PRESENT: All the Justices
HORACE E. PERDIEU, AS ADMINISTRATOR
OF THE ESTATE OF LUCILLE P. OVERTON,
DECEASED
OPINION BY
v. Record No. 012008 JUSTICE DONALD W. LEMONS
September 13, 2002
BLACKSTONE FAMILY PRACTICE CENTER,
INC., ET AL.
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
James A. Luke, Judge
In this appeal, we consider whether the trial court erred
in refusing to qualify three of the plaintiff’s proposed expert
witnesses. We further consider whether the trial court erred in
granting the defendants’ motions to strike at the conclusion of
the plaintiff’s case-in-chief when the plaintiff did not present
essential expert testimony.
I. Facts and Proceedings Below
According to well-settled principles of appellate review,
when the evidence has been struck at the conclusion of the
plaintiff’s case-in-chief, we will recite the facts in the light
most favorable to the plaintiff. Bryan v. Burt, 254 Va. 28, 30-
31, 486 S.E.2d 536, 537 (1997).
On January 4, 1995, Lucille P. Overton (“Overton”) was
admitted as a patient to Heritage Hall Health Care (“Heritage
Hall”), a nursing home facility in Blackstone, Virginia. Upon
her admission, she entered into an agreement entitled “Heritage
Hall Admission Agreement” (the “contract”), in which HCMF
Corporation (“HCMF”), t/a Heritage Hall Health Care, agreed to
provide Overton with such care as her condition reasonably
required. Overton had a history of “mental confusion, dementia
and disorientation.” Charles I. Rosenbaum, M.D. (“Dr.
Rosenbaum”) and Blackstone Family Practice Center, Inc. (“BFPC”)
were listed on Overton’s chart as her medical care providers.
The Heritage Hall staff performed an evaluation of Overton’s
condition and needs upon her arrival to the facility, which
indicated that Overton was “ambulatory only with assistance, was
confused, and only sometimes oriented to place and time.” As a
result of the evaluation, the Heritage Hall staff categorized
Overton as subject to a high risk for falls.
On January 20, 1995, Overton fell from her bed onto the
floor of her room. A member of the staff at Heritage Hall
contacted BFPC and Dr. Rosenbaum to inform them of Overton’s
fall. Overton was then examined by Dr. Josephine R. Fowler
(“Dr. Fowler”), a resident physician in training at the Medical
College of Virginia/Virginia Commonwealth University, who was
conducting a family practice rotation under the supervision of
BFPC. Dr. Fowler did not diagnose any injuries resulting from
Overton’s fall.
The next day, January 21, 1995, Overton fell again, this
time in the dining room at Heritage Hall. Again, Dr. Fowler
2
examined Overton and did not diagnose any injury resulting from
the fall.
After the second fall, Overton’s physical and psychological
condition “severely deteriorated.” Overton’s son, Horace E.
Perdieu (“Perdieu”), visited her on January 30 or 31, 1995,
observed her condition, and requested medical attention for his
mother from the Heritage Hall staff. The staff notified BFPC,
and as a result Overton was examined by Dr. George P. Damewood
(“Dr. Damewood”), another resident physician associated with
BFPC. During a physical examination, Dr. Damewood determined
that Overton appeared to have sustained a hip fracture and he
ordered x-rays of Overton’s hip. Dr. Rosenbaum viewed the x-
rays and confirmed the hip fracture and Dr. Barry W. Burkhardt
(“Dr. Burkhardt”) subsequently performed surgery on Overton to
replace her fractured hip with a prosthesis.
On April 30, 1999, Overton filed a four-count motion for
judgment against BFPC, Dr. Rosenbaum, and HCMF, seeking one
million dollars in “compensatory and exemplary damages.” In
Count I, Overton alleged that HCMF breached its contract with
her when it failed to provide her with reasonable care, failed
to direct the development of a suitable care plan related to her
personal health needs, and failed to protect her with adequate
safety measures.
