Virginia: Medical Malpractice – a Lawyer’s Expert

Virginia: Medical Malpractice – a Lawyer’s Expert

On December 12, 2014, the Virginia Supreme Court issued its unpublished per curiam Order in McFadden v. Kiernan, Record No. 140369. It is a medical malpractice case involving disputed expert testimony.

In McFadden, plaintiff patient objected to and appealed defendant doctor being permitted to testify as an expert, arguing it violated the two-expert per specialty limitation of Va. Code §8.01-581.20(C) and, alternatively, was beyond the defense expert designation. Id. at 4-5. However, the Virginia Supreme Court found that defendant doctor’s expert testimony merely was “cumulative” and, thereby, its admission at most “harmless” error. Id. at 6.

Significantly, the Virginia Supreme Court in McFadden explained that defendant doctor’s expert testimony simply duplicated that not only of his own other experts, but also of one of plaintiff patient’s own standard-of-care experts. Id. Hence “the evidence improperly admitted was merely cumulative and did not deprive [Ms. McFadden] of a fair trial.” Id.