10 Apr Virginia Medical Malpractice: VSC Reliable Authority – a Lawyer’s Usage
On April 18, 2008, the Virginia Supreme Court addressed the admissibility of “reliable authority” under Va. Code Ann. §8.01-401.1. The medical malpractice case is Bostic v. About Women OB/GYN, P.C., 275 Va. 567 (2008).
In Bostic, defense counsel read article quotes and questioned his client about the same while on the stand as a fact witness. Defense counsel overcame plaintiff’s objection by representing that the defense expert subsequently would lay the necessary evidentiary foundation for the article. Id. at 572-573.
The Virginia Supreme Court in Bostic recounted that the 1994 Ammendment to §8.01-401.1 inserted “two preconditions to the admission of hearsay expert opinions as substantive evidence on direct examination: First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises; Second, the statements must be established as ‘a reliable authority’ by testimony or by stipulation.” Id. at 576. “The statutory term means that the witness must testify that he relied on the article in forming his opinion….” Id. at 577.
Thus, in Bostic the defendant’s foundation was insufficient where her medical malpractice expert accepted the article “only partially” and was “candidly uncertain”. Id. Moreover, the Virginia Supreme Court ruled that plaintiff’s request for a cautionary instruction after that expert’s insufficient testimony was not too late, where plaintiff had objected to the article when first introduced. Id. at 577-578 (reversing and remanding defense verdict).