3
In Count II, Overton alleged that BFPC and Dr. Rosenbaum
committed medical malpractice because Dr. Rosenbaum failed to
personally examine Overton and allowed her to be examined by Dr.
Fowler, a “completely unsupervised” resident physician. Overton
further alleged that BFPC and Dr. Rosenbaum failed to properly
“examine, diagnose, and treat” her, in violation of the
applicable standard of reasonable care, and failed to implement
adequate safety measures to prevent her from falling.
In Count III, Overton alleged that all three defendants
engaged in “negligent and careless acts and omissions” when they
failed to “properly attend, restrain, assist, examine, diagnose
and treat” her. She further alleged that the three defendants
“negligently failed to supervise their employees.”
Finally, in Count IV, Overton alleged that HCMF violated
Code § 32.1-138, which enumerates certain requirements for
nursing homes in Virginia, and that HCMF, Dr. Rosenbaum, and
BFPC violated 42 U.S.C. § 1395i-3, which provides requirements
for “skilled nursing facilities.”
Overton died of unrelated causes on October 16, 1999, and
Perdieu qualified as the administrator of her estate. On March
7, 2000, Perdieu, as Administrator of the Estate of Lucille P.
Overton, was substituted as the plaintiff in the case.
Prior to trial, Perdieu designated eight experts, including
the three at issue in this appeal: Dr. John O. Martin (“Dr.
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Martin”), Dr. Reinald Leidelmeyer (“Dr. Leidelmeyer”), and
Phylis Corrigan, R.N. (“Corrigan”). Dr. Martin proposed to
testify that the lack of a suitable care plan and safety
measures in place to prevent Overton’s falls violated the
appropriate standard of care. He would have opined that this
failure directly and proximately caused Overton’s physical
injury and continued pain and suffering.
Dr. Leidelmeyer was designated to testify about the same
matters as Dr. Martin, and was further designated to testify
that Overton’s medical records, including the records of Dr.
Fowler’s examinations, were “not sufficiently detailed.” As a
result of Dr. Fowler’s “grossly inadequate records” and her
failure to report the falls, as required, Dr. Leidelmeyer would
have testified that it took approximately ten or more days to
diagnose Overton’s hip fracture. Dr. Leidelmeyer would also
have testified that Dr. Rosenbaum’s conduct, in failing to
consult with Dr. Fowler, “consitute[d] a serious aberration of
accepted standards and protocol of resident physician training
programs.”
Corrigan was designated to testify “as to the standard of
care which [Overton] should have received” from HCMF. Corrigan
would have opined that proper care, which was “reasonably
necessary to prevent the falls and resulting injury” sustained
by Overton, was not provided. Corrigan would further have
5
testified that a patient-specific care plan should have been
instituted immediately upon Overton’s admission to Heritage
Hall.
Dr. Rosenbaum and BFPC filed motions in limine to exclude
the testimony of Dr. Leidelmeyer and Dr. Martin. HCMF filed a
similar motion in limine to exclude the testimony of Dr. Martin
and Corrigan. On the day before trial, the court heard
arguments on the motions to exclude the various expert
witnesses. The court first considered the qualifications of Dr.
Leidelmeyer and viewed a videotape of his deposition. Dr.
Leidelmeyer testified that he had served as the head of the
emergency department of medicine at Fairfax Hospital in Fairfax,
Virginia, from approximately 1961 until 1982. While at Fairfax
Hospital, Dr. Leidelmeyer was in a “supervisory capacity over
all the physicians,” including interns and residents in
training. After leaving that position, he “opened a walk-in
clinic for primary care,” and operated the clinic for “[a]bout
ten years,” until approximately 1992. Dr. Leidelmeyer testified
that after leaving his employment with the “walk-in clinic,” he
worked approximately one day per week for a private family
practice clinic owned by two doctors who had previously worked
for him at Fairfax Hospital. He held this employment until
1998. Dr. Leidelmeyer testified that from 1990 until 2001, he
also worked approximately one day per week at the Fairfax County
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Health Department (“Health Department”), where he performed pre-
employment physicals and interpreted tuberculosis tests. He
testified that he did not diagnose or treat fractures, nor did
he treat nursing home patients, while working at the Health
Department.
