Henning v.Thomas
Supreme Court of Virginia,1988
235 Va.181,366 S.E.2d 109
[Plaintiff entered a hospital for removal of torn knee cartilage.The surgery,performed by defendant Henning assisted by Dr.Wilson,was uneventful.Dr.Hen-ning then went on vacation and turned plaintiff over to Dr.Pruner,who soon thereafter noted that plaintiff’s foot had “dropped.” The condition was diagnosed as a ruptured aneurysm behind the knee.Further surgery was required.Plaintiff suffered permanent paralysis of the leg below the knee.
At trial,plaintiff obtained a verdict and judgment for $150,000 against Drs.Henning and Pruner.In their appeal,defendants argued primarily that the trial court erred in (1) permitting testimony of an expert witness who was unfamiliar with the standard of care in Virginia and (2) limiting cross-examination of plaintiff’s expert that was intended to show bias.]
THOMAS,JUSTICE
In order to prove her claim of malpractice,Thomas called Dr.Thomas S.Culley as an expert witness to establish the standard of care in such cases in Virginia.His qualifications were challenged by the defendants.The trial court considered the evidence of his qualifications out of the jury’s presence.
Culley testified that he was Medical Director for Aetna Life and Casualty Insurance Company.He attended college in Mississippi and graduated from Vanderbilt University Medical School in 1953.He completed his residency in orthopedics at Vanderbilt in 1960.He became a board certified orthopedic surgeon in 1963.Thereafter,he was a professor of medicine at the University of Missouri from 1965 until 1983.He testified to membership in the American Academy of Orthopedic Surgeons and the Clinical Orthopedic Society.
Culley testified that over the course of his career he attended meetings and seminars on the subject of knee surgery where various Virginia orthopedic surgeons were also present.He stated that one of the professors of orthopedic surgery at the Medical College of Virginia had been one of his residents when Culley was at Vanderbilt.He further testified that he subscribes to and reads the Journal of Bone and Joint Surgery,which he described as the standard reference journal for the specialty.He said that there are no state medical specialty journals.For example,according to Culley,there is no “Virginia Journal of Orthopedic Surgery.” He testified that,as a professor,he taught orthopedic surgery to students who might start their practice in any state in the union and that,as far as he was aware,no state had any additional or special requirements as a prerequisite to practicing orthopedic surgery.
According to Culley,the standards of practice in orthopedic surgery apply everywhere.Moreover,according to him,the requirements that must be fulfilled to receive board certification are much more stringent than any state licensing requirement.He said that,to his knowledge,there were no state standards in orthopedics that would be contrary to national standards.
Culley also testified that in preparing for trial he had reviewed the depositions of Drs.Henning,Pruner,and Wilson.He also had read the deposition of and talked personally with Dr.Richard H.Fisher,an orthopedic surgeon who practiced in the Roanoke area.Culley testified that in his reading he did not see anything that would indicate a standard of care in Virginia which differed from the standard of care elsewhere.In particular,Culley said that he agreed with Dr.Wilson,a Virginia-trained physician,who stated in his deposition that the techniques of orthopedic surgery are basically the same nationwide.Culley also agreed with Dr.Wilson’s view that the recognition of the problem which allegedly had paralyzed Mrs.Thomas was basically the same everywhere.Moreover,Culley testified that when he discussed the case with Dr.Fisher they both analyzed the problem in the identical manner.
On cross examination,Culley admitted that he had never practiced orthopedic surgery in Virginia,that no Virginia patient had ever been transferred to him,that he had given no lectures in Virginia,and that he had not treated Thomas.Nevertheless,Culley concluded,based on all the items mentioned in his direct testimony,that he knew the standard of care of a reasonably prudent orthopedic surgeon practicing in Virginia.The trial court agreed and found him qualified to testify.
Code § 8.01-581.20 concerns the standard of care and expert testimony in a medical malpractice case;it provides in pertinent part as follows:
[I]n any action against a physician … to recover damages alleged to have been caused by medical malpractice where the acts or omissions so complained of are alleged to have occurred in this Commonwealth,the standard of care by which the acts or omissions are to be judged shall be that degree of skill and diligence practiced by a reasonably,prudent practitioner in the field of practice or specialty in this Commonwealth and the testimony of an expert witness,otherwise qualified,as to such standard of care,shall be admitted….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.(Emphasis added.)
