Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Expert Testimony Required and the related topic of medical malpractice. For more information on medical malpractice see the pages on Wikipedia.

Expert Testimony Required-Statutes

See Va. Code § 8.01-20.1 requiring certificate of expert.

Expert Testimony Required-Cases

2012—Bowman v. Concepcion, 283 Va. 552, 722 S.E.2d 260.

Statutes and rule requiring service of process within one year cannot be overridden by trial court without finding that Plaintiff has exercised due diligence as to service. In this medical malpractice case, Claimant did not serve defendant within one year of filing because plaintiff did not have required expert witness statement. Plaintiff could have non-suited prior to dismissal. In this case, dismissal with prejudice was proper.

2008 Webb v. Smith, 276 Va. 305, 661 S.E.2d 457.

Plaintiff claimed she had been advised by her physician that she needed two procedures in order to cure her medical problem. The surgeon conducted one of the procedures but forgot to conduct the other according to plaintiff’s evidence. The failure to perform the second procedure prolonged plaintiff’s problems and necessitated the eventual performance of the second procedure. Supreme Court held that no expert testimony required as to causation.

2007 Holmes v. Levine, 273 Va. 150, 639 S.E.2d 235.

Court discusses the effect of Va. Code § 8.01-399 in terms of doctor testifying at trial.

2002 Pollins v. Jones, 263 Va. 25, 557 S.E.2d 713.<

Medical malpractice action. Trial court instructed jury to find in favor of defendant in this wrongful death action if two or more alternative courses of action existed for defendant to follow and defendant in providing treatment exercised his best judgment and elected proper alternative. That instruction was improper because it was not supported by expert testimony. Jury instruction may be given only if there is evidence to support the instruction.

2002 Tashman v. Gibbs, 263 Va. 65, 556 S.E.2d 772.

Expert testimony required. Medical malpractice action where plaintiff alleged failure to obtain informed consent. In regards to informed consent claim, patient generally is required to establish by expert testimony whether and to what extent any information should have been disclosed. In this case, plaintiff failed to establish by expert testimony that standard of care required disclosure of any particular risks of the procedure and exactly what those risks were, plaintiff likewise failed to establish by expert testimony that physician was required to disclose to patient extent of his experience in performing this procedure. What was established through plaintiff’s testimony was standard of care for physician that required physician to disclose available alternatives to this procedure. There was, however, no evidence that physician’s deviation from the standard of care was proximate cause of plaintiff’s injuries. Because informed consent issue was submitted to jury without evidentiary basis, verdict for plaintiff overturned since it is impossible to tell whether jury decided case on informed consent issue or on issue related to negligent performance of surgery.

1999 Black v. Bladergroen, 258 Va. 438, 521 S.E.2d 168.

Any physician licensed to practice in Virginia is presumed to know the state-wide standard in that specialty. This presumption also applies to any physician licensed in some other state who meets educational and examination requirements for licensing in Virginia. That showing of meeting the Virginia licensing requirement may be established by means of a letter from the Board of Medicine.

1997 Dickerson v. Fatehi, 253 Va. 324, 484 S.E.2d 880.

Surgeon left needle in neck of patient after performing disc operation. These facts plus defendant’s response to request for admission meant no expert testimony required. Record in this case was insufficient to establish applicability of res ipsa loquitur.

1997 Moates v. Hyslop, 253 Va. 45, 480 S.E.2d 109.

Expert testimony required as to what extent information should have been disclosed. Plaintiff failed to produce that expert testimony and therefore summary judgment granted.

1994 Beverly Enters. v. Nichols, 247 Va. 264, 441 S.E.2d 1.

Wrongful death action. Decedent admitted to nursing home. Prior to admission, staff was advised of fact that decedent needed help with eating, otherwise she would choke. Defense witness acknowledged that such assistance was necessary. No expert testimony required on this issue. In certain rare instances such as this, expert testimony is unnecessary because acts of negligence clearly lie within range of jury’s common knowledge and experience.

1990 Commercial Distribs. v. Blankenship, 240 Va. 382, 397 S.E.2d 840.

Decedent in this case was mentally ill resident of licensed home for adults, who left premises and died by suicide. Issues presented are whether defendant was negligent in failing to hospitalize decedent sooner, failing to monitor decedent’s whereabouts, or detain him while arrangements were being made in order to hospitalize him and whether there was inadequate staffing. Trial court correctly ruled that there was no expert testimony required as to second issue. Trial court incorrectly ruled that there was no need for expert testimony as to first issue. Third issue was abandoned at trial.

1986 Raines v. Lutz, 231 Va. 110, 341 S.E.2d 194.

Mere admission of malpractice panel opinion is not sufficient to satisfy plaintiff’s obligation to establish a standard of care. Expert testimony required normally in malpractice on: (1) standard of care, (2) deviation from standard, (3) causation.

1979 Maxwell v. McCaffrey, 219 Va. 909, 252 S.E.2d 342.

Whether witness is qualified to express opinion as expert is largely within sound discretion of trial court. Witness not knowledgeable regarding standards of skill and care exercised by chiropractic practitioners in same or similar areas trial court did not abuse discretion in disqualifying proffered witness. (Action arose before Va. Code §§ 8.01-581.12:1

1979 Ives v. Redford, 219 Va. 838, 252 S.E.2d 315.

There is no requirement that proffered expert witness must have practiced in same locality where defendant practices. Even if witness is unfamiliar with locality in question, he may still be qualified, if location with which he is familiar is similar to one in question. Moreover, no requirement that witness must practice same specialty. If standards differ, witness should be qualified if he demonstrates expert knowledge of standards of defendant’s specialty and of what conduct conforms or fails to conform to these latter standards.

1979 Noll v. Rahal, 219 Va. 795, 250 S.E.2d 741.

Prior to July 1, 1976, standard for specialists in medical malpractice actions was that of other like specialists in good standing, practicing in same or similar localities as defendant and since plaintiff failed to show similarity between Fairfax and Richmond, Fairfax expert of plaintiff was properly excluded where his study and experience of standard, existing for practice of pediatrics in Richmond area, was meager. Summary judgment for defendant affirmed.

1976 Little v. Cross, 217 Va. 17, 225 S.E.2d 387.

Expert witness must adequately establish his knowledge of professional standards required in community, or in similar community. Expert testimony required to establish this standard, to determine if malpractice occurred. Expert offered by plaintiff admitted that he had not seen operation in question during preceding ten years; court sustained objection to expert’s testifying as to negligence in performance of operation.

1976 Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783.

It is conceivable that in certain situations, necessity of disclosure of information by physician to patient would be so obvious that expert testimony would not be necessary.

1963 Roanoke Hosp. Ass’n v. Hayes, 204 Va. 703, 133 S.E.2d 559.

Patient with violent tendencies allowed to remain in open ward; not malpractice case and no expert testimony required.