BFPC and Dr. Rosenbaum argued that Dr. Leidelmeyer did not
satisfy the requirements of Code § 8.01-581.20 because his part-
time employment at the Health Department did not qualify as an
“active clinical practice,” as required by the statute. They
argued that Dr. Leidelmeyer “was not treating patients therefore
he was not actually a clinician at that point.” Furthermore,
BFPC and Dr. Rosenbaum maintained that Dr. Leidelmeyer did not
practice in the same specialty as Dr. Rosenbaum, who was a
family practice physician. They argued that Dr. Leidelmeyer was
not diagnosing and treating fractures, was not treating nursing
home patients, and was not supervising interns or residents
within a year of the alleged malpractice, which occurred in
1995. Accordingly, BFPC and Dr. Rosenbaum maintained that Dr.
Leidelmeyer could not qualify as an expert pursuant to Code
§ 8.01-581.20.
Perdieu argued that Dr. Leidelmeyer satisfied the
requirements of Code § 8.01-581.20. He emphasized Dr.
Leidelmeyer’s testimony “that he’s been engaged in the clinical
practice of primary care which treats all members of the
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family.” Perdieu argued that the statute did not address how
many work days each week were required to constitute a “clinical
practice,” and he maintained that Dr. Leidelmeyer’s employment
at the Health Department satisfied the statutory requirements.
The trial court ruled that Dr. Leidelmeyer could not
testify as an expert witness, observing:
[T]here’s a very great question as to whether
he has any clinical practice during the period
of time [required by Code § 8.01-581.20]. He
worked for this health department, he filled in
a day a week, he says, for a couple of doctors.
. . .
The [court is] of the opinion that he did
not have a clinical practice and I might add he
never had any, testifies to no experience
treating and diagnosing fractures. He must
have seen some in his practice, but I don’t
hear much from him about that. I can’t allow
his testimony. . . .
The trial court next considered Corrigan’s qualifications
and viewed a videotape of her deposition, wherein Corrigan
discussed her work experience. She testified that while working
in a hospital from 1991 to 1997, her “area of expertise was
dealing with primarily elderly, critical patients who came in
from either home or . . . from nursing homes . . . because of an
acute problem.” Corrigan further testified that she assisted
the hospital social worker in providing nursing homes with
information they would need to care for the patient after his or
her release from the hospital, and she prepared discharge
8
summaries for patients moving to nursing homes. All of
Corrigan’s nursing experience was “hospital based.”
HCMF argued that Corrigan did not qualify as an expert
witness pursuant to Code § 8.01-581.20, because her only
experience was in an acute-care setting and she had never worked
in a nursing home or long-term care facility. Accordingly, HCMF
maintained that Corrigan did not work in a field of medicine
“related” to the defendant’s field, as required by the statute.
HCMF further argued that Corrigan had never devised a care plan
in a long-term care facility, and she had never made decisions
regarding the use of restraints in a nursing home, which was one
of the issues to which she proposed to testify. Finally, HCMF
asserted that the standard of care in a nursing home is
different from the standard of care in a hospital. For these
reasons, HCMF maintained that Corrigan failed to qualify as an
expert witness pursuant to Code § 8.01-581.20.
Perdieu argued that Corrigan was qualified as an expert
witness based on her experience working with elderly patients as
a nurse and formulating care plans for them. He further argued
that Corrigan worked with nursing home patients while they were
in the hospital and he emphasized that her experience included
transferring patients to nursing homes with the necessary
documentation and care instructions.
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The trial court ruled that Corrigan was not qualified to
testify as an expert witness. The court explained: “I can’t see
that she has any experience in this specific field which is
caring for patients in a nursing home and I don’t think she’s
qualified to testify.”
Perdieu called Dr. Martin as a witness at trial. Dr.