The predecessor to this statute,which changed the standard of care from a local standard to a statewide standard,was enacted following this Court’s decision in Bly v.Rhoads,216 Va.645 (1975).In Bly,we declined to adopt a nationwide standard of care on the ground that it was a question for the legislature.Thus,Code § 8.01-581.20 and its predecessor are doubly significant: they adopt a statewide standard and implicitly reject a national standard.
In light of the statutory language,in order for a doctor to qualify as an expert witness in Virginia,in a case of this kind,he must show that he is “familiar” with the Virginia standard of care.In Grubb v.Hocker,229 Va.172 (1985),we pointed out,in essence,that there is no rigid formula to determine the knowledge or fam-il iarity of a proffered expert concerning the Virginia standard of care.Instead,that knowledge may derive from study,experience,or both.
Because the question of Dr.Culley’s qualification as an expert comes to us on appeal,it must be noted that the question whether an expert is qualified rests largely within the sound discretion of the trial court.Further,… “a trial court should not be reversed for permitting a witness to testify as an expert unless it clearly appears that he was not qualified in the field in which he tendered his evidence.”
Although,if called upon to decide this issue,another trial court or members of this Court may have ruled Culley unqualified to testify,it does not clearly appear that Culley was not qualified to testify as an expert.He read the deposition of,and discussed the case with,Dr.Fisher,a Virginia orthopedic surgeon,and both men analyzed the case identically.He considered the deposition of Dr.Wilson,who studied and practices in Virginia,and agreed with Dr.Wilson that the techniques of orthopedic surgery and the recognition of the particular medical problem in question were basically the same in Virginia as elsewhere.Finally,he reviewed the depositions of the two other Virginia doctors who had treated the patient and was thus able to observe how they had approached the case.Given the evidence on this issue,we hold that the trial court did not err in finding Dr.Culley qualified to testify as an expert.
II.
The second issue also concerns Dr.Culley.Defense counsel sought to ask Culley how he became involved in the case.The trial court would not permit any question other than whether Dr.Culley was being paid to come to court to give his testimony.(https://www.daowen.com)
The defendants made a question-and-answer proffer of what they intended to elicit from Dr.Culley.In the proffer,Culley testified that he learned of the case from a Dr.Charow,a New York physician who runs a company called Professional Medical Witnesses,Inc.That company identifies other physicians throughout the country who are willing to review medical records and provide medical testimony.Dr.Charow advertises his services in legal and other publications throughout the United States.Culley signed an agreement with Dr.Charow to review cases.Culley was to receive a fee of $200 for reviewing depositions or transcripts.He was to receive another fee for testifying but said he did not know what his fee was for the instant case because the fee was charged by Dr.Charow,who in turn paid Culley.Culley said he was to be paid his fee regardless of the outcome of the trial.Culley’s expenses were paid directly by plaintiff.Dr.Charow also was to receive a fee.
When the trial resumed,the jury heard a very brief exchange based on the only question permitted by the trial court.Question: “You have been paid to come here.” Culley gave this reply: “Yes.So have you.”
The defendants argue that they were precluded from exploring the relationship among Professional Medical Witnesses,Inc.,Dr.Charow,Dr.Culley,and the plaintif f.They contend that they sought to establish bias,prejudice,or relationship.They submit that questions on these points are never collateral and that they had a right to bring to the jury’s attention the information set forth in their proffer.We agree.
The plaintiff argues that it was within the trial court’s sound discretion to limit cross examination as it did.Plaintiff contends that the trial court’s ruling shows that Dr.Culley impressed the court “with his having come to an honest conclusion,satisfactory to himself….” According to plaintiff,in Culley’s lengthy qualification testimony – which,it must be noted,the jury properly did not hear –“there was no intimation whatsoever that he did anything other than honestly and objectively evaluate Mrs.Thomas’ claim.” Finally,plaintiff makes this point:
It is respectfully submitted that it was the obvious intent and sole purpose of this proposed line of questioning for the jury to draw some adverse,clandestine inference from Dr.Culley’s perfectly proper association with Dr.Charow and Professional Medical Witnesses.
