Virginia: Patient Fall – a Lawyer’s Expert

Virginia: Patient Fall – a Lawyer’s Expert

In the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15, in Circuit Court for the City of Newport News, Virginia, Plaintiff’s orthopaedic surgeon was her attending physician during her Riverside hospital stay. He performed her initial and her repair orthopedic surgeries under general anesthesia and followed her before, during, and after the same.

That treating orthopaedic surgeon is designated as a medical malpractice expert in Burrell, in addition to what is stated in his chart entries. But Defendants do not want him telling the jury that his own “post-fall repair surgery worsened her pre-existing neurological [acute stroke] problems.”

Defendants in Burrell cite CNH Am., LLC v. Smith, 281 Va. 60, 68 (2011) and Tazewell Oil Co. v. United Virginia Bank, 243 Va. 94, 110 (1992). Both of those cases – which do not involve a medical doctor or even medical causation – are distinguishable from the particular patient fall facts at bar.

In Tazewell, the Virginia Supreme Court upheld qualification of an expert in “troubled businesses,” but not the “banking industry” with which he was not even “familiar generally”; and it is unclear whether that distinction in qualification really limited the parameters of his testimony versus simply his stature/weight before the jury. id.; which differs from what Defendants seek in the Burrell medical malpractice case. In CNH, the Court rejected an individual with only some experience in mining industry hydraulic systems testifying as manufacturing and design expert re agricultural disc mowers, where he “admitted that he was not an expert in the hydraulic systems of mowers and had no experience in the design or manufacture of mowers or any other agricultural equipment [and] lacked specific expertise in the hydraulics of disc mowers and was unfamiliar with the hydraulic system of this mower.” 281 Va. at 68.

For Defendants’ CNH quotation in Burrell (“expert’s qualifications must correlate to the opinions for which the expert is being offered”), see, Defendants’ Memorandum at 4; CNH cites as its authority, King v. Sowers, 252 Va. 71, 78 (1996). UnlikeCNH or TazewellKing actually is on point with the matter sub judice and favorable to the patient fall victim at bar, upholding a pathologist’s testimony about his radiological interpretation and rheumatological diagnosis – despite him admittedly not being an expert in the fields of radiology or rheumatology:

“Dr. Zimmerman testified that he regularly reviews CT scans, X-ray films, and other tests in evaluating tissue samples for the presence of disease. He explained that, although he has not had formal training in radiology and does not consider himself an expert in that field, he is able to read and interpret CT scans. Dr. Zimmerman further stated that, if he is unable to read a CT scan, he consults with a radiologist. However, he testified that he was able to read and interpret the CT scans of King’s eye without requesting a radiologist’s opinion. Dr. Zimmerman also indicated that, as a pathologist, he is familiar with the cellular manifestations that are characteristic of Sjogren’s syndrome.” *** We conclude that the trial court did not err in permitting Dr. Zimmerman’s testimony on these issues, since the evidence showed that he regularly evaluated CT scans in his pathology practice, and that he has skills and experience in recognizing Sjogren’s syndrome. The fact that Dr. Zimmerman did not qualify as an expert in radiology or rheumatology is relevant only to the weight to be given his testimony by the trier of fact.”

Id. (citation omitted) (emphasis added).

Consistent with the patient fall position in BurrellLo v. Burke, 249 Va. 311, 318 (1995) and Butler v. Greenwood, 180 Va. 456, 462 (1942) uphold qualification of “orthopedic surgeon” and “general surgeon”. “[B]y the great weight of authority, a physician or surgeon is not incompetent to testify as an expert merely because he is not a specialist in the particular branch of his profession involved in the case; although this fact may be considered as affecting the weight of his testimony.” Id. (emphasis added) (“orthopedic surgeon…was permitted to answer a hypothetical question touching the brain condition of Mr. Greenwood,” who “was under the care of another doctor”).

Analogously to the medical malpractice Plaintiff in Burrell, the Lo Defendant argued “since Dr. Hall is a general surgeon and is not a radiologist or a pathologist, his opinion [that Defendant’s ‘negligence was a proximate cause of Burke’s death’] rested on mere conjecture and improperly was based on subjects on which he was not qualified to offer an expert opinion. We disagree.” 249 Va. at 318 (emphasis added). “In reaching this conclusion, we reject Dr. Lo’s argument that Dr. Hall improperly was allowed to offer opinion testimony on subjects involving radiology and pathology. Dr. Hall testified that while he is not qualified to examine pathology slides or read radiography films, the duties of a general surgeon include the review of reports of all the medical specialists involved in a case. *** Therefore, we conclude that Dr. Hall’s evaluation of pathology and radiology reports in formulating his expert opinion did not constitute improper opinion testimony.” Id. (emphasis added).

Thomas v. Builders Transp., Inc., 28 Va. Cir. 93, 95 (Amherst Apr. 3, 1992) also is on point with the Burrell patient fallvictim’s position: “the fact that Dr. Rodman [a ‘family physician’ treating some patients with heart ailments,] is not a ‘cardiologist’ or cardiothoracic surgeon does not prevent him from giving an expert opinion on this issue [whether the vehicle collision caused the heart attack]. The fact that Dr. Redman may not be a member of one of these specialties only goes to the weight which the trier of fact may place on his testimony.” Id. (emphasis added).

Hollingsworth v. Norfolk So. Ry. Co., 279 Va. 360, 364 (2010) holds “a medical doctor is qualified to give expert testimony about the cause of human physical injury.” Supporting Plaintiff’s medical malpractice experts’ opinions in Burrell, the Virginia Supreme Court has “never required positive proof by scientific testing to establish a factual basis for medical diagnosis and opinion.” Bussey v. E.S.C. Restaurants, Inc., 270 Va.531, 537-538 (2005) (emphasis added)(“lay testimony is admissible to prove proximate causation” and “the lay testimony coupled with the doctor’s diagnosis was sufficient to support the jury verdict”).

Unlike the Tazewell expert who was not “familiar generally” with the banking industry or the would-be CNH expert who was not experienced with the product or its industry, Plaintiff’s treating orthopaedic surgeon in the Burrell patient fall lawsuit is very familiar and experienced with Plaintiff and her procedures/conditions at the pertinent time. Indeed, as her admitting physician, her attending physician, her orthopedic surgeon, and her prior orthopedic surgeon (for the identical procedure on the other hip in 2000), he clearly was the medical doctor most familiar, experienced and involved with Plaintiff, her procedures/conditions and various interactions during February 14-22, 2006.