Martin testified that he was a licensed physician in Virginia
from 1956 until 2000. He explained that since 1987, his work in
the medical field consisted of serving as the “medical officer”
for a senior citizen softball league. Dr. Martin testified that
during his years of practice, he worked in the field of general
practice and he “treated quite a few fractures”; furthermore, he
also treated patients in nursing homes. On cross-examination,
Dr. Martin testified that he retired from treating patients on a
“regular, full time basis” in 1987, and that he had not worked
in a nursing home since 1965.
Dr. Rosenbaum, BFPC, and HCMF argued that Dr. Martin did
not qualify as an expert witness because he had been retired
since 1987, he did not have an active clinical practice at the
relevant time period as required by Code § 8.01-581.20, and he
did not have knowledge of the standard of care in a nursing
10
home. 1 Perdieu maintained that Dr. Martin was qualified pursuant
to Code § 8.01-581.20, based on his “long-standing
qualifications in the general practice of medicine.”
The trial court refused to qualify Dr. Martin as an expert
witness. The court explained:
The question here is whether Dr. Martin can be
qualified as an expert in the defendant’s
specialty. Dr. Martin testifies to having been
a [general practice physician] and still is
without an active clinical practice. . . .
****
The [c]ourt cannot qualify Dr. Martin . . . to
offer an opinion as to the standard of care
involved in this case, the standard of care for
treatment of geriatric patients in a nursing
home for he’s never done it except perhaps a
year back in the ‘60s and that won’t do in this
case. I cannot let him testify.
Perdieu presented the expert testimony of Dr. Burkhardt,
the surgeon who performed Overton’s bipolar hip prosthesis. Dr.
Burkhardt testified by audio-visual deposition that while
performing Overton’s surgery, he discovered dark fluid in the
capsule around her hip joint. According to Dr. Burkhardt, the
presence of dark fluid “was a clear indication that it was an
older fracture.” He estimated that the fracture was 10 to 14
days old.
1
Dr. Martin testified that his definition of the standard
of care was “to do the best care that’s available to give that
patient.”
11
At the conclusion of Perdieu’s case-in-chief, Dr.
Rosenbaum, BFPC, and HCMF each moved to strike the evidence.
Dr. Rosenbaum and BFPC argued that in a medical malpractice
case, the plaintiff is required to use expert testimony to
establish the standard of care, a breach of the standard of
care, and causation. They maintained that Perdieu failed to
present expert testimony on these three required elements.
HCMF joined Dr. Rosenbaum’s and BFPC’s motion to strike the
evidence and further argued that in order to establish proximate
cause, pursuant to Bryan v. Burt, 254 Va. 28, 486 S.E.2d 536
(1997), Perdieu was required to state “what should have been
done.” HCMF maintained that Perdieu failed to present any
evidence as to what measures should have been taken to prevent
Overton’s falls. Furthermore, HCMF noted the absence of
evidence that any deviation from the standard of care caused
Overton’s falls, and the lack of evidence that Overton’s falls
caused her fracture.
Perdieu argued that jurors are able to make judgments on
matters within their common knowledge without the need for
expert testimony. He asserted that the lack of safety
precautions in place, Overton’s two separate falls, the lack of
supervision over Dr. Fowler, the failure to diagnose the
fracture, and Overton’s deteriorating health following the falls
were all facts and circumstances within the common knowledge and
12
understanding of jurors. Accordingly, he maintained that expert
testimony was not required and that the defendants “just missed
[the fracture], and it’s up to the jury to determine whether or
not [the defendants] should have exercised the standard of care
necessary to detect [the fracture].”
The trial court granted both motions to strike, and
explained:
I don’t think there is any question in
this case but that Mrs. Overton’s hip was
broken while she was a patient at Heritage
Hall. I don’t think there’s any question . . .
that her condition deteriorated some and I
quite understand the upset to anyone closely
associated with her. I also don’t think there
is any question [that] it is necessary in this
case for the plaintiff to be able to show a
breach of the standard of care and I think that
can only be done through expert testimony,
which as I’ve said, was not able to be
produced.
