Virginia: Medical Malpractice – a Lawyer’s ER

Virginia: Medical Malpractice – a Lawyer’s ER

On December 30, 2015, the Virginia Supreme Court issued an unpublished per curiam order in the alleged wrongful death case of Bailey v. Erdman, No. 150394. It reversed the Hampton Circuit Court’s grant of the defendant doctor’s motion to strike plaintiff’s evidence at jury trial as insufficient and the defendant doctor’s motion for judgment as a matter of law on supposed superseding cause. Id. at 1,4.

The Bailey medical malpractice decision held plaintiff proved a prima facie case by expert standard of care testimony, which presented “a classic ‘credibility battle’ among experts,” and thereby a “‘question of fact’ for the jury”. Id. at 2. The Bailey wrongful death ruling recounted further that the nature and extent of the contacted specialist’s participation was a disputed question of fact for the jury, and the controlling law as: “In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of the defendant’s negligence that it alone, without any contributing negligence by the defendant in the slightest degree, causes the injury.” Id. at 2-3 (emphasis added).

The Bailey medical malpractice order also ruled on the limits of testimony by a medical doctor as a lay witness. It delineated that fact and even lay opinion testimony based on personal knowledge, experience, and observations was permissible; but that answering hypothetical questions as a lay witness was impermissible (despite the doctor obviously possessing expertise). Id. at 3-4.