Present: All the Justices
BELINDA H. LAWSON
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 960473 November 1, 1996
ROBERT W. ELKINS, M.D.
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
In this medical negligence appeal, we consider whether the
trial court abused its discretion by refusing to permit a
physician to testify as an expert witness.
Plaintiff, Belinda H. Lawson, filed a motion for judgment
against Dr. Robert W. Elkins, an orthopaedic surgeon. Plaintiff,
who was experiencing pain in her back and leg, says that Dr.
Elkins told her that her pain was caused by a herniated disk and
that she was "an ideal candidate for a surgical disk excision."
Dr. Elkins recommended that he treat her with a procedure known
as chemonucleolysis. During this procedure, an enzyme is
injected into an intervertebral disk. The enzyme agent,
chymopapain, shrinks the disk, thereby relieving pressure on the
nerve and alleviating the pain. Dr. Elkins performed this
procedure on the plaintiff, who now asserts that she incurred
permanent bodily injury as a result of the procedure. The
defendant filed a grounds of defense denying any breach of duty
owed to the plaintiff.
The plaintiff sought a pre-trial ruling from the trial court
permitting her proposed expert witness, Dr. James R. Jackson, a
neurosurgeon, to testify that the defendant breached the standard
of care owed to her in finding that she was an appropriate
candidate for the chemonucleolysis treatment. The trial court
ruled that:
"Dr. James Jackson may testify as a treating physician
based upon his examinations and treatment of the
plaintiff but [he] may not testify [on] the standard of
care applicable to the defendant in this case insofar
as the chemonucleolysis procedure is concerned, the
suitability of the plaintiff as a candidate for
chemonucleolysis, the effect on the plaintiff of the
chemonucleolysis procedure, and whether . . . the
defendant deviated from any applicable standard of care
in the chemonucleolysis procedure performed on the
plaintiff in 1983."
At trial, the plaintiff renewed her motion to qualify Dr.
Jackson as an expert witness. The trial court denied her motion
and, subsequently, granted the defendant's motion to strike the
plaintiff's evidence because she had no expert testimony to
establish either the standard of care that the defendant owed to
her or any deviation therefrom. The plaintiff appeals from the
trial court's final order.
The plaintiff asserts that the trial court abused its
discretion by refusing to permit Dr. Jackson to testify as an
expert witness on the standard of care that the defendant owed to
her. Plaintiff says, "[s]ince the main issue is whether the
plaintiff was a candidate for chemonucleolysis, not whether the
defendant improperly performed the procedure, a neurosurgeon who
is familiar with the standard of care can render an opinion
thereon regardless whether he has actually performed the
procedure."
The defendant argues that the trial court did not abuse its
discretion in refusing to permit Dr. Jackson to testify as an
expert witness on the subject whether the defendant breached the
standard of care by recommending the plaintiff as a candidate for
the chemonucleolysis procedure. We agree with the defendant.
Code § 8.01-581.20 states in relevant 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."
In applying this statute, the trial court must make a threshold
determination whether the proposed expert has demonstrated expert
knowledge of the standards of the defendant's specialty. Whether
a witness demonstrates expert knowledge of the appropriate
standards of the defendant's specialty is a question largely
within the sound discretion of the trial court. See Grubb v.
Hocker, 229 Va. 172, 176, 326 S.E.2d 698, 700 (1985). And,
"[a] decision to exclude a proffered expert opinion
will be reversed on appeal only when it appears clearly
that the witness was qualified. . . . And the
expressed belief of a witness that he is an expert does
not ipso facto require his qualification. . . . The
facts must show that he possesses sufficient knowledge,
skill or experience to make him competent to testify as
an expert on the subject matter of the inquiry."
Id. (quoting Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744
(1979)).
Here, the record clearly establishes that the trial court
did not abuse its discretion by refusing to permit Dr. Jackson to
qualify as an expert witness on the defendant's specialty,
orthopaedic surgery as it involves the procedure of
chemonucleolysis. Dr. Jackson has never performed a
chemonucleolysis procedure on a patient; nor has he observed an
actual procedure performed on a patient. Indeed, the record
reveals that Dr. Jackson has a very limited knowledge of
chemonucleolysis. Even though Dr. Jackson, who is board
certified in neurological surgery, had received a certificate for
participating in an eight-hour seminar on chemonucleolysis, this
limited instruction is not sufficient to permit us to conclude
that "it appears clearly" from the record that he is qualified to
render opinions on the subject whether the plaintiff was a proper
candidate for the chemonucleolysis procedure. As the trial court
observed:
"[Dr. Jackson] never performed this procedure; he has
nothing in his qualifications as to whether the
defendant in this case deviated from any kind of care,
and, in fact, has stated that he doesn't contest that."
We also note that contrary to Lawson's assertions, the trial
court did not rule that generally, a neurosurgeon may not render
an expert opinion on the standard of care imposed upon an
orthopaedic surgeon. Rather, the trial court, exercising its
discretion, held that Dr. Jackson was not qualified as an expert
witness to render an opinion on the standard of care imposed upon
an orthopaedic surgeon who performs a chemonucleolysis procedure.
Accordingly, we will affirm the judgment of the trial court.
Affirmed.