. . . The [c]ourt has no choice in this
matter but to grant both motions to strike.
On June 8, 2001, the trial court entered its final judgment
order from which Perdieu appeals.
On appeal, Perdieu argues that the trial court erred in
refusing to qualify Dr. Leidelmeyer, Dr. Martin, and Corrigan as
expert witnesses. Perdieu maintains that the trial court
misinterpreted Code § 8.01-581.20 because the statute is not
exclusionary, but is only intended to give guidance as to when
an expert shall be qualified to testify. He asserts that
experts can qualify even if they do not specifically meet all of
13
the criteria enumerated in the statute. Nevertheless, Perdieu
maintains that the three excluded experts were qualified to
testify, even pursuant to the trial court’s interpretation of
the statute. Perdieu further argues that the trial court erred
in striking the evidence at the conclusion of his case-in-chief.
He maintains that the negligence at issue in the case was “so
blatant” that the determination of a violation of the standard
of care was within the common knowledge of the jury.
Accordingly, he asserts that expert testimony was not required.
Dr. Rosenbaum, BFPC, and HCMF argue that the trial court
properly interpreted the requirements of Code § 8.01-581.20 to
determine that Dr. Leidelmeyer, Dr. Martin, and Corrigan were
not qualified to testify as experts pursuant to the statute.
They further argue that expert testimony was required in this
case to establish the standard of care, a breach, and causation.
Because Perdieu failed to present expert testimony on each of
the required elements, they maintain that the trial court
properly granted their motions to strike Perdieu’s evidence at
the conclusion of his case-in-chief.
II. Standard of Review
The question whether a witness is qualified to testify as
an expert is “largely within the sound discretion of the trial
court.” Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744
(1979) (citing Swersky v. Higgins, 194 Va. 983, 985, 76 S.E.2d
14
200, 202 (1953)). In the context of a medical malpractice
action, this determination must be made with reference to Code
§ 8.01-581.20. “A decision to exclude a proffered expert
opinion will be reversed on appeal only when it appears clearly
that the witness was qualified.” Noll, 219 Va. at 800, 250
S.E.2d at 744, (citing Landis v. Commonwealth, 218 Va. 797, 800,
241 S.E.2d 749, 751 (1978)).
When a defendant challenges the sufficiency of a
plaintiff’s evidence by a motion to strike, “the trial court
should resolve any reasonable doubt as to the sufficiency of the
evidence in plaintiff’s favor and should grant the motion only
when ‘it is conclusively apparent that plaintiff has proven no
cause of action against defendant.’ ” Williams v. Vaughan, 214
Va. 307, 309, 199 S.E.2d 515, 517 (1973) (quoting Leath v.
Richmond, F. & P. R.R., 162 Va. 705, 710, 174 S.E. 678, 680
(1934)).
III. Analysis
Perdieu first argues that the trial court misinterpreted
Code § 8.01-581.20 when it refused to qualify three of his
proposed expert witnesses. Perdieu maintains that the word
“shall” included in the statute is not exclusionary; instead, he
argues that the statute is meant to provide guidance and general
requirements to the trial court, which, if met, will generally
qualify an expert to testify. He asserts that proposed experts
15
are not required to satisfy the statutory criteria in order to
qualify as expert witnesses. However, we have previously held
that the requirements of Code § 8.01-581.20 are mandatory. See
Fairfax Hosp. Sys., Inc. v. Curtis, 249 Va. 531, 536, 457 S.E.2d
66, 70 (1995) (holding that a trial court properly excluded a
proposed expert when “he failed to maintain an active clinical
practice in [the relevant] field of medicine or a related field
within one year of the date of the alleged medical malpractice
as required by Code § 8.01-581.20”).
Perdieu next argues that his three proposed expert
witnesses were qualified to testify pursuant to Code § 8.01-
581.20. Code § 8.01-581.20(A) provides, in pertinent part:
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.
