May v. Caruso, Record No. 012560.

• Decision Date: 13 September 2002
• Docket Number: Record No. 012560.
• Citation: 568 S.E.2d 690,264 Va. 358
• Parties: Robert A. MAY, Executor of the Estate of Virgil R. May, M.D., Deceased, v. Anthony c. CARUSO, M.D., et al.
• Court: Virginia Supreme Court

568 S.E.2d 690

264 Va. 358

Robert A. MAY, Executor of the Estate of Virgil R. May, M.D., Deceased, v. Anthony c. CARUSO, M.D., et al.

Record No. 012560.

Supreme Court of Virginia.

September 13, 2002.

Anthony M. Russell (S.D. Roberts Moore, Roanoke; Monica L. Taylor; Guy C. Crowgey, Richmond; Gentry, Locke, Rakes & Moore, Roanoke; Eck, Colins & Marstiller, Richmond, on briefs), for appellant.

Rodney K. Adams (Kelvin L. Newsome; Anne M. Glenn; LeClair Ryan, on brief), Richmond, for appellees.

Present: All the Justices.

KOONTZ, Justice.

In this appeal, we consider whether the trial court erred in excluding certain evidence proffered by the plaintiff in a medical malpractice action. The trial court ruled that the plaintiff had not satisfied the requirements of the hearsay exception for statements published in authoritative treatises and articles contained in Code § 8.01-401.1 and, thus, prohibited the introduction into evidence of statements contained in certain published medical literature relied upon by the plaintiffs expert witness. The trial court also excluded certain medical treatment records proffered by the plaintiff, ruling that this evidence was cumulative of prior testimony. Following a jury verdict for the defendant, plaintiff appealed, assigning error to these two actions of the trial court. We will address each issue seriatim, stating within our discussion the relevant facts.

On September 29, 2000, Robert A. May, executor of the estate of Virgil R. May, M.D., filed a motion for judgment alleging that Dr. May's death was the result of medical malpractice. Anthony C. Caruso, M.D. and his incorporated medical group, Cardiovascular Associates of Virginia, P.C., (collectively "Dr. Caruso") were named as defendants to the action. For purposes of our analysis of the issues presented in this appeal, the principal allegation of the motion for judgment was that Dr. May suffered a severe stroke and ultimately died as a result of Dr. Caruso's breach of the standard of care by failing to provide anticoagulant therapy to Dr. May as part of his course of treatment related to the implantation of a temporary pacemaker.

Prior to trial, the executor provided Dr. Caruso with copies of nine medical journal articles and three abstracts of medical articles totaling fifty-one pages of text that the executor had identified in his designation of medical literature relied upon by his expert witness, Dr. Albert Waldo. Dr. Caruso filed a motion in limine to exclude the introduction of any statements contained in this literature. In that motion, he asserted that the executor had failed to identify, as required by Code § 8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his expert opinion that Dr. Caruso had breached the applicable standard of care. The executor contended, and continues to contend on appeal, that the requirements of Code § 8.01-401.1 are satisfied by providing copies of the published literature containing the statements relied upon by an expert witness, and that identification of discrete, specific statements is not required. The trial court disagreed with the executor and sustained the motion in limine.

The executor's first two assignments of error address the trial court's interpretation and application of Code § 8.01-401.1. In previously construing Code § 8.01-401.1, we held that although this statute authorizes the admission into evidence of an expert's opinion that may be based in whole or in part on inadmissible hearsay, it did not authorize the admission of any hearsay opinion on which the expert's opinion was based. McMunn v. Tatum, 237 Va. 558, 566, 379 S.E.2d 908, 912 (1989); accord Todd v. Williams, 242 Va. 178, 181, 409 S.E.2d 450, 452 (1991)

. In 1994, the General Assembly amended Code § 8.01-401.1. In relevant part, this amendment to Code § 8.01-401.1 provides:

To the extent ... relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits. If the statements are to be introduced through an expert witness upon direct examination, copies of the statements shall be provided to opposing parties thirty days prior to trial unless otherwise ordered by the court.

In Weinberg v. Given, 252 Va. 221, 225, 476 S.E.2d 502, 504 (1996), we held that the 1994 amendment to Code § 8,01-401.1 "is clear and unambiguous." We further held that this amendment made a substantive change in Code § 8.01-401.1 to permit, in certain limited circumstances, the hearsay content of certain statements contained in published and authoritative literature to be read into the record as substantive evidence, provided no other evidentiary rule prohibits such admission. Id. at 226, 476 S.E.2d at 504. In Weinberg, however, we were not called upon to address any distinction the amendment makes between the admissible statements and the "treatises, periodicals or pamphlets" in which the statements are contained. The present appeal requires that we do so.

Pertinent to the procedural context in which the issue arose in this case, the clear and unambiguous language of the statute limits the hearsay exception applicable to statements to be introduced through an expert on direct...