Wright v. Kaye
| Decision Date | 05 March 2004 |
| Docket Number | Record No. 030658. |
| Citation | 267 Va. 510,593 S.E.2d 307 |
| Parties | Jennifer WRIGHT v. Richard C. KAYE, M.D. |
| Court | Virginia Supreme Court |
Charles J. Zauzig, III (Claire E. Keena; Nichols, Bergere, Zauzig & Sandler, on brief), Woodbridge, for appellant.
Richard L. Nagle (Michael E. Olszewski; Hancock, Daniel, Johnson, Fairfax, on brief), for appellee.
Present: All the Justices.
Prior to trial in this medical malpractice case, the trial court struck three standard of care expert witnesses designated by plaintiff Jennifer Wright ("Wright"), based on the fact that none had performed a urachal cyst excision, the exact medical procedure performed upon the plaintiff by the defendant, Dr. Richard C. Kaye ("Dr. Kaye"). With leave of court Wright designated a fourth expert witness who had performed that procedure, but the trial court also struck that expert. The trial court then granted a motion for summary judgment by Dr. Kaye, denied Wright's motion for reconsideration, and dismissed Wright's case with prejudice.
On appeal to this Court, Wright assigns error to the trial court's rulings striking all of her expert witnesses, the use of depositions as a basis for the court's decisions, the grant of summary judgment, and the denial of her motion for reconsideration. She also assigns error to the trial court's denial of certain motions in limine.
On August 20, 1997, Dr. Kaye performed diagnostic laparoscopic surgery on Wright to discover the source of her chronic pelvic pain. During the procedure he found a cyst on her urachus.1 Using an internal surgery and suturing device known as an endo-GIA surgical stapler, Dr. Kaye excised the cyst and stapled the affected area closed, noting in his operative report that "[i]t appeared that this was done away from the bladder."
Following removal of the cyst, Wright's bladder was filled with methylene blue and Dr. Kaye noted none was observed in the pelvis. Dr. Kaye did not perform a cystoscopy to visualize the dome of the bladder to determine whether staples were inserted into it during the cyst excision procedure.
Following the surgery, Wright began to experience urinary frequency and urgency with bladder spasms. Eventually she consulted physicians other than Dr. Kaye when her symptoms continued unabated. Approximately one year after the surgery, another surgeon discovered and removed six surgical staples from Wright's bladder, apparently left from the urachal cyst laparoscopy. Wright continues to suffer permanent bladder dysfunction.
Prior to trial Wright designated three expert witnesses2 ("Wright's experts") to testify regarding the applicable standard of care. Wright's experts specialized in the same field of medicine as Dr. Kaye, obstetrics and gynecology, and two of them had subspecialties in urogynecology. Although Wright's experts had all performed multiple laparoscopic surgeries, including the removal of cysts in the female pelvic area near the bladder in procedures employing a surgical stapler, each testified in depositions they had never removed a cyst located on the urachus. Dr. Kaye moved the trial court to strike Wright's experts on the basis that "none of these experts have `recently engaged in the actual performance of the procedures at issue in [the] case.'" Approximately four weeks prior to trial, the trial court granted Dr. Kaye's motion and struck Wright's experts, finding they lacked "knowledge of this particular specialty."
After Wright's experts were stricken, Dr. Kaye moved for summary judgment claiming Wright did not have the required experts to support her allegations of breach of the standard of care. Wright moved for a continuance and leave to designate a new expert witness. The trial court deferred ruling on Dr. Kaye's motion until the trial date and granted Wright's motion to file a supplemental designation of experts. The trial court did not rule on Wright's motion for a continuance, but took it under advisement pending the trial date to await the designation of an expert. Wright timely designated a new expert witness, Dr. Charles M. Jones ("Dr. Jones").
Dr. Kaye had previously designated a standard of care expert, Dr. Hans-Barthold Krebs ("Dr.Krebs"), a shareholder in the same professional corporation as Wright's current treating physician, Dr. Jeffrey A. Welgoss ("Dr.Welgoss"), who was to testify for Wright. Wright filed a motion in limine to exclude and disqualify Dr. Krebs as an expert witness asserting it would be a conflict of interest for him to testify because of the professional relationship between Drs. Krebs and Welgoss. Further, Wright contended that Dr. Krebs' testimony would violate the patient-physician relationship protected by Code § 8.01-399. Wright's motion was denied.
Wright also filed a motion in limine seeking to exclude any testimony regarding pre-operative discussions between Wright and Dr. Kaye concerning the risks of surgery. Wright argued that since she did not claim that Dr. Kaye failed to obtain her informed consent, any testimony concerning discussion of the risks of surgery was not relevant to either negligence or causation and would only confuse the jury. The trial court denied Wright's motion.
Wright filed additional motions in limine to exclude testimony by Dr. Kaye of an intraoperative consultation he undertook by telephone with Dr. Guillermo Gil-Montero ("Dr.Gil-Montero") during Wright's surgery and to prohibit testimony about a prior urachal cyst surgery performed by Dr. Kaye on an unrelated patient. The trial court denied both motions.
On October 28, 2002, the date set for trial, the trial court found that Wright's designation of Dr. Jones raised new issues prejudicial to Dr. Kaye such that Dr. Jones would not be permitted to qualify as an expert witness and testify.
The trial court then denied Wright's motion for a continuance and granted Dr. Kaye's motion for summary judgment.3 Subsequently, the trial court denied Wright's motion for reconsideration of its prior decisions and dismissed Wright's case with prejudice. We granted Wright this appeal.
A physician licensed in Virginia is presumed to know the standard of care in that physician's specialty or field of medicine. Code § 8.01-581.20(A). The presumption also attaches to out-of-state physicians who meet the educational and examination requirements of the statute.4 See, e.g., Black v. Bladergroen, 258 Va. 438, 443, 521 S.E.2d 168, 170 (1999)
. It is uncontradicted that Wright's experts were specialists in the medical field of obstetrics and gynecology, with extensive experience in laparoscopic surgery in the female pelvic region near the bladder including the removal of cysts. All had experience with the endo-GIA surgical stapler and in performing cystoscopies to inspect the dome of the bladder. Accordingly, the statutory presumption that Wright's experts knew the standard of care for Dr. Kaye's specialty field of medicine applied to each of them.
The issue in this case, although not specifically articulated by the trial court, is whether that presumption was rebutted so as to disqualify Wright's experts from testifying as expert witnesses in this case. Under Code § 8.01-581.20(A), a witness to whom the presumption applies may nonetheless be disqualified as an expert witness if he does not meet either of two statutory requisites: (1) to "demonstrate[ ] expert knowledge of the standards of the defendant's specialty and of what conduct conforms or fails to conform to those standards" ("knowledge requirement") or (2) to show that he had an "active clinical practice in either the defendant's specialty or related field of medicine within one year of the date of the alleged act or omission forming the basis of the action" ("active clinical practice requirement"). Conversely, "[a] witness shall be qualified to testify as an expert" if both statutory requisites are met. Code § 8.01-581.20(A) (emphasis added).
Citing our opinion in Sami v. Varn, 260 Va. 280, 535 S.E.2d 172 (2000), Dr. Kaye moved to strike Wright's experts alleging that "none of these experts have `recently engaged in the actual performance of the procedures at issue in [the] case.'" Dr. Kaye thus contended that Wright's experts failed to meet the active clinical practice requirement.
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