 S.E.2d at 710. The other
expert’s prior experience had been in “the field of general
practice,” which had included the treatment of nursing home
patients and fractures. Id. at 415, 568 S.E.2d at 707.
However, since his retirement approximately eight years
before the alleged negligence at issue in that case, the
expert’s only work in the medical field had been as the
“medical officer” for a senior citizen softball league.
Id. We concluded that neither expert had “ ‘recently
engaged in the actual performance of the procedures at
issue’ ” in that case.3 Id. at 420, 568 S.E.2d at 710
(quoting Sami, 260 Va. at 285, 535 S.E.2d at 175).
Although these cases are instructive, they do not
provide a definitive answer in this case. This is so
because we have never, in those cases or otherwise, defined
3
We also found a third expert witness was not
qualified because her only experience with nursing home
patients was in an acute-care setting such as a hospital.
Perdieu, 264 Va. at 419-20, 568 S.E.2d at 709-10.
8
the phrase “active clinical practice” nor have we addressed
whether an expert who only taught and consulted in a
defendant’s specialty or a related field of medicine during
the statutory one-year window nevertheless had an “active
clinical practice” within the contemplation of Code § 8.01-
581.20(A). But, we have stated that we determine whether a
proffered expert witness satisfies the active clinical
practice requirement by referring to the “relevant medical
procedure” at issue in a case. Wright, 267 Va. at 522, 593
S.E.2d at 313. We also have explained that the phrase
“ ‘actual performance of the procedures at issue’ must be
read in the context of the actions by which the defendant
is alleged to have deviated from the standard of care.”
Id. at 523, 593 S.E.2d at 314. The question whether a
proffered expert witness met the active clinical practice
requirement must be analyzed in the same manner. Thus, in
this case, we determine whether Dr. Greenhouse, as a
teacher and consultant in the field of obstetrics,
fulfilled the active clinical practice requirement by
examining “the context of the actions by which the
defendant[s] [are] alleged to have deviated from the
standard of care.” Id.
The alleged negligence forming the basis of this
action arose out of the direct patient care provided to
9
Hinkley during her pregnancy; and the management,
treatment, and delivery decisions that were made when she
sought medical attention because of decreased fetal
movements and contractions. Hinkley alleged in the motion
for judgment that the defendant doctors were negligent by
failing to provide proper medical treatment, primarily
testing; and by failing to intervene surgically to save the
life of the remaining twin after one had died in utero.
Her expert witnesses testified that the defendant doctors
breached the standard of care by failing to perform certain
tests to determine, not just whether the twins were alive,
but also whether they were in distress. They further
opined that the standard of care required that a
recommendation be made to the parents to proceed with
delivery especially after one of the twins had died in
utero.
However, within the one-year statutory time period,
Dr. Greenhouse did not directly care for, provide treatment
or management to, or make delivery decisions for any
pregnancy. In other words, he had not, as a teacher and
consultant in the field of obstetrics, provided direct
patient care for any pregnancy since November 1998. Yet,
this type of direct patient care is “the context of the
actions by which the defendant[s] [are] alleged to have
10
deviated from the standard of care.” Wright, 267 Va. at
523, 593 S.E.2d at 314. Thus, we conclude that Dr.
Greenhouse did not satisfy the active clinical practice
requirement.
The defendants acknowledge on brief that “the only
issue was whether the defendant physicians met the
applicable standard of care in their evaluation,
management, and treatment of . . . Hinkley’s evolving
calamity.” They argue that, since this case is not about a
specific procedure that the defendant doctors physically
performed or the technique of delivering babies, Dr.
Greenhouse was qualified under Code § 8.01-581.20(A)
because he was actively engaged in the management of
problems associated with pregnancies. The defendants argue
that the only thing Dr. Greenhouse no longer did was
personally to deliver babies. We agree that neither a
specific procedure nor the physical process of delivering a
baby is at issue here, but Dr. Greenhouse did not evaluate,
manage, or treat problems in pregnancies in the context of
direct patient care as did the defendant doctors. Nor are
we persuaded otherwise by Dr. Greenhouse’s testimony that
he actually talked to two patients for whom he was acting
as a consultant. Moreover, his testimony in that regard
11
did not indicate whether that particular consultation
occurred within the statutory time period.
