Virginia: Patient Falls – a Lawyer’s Expert

Virginia: Patient Falls – a Lawyer’s Expert

A cornerstone of Plaintiff’s medical malpractice claim in Burrell v. Riverside Hosp., Inc., No. CL11-01633F-15 in Circuit Court for the City of Newport News, Virginia, is Riverside’s failure to use a “bed alarm” for the high fall risk patient. Use of a “bed alarm” is one of the relevant medical procedures per Plaintiff’s specific allegation in her Complaint at Paragraph 11 (B and C); specific itemizations in her Expert Designations; and repeated specifications in her experts’ depositions, including particularly that use of a “bed alarm” was the necessary first step preceding use of a sitter and/or restraint.

For the 2000 patient fall in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2005), Riverside similarly resorted to a nursing expert who claimed very limited exposure to “bed alarms,” toward undercutting them as standard of care: according to Nurse Vickers, her supposed “limited personal experience with bed alarms was [her] hospital finally getting around to trying [portable] bed alarms,” which “might have been in 1999”. Appeal Appendix at 2859. But Plaintiff successfully moved in limine to limit Vickers’ testimony because she thereby was “not qualified to testify on bed alarms”.

“The Estate argued that because Vickers had not had experience in activating bed alarms, she did not fulfill the active clinical practice requirement for a testifying expert. Code §8.01-581.20,” recounted the Virginia Supreme Court in the 2006Riverside v. Johnson patient fall appeal. The trial court agreed with the Estate and allowed Vickers to testify about fall-risk assessment and fall-risk intervention measures other than bed alarms.” Id. at 534.

At deposition in the current Burrell v. Riverside case, Nurse Willersdorf, who has worked full-time at VCU/MCV for decades, testified that VCU/MCV in general and her Orthopaedic and its other units in particular (except possibly for its ICU) had no “bed alarms” until 2009. Hence by her own account, Nurse Willersdorf has not had any “active clinical practice” in “bed alarms” anywhere close to 1 year of Riverside’s 2006 medical malpractice.

As Johnson briefed to the Virginia Supreme Court in Riverside patient fall case, this Court determines “whether a proffered expert witness satisfies the active clinical practice requirement by referring to the ‘relevant medical procedure’ at issue in a case.” Hinkley v. Koehler, 269 Va. 82, 89 (2005)(citing §8.01-581.20). “‘Actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” Id.(emphasis added).

If a proffered expert has an active clinical practice in most, but not all, of the procedures at issue within one year of the duty breaches, a motion to disqualify as to the unproven procedure should be sustained before medical malpractice trial. Hartman v. Kleiner, 69 Va. Cir. 246 (2005). “The question whether a witness is qualified to testify as an expert is ‘largely within the sound discretion of the trial court’. * * * A decision to exclude a proffered expert opinion will be reversed on appeal only when it appears clearly that the witness was qualified.” Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 418 (2002)(emphasis added).

Since the landmark Riverside v. Johnson decision, Virginia Supreme Court and Federal Court alike have reaffirmed the “active clinical practice” requirement. E.g., Workman v. Baker, 2010 U.S. Dist. LEXIS 110022 (W.D.Va. Oct. 13, 2010)(Virginia law); Jackson v. Qureshi, 277 Va. 114, 124-125 (2009); and Lloyd v. Kime, 275 Va. 98, 110-111 (2008). That disqualifies Nurse Willersdorf from testifying vis-à-vis “bed alarms” in the pending Burrell v. Riverside patient fall lawsuit.

Lloyd reiterated: “The purpose of the requirement in §8.01-581.20 that an expert have an active practice…is to prevent testimony by an individual who has not recently engaged in the actual performance of the procedures at issue;” and “[T]he term ‘actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” 275 Va. at 110 (emphasis added). The Lloyd medical malpractice opinion affirmed that plaintiff’s expert “was not qualified to testify as an expert witness on standard of care as to Lloyd’s allegation of intraoperative negligence” because the expert had “no active clinical practice in performing spinal surgery”; despite him being qualified “as to Lloyd’s allegation of postoperative negligence”. Id. at 111.

Jackson emphasized that de minimis clinical practice of a procedure at issue does not satisfy the medical malpracticerequirement of “active”: “Certainly, there may be instances when the expert’s clinical practice with regard to the medical procedure at issue is so de minimis that the witness would not meet the ‘active clinical practice’ requirement.” 277 Va. at 125. In Jackson, plaintiff’s expert performing the same sole procedure at issue in “’very similar’ clinical settings” satisfied the requirement. Id. at 124-125.

Applying Virginia medical malpractice law in Workman, United States District Court observed that it looks “both to plaintiff’s pleadings and to the allegations in her motion for judgment in order to determine that ‘the acts [plaintiff] claims form the basis of her action and violate the standard of care are medical procedures applicable’;” and that “[s]imply because the expert may be qualified to testify with regard to a medical procedure that is potentially relevant to the case at hand but not actually in dispute between the parties does not grant the court license to declare his competence on the issue.” 2010 U.S.Dist. LEXIS 110022, *18-19 (emphasis added). Workman rejected plaintiff’s argument that the particular medical procedure at issue “should be construed more broadly,” where plaintiff (like Plaintiff at bar) “targets the performance of the specific procedure, not just the general procedure which is inclusive of the specific” and, moreover, establishes a “significant medical distinction.”Id. at *20-27.