Virginia Medical Malpractice: VSC Out-of-State Experts – a Lawyer’s Qualification

Virginia Medical Malpractice: VSC Out-of-State Experts – a Lawyer’s Qualification

On January 16, 2009, the Virginia Supreme Court handed down an opinion on qualification of out-of-state experts pursuant to Va. Code Ann. §8.01-581.20. The medical malpractice case of wrongful death is Jackson v. Qureshi, 277 Va. 114 (2009).

Jackson addressed the statutory presumption, “knowledge” requirement, and “active clinical practice” requirement for medical malpractice standard of care experts. First, the out-of-state expert was presumed to know Virginia’s statewide standard of care by having met the “educational and examination requirements of the statute,” per the “letter from the Commonwealth of Virginia Department of Health Professions”. Id. at 122. Second, the statutory “knowledge” requirement was shown by the out-of-state expert’s “area of qualification and certification” having “certain overlapping and medical practices and similar standards of care” with the defendant’s “area of qualification and certification”; which essentially was established by the out-of-state expert’s own testimony. Id. at 122-123. Third, the out-of-state expert satisfied the statute’s “active clinical practice” requirement where in his “clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same,” with no “minimum threshold amount of time” beyond deminimis being required. Id. at 124-125.