Jackson v. Qureshi

• Decision Date: 16 January 2009
• Docket Number: Record No. 080502.
• Citation: 671 S.E.2d 163,277 Va. 114
• Parties: Inez JACKSON, Administratrix of the Estate of James M. Jackson, Deceased v. Faiqa Aftab QURESHI, M.D., et al.
• Court: Virginia Supreme Court

671 S.E.2d 163

277 Va. 114

Inez JACKSON, Administratrix of the Estate of James M. Jackson, Deceased v. Faiqa Aftab QURESHI, M.D., et al.

Record No. 080502.

Supreme Court of Virginia.

January 16, 2009.

From the Circuit Court of the City of Norfolk, Karen J. Burrell, Judge.

Philip J. Geib, Virginia Beach, for appellant.

Glen A. Huff (John A. Braley IV, Terry L. Jenkins, Huff Poole & Mahoney, on brief), Virginia Beach, for appellees.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

In this wrongful death action, the sole issue is whether a plaintiff's proffered medical expert witness satisfied the criteria of Code § 8.01-581.20 to testify on the standard of care in the defendant's specialty. Because we find that the record clearly demonstrates the witness met the statutory "knowledge" requirement and "active clinical practice" requirement, see Wright v. Kaye, 267 Va. 510, 518, 593 S.E.2d 307, 311 (2004), and was therefore qualified to testify as an expert with regard to the medical procedure at issue, we will reverse the circuit court's judgment excluding the medical expert witness' testimony.

BACKGROUND

The only issue before us concerns the question whether an expert witness was qualified to testify. Therefore, "we need recite only those facts necessary to our resolution of the appeal." Dagner v. Anderson, 274 Va. 678, 681, 651 S.E.2d 640, 641 (2007). Accord Budd v. Punyanitya, 273 Va. 583, 587, 643 S.E.2d 180, 181 (2007); Molchon v. Tyler, 262 Va. 175, 180, 546 S.E.2d 691, 695 (2001).

Inez Jackson, (Jackson), administratrix of the estate of James M. Jackson, deceased, (infant Jackson), filed a wrongful death action against Faiqa Aftab Qureshi, M.D., and her employer, Children's Specialty Group, PLLC. Jackson alleged, among other things, that Dr. Qureshi, while acting within the scope of her employment, negligently discharged infant Jackson and failed to admit him to inpatient hospital care when the infant presented at an emergency room with signs of respiratory distress and/or pertussis.¹ She claimed that, as a direct and proximate result of Dr. Qureshi's failure to comply with the applicable standard of care, infant Jackson ultimately died from pertussis and other complications caused by the infection. Finally, Jackson asserted that, during all times relevant to the claim, Dr. Qureshi "was a physician licensed to practice medicine in the Commonwealth ... and was engaged in the practice of pediatric emergency medicine and/or pediatric medicine."

During discovery, Jackson identified John F. Modlin, a physician licensed in New Hampshire and board certified in pediatrics and pediatric infectious diseases, as her only standard of care expert. Prior to trial, the defendants moved the circuit court to exclude Dr. Modlin's testimony as an expert witness on the standard of care. The parties agreed that the circuit court could decide the motion by using Dr. Modlin's deposition testimony and voir dire testimony elicited at a previous trial.² Jackson also admitted into evidence a letter from the Commonwealth of Virginia Department of Health Professions, certifying "Dr. Modlin's credentials meet the educational and examination requirements for licensure in Virginia." Jackson further agreed that if the defendants prevailed on the motion to exclude Dr. Modlin's testimony, she would not name a replacement standard of care expert and "the case would come to a close."

Turning now to the testimony considered by the circuit court, Dr. Modlin, during his voir dire direct examination, first testified about his qualifications. Dr. Modlin has been a professor of pediatric medicine at Dartmouth Medical School for the past 15 years. He has served as chairman of the pediatric department for approximately seven years and also has worked as a physician with the infectious disease group at the Dartmouth Hitchcock Medical Center. Dr. Modlin explained that, as chairman of the department of pediatrics and as a medical director of the Children's Hospital at Dartmouth Hitchcock Medical Center, he has responsibility for both clinical and academic missions.