The trial court stated its reason for excluding each of
Perdieu’s three proposed experts. The court excluded Dr.
Leidelmeyer because he did not have an active clinical practice
within a year of the alleged malpractice. The court excluded
Corrigan because she did not have experience in the relevant
field of nursing home care. Finally, the court excluded Dr.
16
Martin because he did not have an active clinical practice
during the relevant time period, and because he had not treated
nursing home patients for over 30 years.
We have held that the purpose of the requirements in Code
§ 8.01-581.20 is “to prevent testimony by an individual who has
not recently engaged in the actual performance of the procedures
at issue in a case.” Sami v. Varn, 260 Va. 280, 285, 535 S.E.2d
172, 175 (2000). In light of the record, the statute’s purpose
and the trial court’s stated reasons for refusing to qualify the
three proposed experts, we cannot say that the trial court
abused its discretion in disqualifying any of the three proposed
expert witnesses.
This medical malpractice action involved Dr. Rosenbaum’s
treatment of nursing home patients, which included the
diagnosing of fractures. During the relevant time period, Dr.
Leidelmeyer was working one day per week in a private clinic and
one day per week at the Health Department, where he did not
treat fractures or work with nursing home patients. Dr. Martin
retired in 1987, and during the relevant time period, he was
volunteering as the “medical officer” for a senior citizen
softball league. He did not testify to treating any fractures
or nursing home patients during the relevant time period.
Finally, although Corrigan demonstrated some experience working
with nursing home patients in hospitals, the entirety of her
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experience involved treatment in an acute-care setting. Neither
Dr. Leidelmeyer, Corrigan, nor Dr. Martin had “recently engaged
in the actual performance of the procedures at issue” in the
case. Id. Accordingly, the trial court did not abuse its
discretion in refusing to qualify these proposed experts.
Finally, Perdieu asserts that the trial court erred in
striking the evidence at the conclusion of his case-in-chief.
He maintains that the issues involved in the case were within
the common knowledge and understanding of the jury; therefore,
expert testimony was not required to establish the standard of
care, a breach, or causation.
In Raines v. Lutz, 231 Va. 110, 113, 341 S.E.2d 194, 196
(1986), we recognized that “expert testimony is ordinarily
necessary to establish the appropriate standard of care, to
establish a deviation from the standard, and to establish that
such a deviation was the proximate cause of the claimed
damages.” See also Rogers v. Marrow, 243 Va. 162, 167, 413
S.E.2d 344, 346 (1992). Perdieu argues that this case falls
within the exception recognized in Beverly Enterprises-Virginia,
Inc. v. Nichols, 247 Va. 264, 267, 441 S.E.2d 1, 3 (1994),
wherein we held that “[i]n certain rare instances . . . expert
testimony is unnecessary because the alleged act of negligence
clearly lies within the range of the jury’s common knowledge and
experience.”
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Beverly Enterprises involved a medical malpractice action
wherein we considered whether the plaintiff was required to
present expert testimony to prove the defendant’s negligence.
Blanche Nichols (“Nichols”) was a resident in a nursing home,
and the nursing home staff was aware that Nichols had previously
choked on food and was unable to eat without assistance. Id. at
266, 441 S.E.2d at 2. Nevertheless, an employee of the nursing
home delivered a tray of food to Nichols, who then attempted to
feed herself without assistance, choked on a piece of food, and
died of asphyxia. Id. at 266-67, 441 S.E.2d at 2. At trial, a
licensed practical nurse employed by the nursing home testified
that if someone left a tray of food in Nichols’ room, “that
‘would have been a mistake.’ ” Id. at 267, 441 S.E.2d at 2.
The plaintiff did not present expert testimony on the standard
of care and the jury found for the plaintiff. Id. at 265, 441
S.E.2d at 2.
Based on the unique facts of the case, we held that the
evidence was sufficient to support the jury’s finding of
negligence without the aid of expert testimony on the standard
of care. Beverly Enterprises, 247 Va. at 268, 441 S.E.2d at 3.