As we have said on many occasions, ascertaining
whether a proffered witness is qualified to testify as an
expert is a determination lying within the sound discretion
of the trial court. Wright, 267 Va. at 520, 593 S.E.2d at
312; Perdieu, 264 Va. at 418, 568 S.E.2d at 709; Noll v.
Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979);
Swersky v. Higgins, 194 Va. 983, 985, 76 S.E.2d 200, 202
(1953). “A trial court will not be reversed for allowing a
witness to testify as an expert unless it appears clearly
that he was not qualified in the field in which he gives
evidence.” Swersky, 194 Va. at 985, 76 S.E.2d at 202.
There is not, as suggested by the defendants, a lower
standard of appellate review when a trial court excludes
the testimony of a proffered expert witness as compared to
when the court admits the testimony. “ ‘A trial court’s
exercise of its discretion in determining whether to admit
or exclude evidence will not be overturned on appeal absent
evidence that the trial court abused that discretion.’ ”
Wright, 267 Va. at 517, 593 S.E.2d at 310 (emphasis added)
(quoting May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690,
692 (2002)).
12
For the reasons stated, we conclude that the circuit
court abused its discretion in this case by permitting Dr.
Greenhouse to testify as to the standard of care. In the
context of the alleged negligence at issue, Dr.
Greenhouse’s work as a teacher and consultant did not
satisfy the active clinical practice requirement set forth
in Code 8.01-581.20(A).4 One of the purposes of that
requirement is to prevent testimony by individuals who do
not provide healthcare services in the same context in
which it is alleged that a defendant deviated from the
standard of care. Today’s decision is in accord with that
purpose.
Finally, we reject the defendants’ argument that any
error by the circuit court in allowing Dr. Greenhouse to
testify was harmless. The defendants assert that Dr.
Greenhouse testified about not only the standard of care
but also causation, that Hinkley has not articulated any
reason why Dr. Greenhouse was not qualified to testify as
to the issue of causation, and that the “jury’s verdict was
far more likely decided on the issue” of causation. This
last assertion is purely speculative; neither the
4
However, we find no merit in Hinkley’s argument that
Dr. Greenhouse did not satisfy the requirements of Code
§ 8.01-581.20(A) merely because he personally had never had
an obstetrical patient with twin-to-twin transfusion
syndrome.
13
defendants nor this Court can ascertain on what issue the
jury returned its verdict in favor of the defendants. See
Schlimmer v. Poverty Hunt Club, 268 Va. 74, 80, 597 S.E.2d
43, 46 (2004) (finding error was not harmless because we
could not determine whether the jury returned a verdict for
the defendant due to lack of primary negligence or due to
plaintiff’s contributory negligence).
Furthermore, the error in allowing Dr. Greenhouse to
testify with regard to the standard of care “is presumed to
be prejudicial unless it plainly appears that it could not
have affected the result.” Spence v. Miller, 197 Va. 477,
482, 90 S.E.2d 131, 135 (1955); accord Clohessy v. Weiler,
250 Va. 249, 254, 462 S.E.2d 94, 97 (1995). In this case,
it does not plainly appear from the record that the error
could not have affected the jury’s verdict. This is so
despite the fact that the defendants had another expert
witness, Wade A. Neiman, M.D., who testified as to both
standard of care and proximate causation.
However, Dr. Greenhouse’s testimony was in many
respects more detailed than Dr. Neiman’s testimony. The
jury also could have accorded more weight to Dr.
Greenhouse’s testimony overall because of his 33 years of
experience in the practice of medicine. See Black v.
Bladergroen, 258 Va. 438, 446, 521 S.E.2d 168, 172 (1999)
14
(considering qualifications of expert witness whose
testimony was excluded in deciding issue of harmless
error).
For these reasons, we will reverse the judgment of the
circuit court and remand this case for a new trial.5
Reversed and remanded.
5
In light of our decision, we do not decide whether
Dr. Greenhouse was qualified to testify solely on the issue
of causation. We simply point out that the requirements of
Code § 8.01-581.20(A) speak only to qualifications needed
for an expert to testify about the standard of care.
15