Virginia: Medical Malpractice – a Lawyer’s Reliance

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The Virginia Supreme Court construes Va. Code Ann. §8.01-401.1 strictly, as it is a statute in derogation of the common law against admission of hearsay:

In enacting the 1994 amendments to Code §8.01-401.1, the General Assembly was clearly aware of those dangers and sought to avoid them by inserting two preconditions to the admission of hearsay expert opinions as substantive evidence of direct examination. First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises….

See, Bostic v. About Women OB/GYN, P.C., 275 Va. 567, 576 (2008)(emphasis added)(attached). The Virginia Supreme Court in its Bostic medical malpractice opinion emphasized that “relied upon” means “in forming his opinion,” not “to talk to this jury”:

The statutory standard is not met by an expert’s testimony that he relied upon it only to use ‘to talk to this jury,’ as the testifying witness did in the present case. The statutory term means that the witness must testify that he relied on the article in forming his opinion, which is consistent with the views expressed by the absent author.

Id. at 577 (emphasis added). Bostic follows another medical malpractice decision, May v. Caruso, 264 Va. 358, 361 (2002)(emphasis added), which also speaks in terms of “relied upon” to reach opinion in advance of trial, not just at it: “In that motion [in limine, which was granted and upheld on appeal], he asserted that the executor had failed to identify, as required by Code §8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his opinion….”