With regard to his clinical responsibilities, Dr. Modlin testified that he spends about 25 to 30 percent of his time in direct patient care, divided between two areas, "one as an infectious disease physician," and the other "in a general pediatric clinical position." He explained that, in the latter setting, he has direct responsibility for patient care of children admitted to "a general pediatric ward," and that many of those patients are infectious disease patients. Dr. Modlin testified that the pediatric ward admits from five to thirteen patients per day and that he has "direct responsibility for all of those patients." According to Dr. Modlin, a child may be admitted to the pediatric ward through several different routes:

They may be admitted directly from the outside, where they do not pass through the emergency room. There will be other patients who will first come to the emergency room, and because they are sick require admission and will be directly admitted to the ward.

We at Dartmouth have what we call an urgent care clinic, where many of the pediatric patients when they first arrive at the emergency room are so called triaged by the nurses. They are evaluated, and if they don't have a medical condition that puts them at very high risk where their life is clearly being threatened right then and there, most of the patients who are sick are actually sent up to our urgent care clinic.

So, quite a bit of the care that I provide in the acute care setting actually is done in the urgent care clinic. Again, it's mostly in the setting of supervising pediatric residents and medical students who are maybe providing direct care, but ... I would have ultimate responsibility for the outcome for those patients.

Dr. Modlin testified at length concerning his knowledge of the infectious disease, pertussis. He responded affirmatively when asked if he is "familiar with the standard of care for a reasonably prudent pediatrician physician in the Commonwealth of Virginia as to the care and treatment of those who present with respiratory problems and/or pertussis."

During cross-examination, Dr. Modlin admitted he is not board certified in pediatric emergency medicine and does not present himself as an expert in "pediatric emergency department medicine." He further admitted that he has not worked in an emergency room department since the early 1980s, and that the hospital in which he currently works does not have a separate emergency department for children. Dr. Modlin, however, testified that he "would feel quite confident to deal with most any infectious disease that presented to an emergency department and ... that [he] could render an ... expert opinion, regarding any infectious disease that might show up in the [emergency department]."

Dr. Modlin admitted that, during the past five years, he has not been called upon to diagnose a single patient with pertussis in an emergency room setting. However, Dr. Modlin pointed out that he has treated such patients in the urgent care clinic and that this setting is "very similar to an emergency room setting."

Dr. Modlin's deposition, which was taken approximately a month before the first trial, provided much of the same information. When asked about the clinical activities that occupy 25 to 30 percent of his time, Dr. Modlin responded, "I see patients principally in the inpatient setting. I see infectious disease consultations, both adult and pediatric infectious disease consultations; and I also maintain a limited pediatric infectious disease outpatient practice." Dr. Modlin testified that he does see patients in the emergency department on a consultation basis, but admitted that he "actually [does not] work as an emergency room physician." He further admitted that he is "not trained or board certified in emergency medicine." Dr. Modlin, however, testified, "I believe that all pediatricians who care for acutely ill children, regardless of whether they are [emergency department] physicians or pediatric [infectious disease] physicians or general pediatricians should appreciate how pertussis can present in an infant."

Also during his deposition, Dr. Modlin made it clear that his "only concern regarding the standard of care [is that infant Jackson] should have been admitted to the hospital." When asked whether his "sole opinion" is that "the standard of care under the circumstances presented [was] such that the infant ... should have been admitted to the hospital," Dr. Modlin answered, "Correct."

After considering the evidence and oral arguments, the circuit court granted the defendants' motion. The circuit court, in light of the stipulation reached between the parties, then ordered the case dismissed with prejudice. Jackson appeals from the circuit court's judgment.

DISCUSSION

The sole issue on appeal is whether the circuit court abused its discretion by holding that Dr. Modlin was not qualified to testify as an expert on the standard of care. "The question whether a witness is qualified to testify as an expert is largely within the sound discretion of the trial court." Lloyd v. Kime, 275 Va. 98, 108, 654 S.E.2d 563, 569 (2008) (internal quotations omitted); accord Perdieu v. Blackstone Family Practice Ctr., 264 Va. 408, 418, 568 S.E.2d 703, 709 (2002). "`A decision to exclude a proffered expert opinion will be reversed on appeal only when it appears clearly that the witness was qualified.' " Perdieu, 264 Va. at 418, 568 S.E.2d at 709 (quoting Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)); see also Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d 172, 174 (2000) ("we will reverse a holding that a witness is not qualified to testify as an expert when it appears clearly from the record that the witness possesses sufficient knowledge, skill, or experience to make him competent to testify as an expert on the subject...