Our response can be summed up in one word: “Precisely.” The trial court’s ruling prevented defendants from doing precisely what defendants had a right to do.The defendant doctors were entitled to attempt to persuade the jury that Dr.Culley was a “doctor for hire,” who was part of a nationwide group that proffered themselves as witnesses,on behalf of medical malpractice plaintiffs.Once the jury was made aware of this information it was for the jury to decide what weight,if any,to give to Culley’s testimony.This was a classic case of an effort to establish bias,prejudice,or relationship.
The trial court went too far when it limited defendants’ cross examination to the bare question whether Dr.Culley was being paid to testify.And,unlike what happened [in another case],the improper limitation of questioning in this case was not made harmless by the development,through other sources,of the information that related to bias,prejudice,or relationship.We hold that it was reversible error to limit defendants’ cross examination on this issue to this extent.
Because the trial court erred in limiting cross-examination of plaintiff’s expert witness,we will reverse the judgment of the trial court and remand the case for a new trial consistent with this opinion.
Reversed and remanded.
RUSSELL,JUSTICE,dissenting in part.
I agree that the judgment should be reversed because of the trial court’s limitation of the defendant’s right to cross-examine Dr.Culley on the issue of bias,but I do not think Dr.Culley established sufficient familiarity with the applicable statewide standard of care to qualify as an expert witness in the first place.
Dr.Culley had practiced orthopedic surgery in Missouri and had taught medicine in Missouri and in Tennessee.He had discontinued both practice and teaching at the time of trial,and was then employed by a life insurance company in Connecticut.He could demonstrate no study,training,or experience which would have established the slightest familiarity with the standard of care prevailing in Virginia.
The majority opinion concludes that the trial court acted within its discretion in qualifying Dr.Culley because Dr.Wilson,a Virginia practitioner who did not testify that the Virginia standard was violated in this case,had opined in a deposition that certain techniques and diagnostic practices were “basically the same in Virginia as elsewhere.” Dr.Culley expressed a similar opinion.In my view,those attempts to lay a foundation fell far short of establishing Dr.Culley’s familiarity with the statewide standard required by [the statute].
In [Bly],we were asked to abandon the long-established “similar local community” standard and to adopt a national standard for the qualification of expert witnesses in medical malpractice cases.Although we noted the strong arguments made for the adoption of a national standard,we declined to do so by judicial fiat.We held that such a fundamental change in the law should be made,if at all,by the General Assembly.
The legislature responded in 1979,as the majority notes,by the adoption of Code § 8.01-581.20 after thorough study and debate.The legislative decision was not to adopt a national standard,but rather to substitute a statewide standard unless the trial court found from the evidence that a local community standard was more appropriate in a particular case.The General Assembly has since had many opportunities to adopt a national standard,but has continually declined to do so.
Here,the majority opinion has approved an exercise of judicial discretion which effectively substitutes a national standard in lieu of the scheme adopted by the General Assembly.I do not think judicial discretion extends so far.The majo-r ity would permit trial courts,in their discretion,to qualify so-called experts who have no familiarity whatever with the standards of professional care prevailing in Virginia,provided a Virginia practitioner can be found who will express the opinion that the Virginia standard is the same as standards prevailing nationwide.
A major weakness in the majority’s reasoning is the dubious quality of such an opinion.A Virginia practitioner can hardly be expected to have familiarity with the standards prevailing throughout each of the other 49 states,including both their urban and rural areas.I doubt that such an omniscient physician exists.His opinion of nationwide uniformity has no more value than that of the imported “expert” who,although having no knowledge of the standards prevailing in Virginia,is nevertheless fully prepared to testify that they were violated.Another weakness in the majority’s conclusion is that the General Assembly has directly rejected the same result.
Since the majority opinion leaves the qualification of expert witnesses having no familiarity with Virginia standards within the discretion of our circuit courts,it is to be hoped that they will continue to exercise the degree of judicial restraint we exercised in [Bly],and leave the adoption of a nationwide standard to the General Assembly.