The defendant knew of Nichols’ physical condition and her prior
choking incidents, and despite this knowledge, the defendant’s
employee left a tray of food in front of Nichols and failed to
provide her with the required assistance. Id. We held: “[T]he
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question whether a reasonably prudent nursing home would permit
its employees to leave a tray of food with an unattended patient
who had a history of choking and who was unable to eat without
assistance is certainly within the common knowledge and
experience of a jury.” Id. at 269, 441 S.E.2d at 4.
The negligence alleged in the present case is of a
different nature than the negligence involved in Beverly
Enterprises. Perdieu advanced two separate theories of
negligence against Dr. Rosenbaum and BFPC. First, he alleged
that both were negligent when they failed to timely diagnose
Overton’s hip fracture. The issue whether a fracture was
diagnosed in a timely manner is a medical issue not within the
common knowledge and experience of a jury. Therefore, expert
testimony was required to establish the relevant standard of
care, a breach, and causation, and Perdieu failed to present
this required testimony. Although he presented expert testimony
through Dr. Burkhardt, who testified that Overton’s fracture was
sustained approximately 10 to 14 days prior to the diagnosis, no
evidence was presented that the fracture could have been
diagnosed earlier, or that a delay in diagnosis constituted a
breach of the standard of care. Furthermore, Perdieu presented
no expert testimony that any breach by Dr. Rosenbaum or BFPC
caused the claimed damages.
20
Perdieu also alleged that Dr. Rosenbaum and BFPC were
negligent in failing to properly supervise Dr. Fowler, a
resident physician. The issue whether a resident physician was
appropriately supervised is not within the common knowledge of a
jury; therefore, expert testimony was required to establish the
standard of care for supervising resident physicians and this
required expert testimony was not presented. Taking the
evidence in the light most favorable to Perdieu, as we must, we
hold that Perdieu failed to present required expert testimony on
the elements of the standard of care, breach, and causation,
with respect to either of the theories of negligence against Dr.
Rosenbaum and BFPC. Accordingly, the trial court did not err in
granting Dr. Rosenbaum’s and BFPC’s motion to strike the
evidence because it was “conclusively apparent” that Perdieu had
not proven a cause of action against them. Williams, 214 Va. at
309, 199 S.E.2d at 517.
Perdieu also advanced two theories of negligence against
HCMF. First, he alleged that HCMF was negligent in failing to
implement a care plan that would have prevented Overton’s falls.
Perdieu conceded during oral argument that he did not present
evidence of causation at trial. Specifically, he failed to
present evidence that any specific care plan would have
prevented Overton’s falls. Furthermore, the appropriate
standard of care required by a nursing home to prevent falls by
21
residents is not within the common knowledge or understanding of
a jury. Therefore, Perdieu was required to present expert
testimony to establish the relevant standard of care, a breach
by HCMF, and causation. He failed to meet this burden.
Perdieu further alleged that HCMF was negligent in failing
“to adhere to applicable standards of care . . . when [it]
failed to properly attend, restrain, assist, examine, diagnose
and treat” Overton, which “evince[d] a conscious disregard for
[her] well-being.” The appropriate standard of care for
treating nursing home residents is not within the common
knowledge of the jury; therefore, expert testimony was again
required to establish the standard of care. 2 Perdieu failed to
present expert testimony on the standard of care, a breach, or
causation. Again, viewing the evidence in the light most
favorable to Perdieu, we hold that the trial court did not err
in granting HCMF’s motion to strike the evidence because without
the required testimony, Perdieu had not proven a cause of action
against HCMF. Id.
In summary, the trial court did not abuse its discretion in
excluding the testimony of the proposed expert witnesses, and
the trial court did not err in striking the plaintiff’s
2
Furthermore, the record establishes that HCMF notified
BFPC after each of Overton’s falls, and on each occasion,
Overton was examined by a physician.
22
evidence. Accordingly, the judgment of the trial court will be
affirmed.
Affirmed.
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