Virginia: Medical Malpractice – a Lawyer’s Expert (July 27, 2011)

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In Lagumen v. Richardson, 80 Va. Cir. 51 (Chesapeake Jan. 21, 2010), Chesapeake Circuit Court adjudicated the degree of certainty or probability required for a medical expert opinion to be admissible. In that medical malpractice case, the treating physician equated the legal touchstone of “reasonable degree of medical certainty” with being “more likely than not”. Id.

Lagumen cited Graham v. Cook, 278 Va. 233, 246 (2009)(medical malpractice)(“fifty-one percent”); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535-536 (1995)(medical malpractice)(“into the realm of reasonable probability”); Hoffman v. Carter, 50 Va. App. 199, 215 (2007)(workers’ compensation)(“equivalent to the preponderance of the evidence standard”); Black’s Law Dictionary at 1273 (8th ed. 2004)(“more likely than not”); and various out-of-state cases and journals. Id. at 52-55. It upheld the admissibility of the doctor opining “more likely than not”.