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Chandler v. Graffeo11/5/2004
e and after joint deliberation, render an opinion within 30 days. Code § 8.01- 581.7:1 provides:
Unless the parties otherwise agree, any opinion of the panel shall be rendered no later than siX months from the designation of the panel unless the judge shall extend the period one time, not to exceed ninety days, upon a showing of extraordinary circumstances. If the opinion of the panel is not rendered within the time provided, any panel opinion rendered subsequently shall be inadmissible as evidence unless the failure of the panel to render a decision within the time provided was caused by delay on the plaintiff's part.
On February 27, 2001, this Court designated the Panel members to review this case, and a Panel hearing was originally scheduled for May 25, 2001. The trial court, however, cancelled this date because Dr. Ronald L. King, then a defendant and Panel witness, was scheduled to be "out of the country" at that time. When the hearing date was cancelled, nearly three months of the six-month statutory period remained. Nevertheless, the court, without any explanation at the time, reset the hearing for September 4, 2001, eight days beyond the six-month statutory period. The parties did not agree to the extension, and Chandler had nothing to do with any delay or scheduling of the hearing beyond the six-month period.
Prior to trial, Chandler moved to have excluded the Panel's opinion and the members' testimony thereon. The trial court considered this motion on October 8, 2002, one week prior to trial. On that date also, the Defendants, for the first time, moved the court, after the fact, to extend the time for the Panel hearing.
By order entered October 21, 2002, "nunc pro tunc to October 28, 2002," the court denied Chandler's motion to exclude and granted the extension for the Panel hearing. The court found that "there was a showing of extraordinary circumstances in existence, thereby allowing the Court to extend the time for the panel to convene, not to exceed 90 days." The extraordinary circumstances, according to the court, were that Dr. King was out of the country and unavailable for the May 25th hearing date and that "the date most convenient to the Court and the Panel Members was September 4, 2001."
We find nothing in the record to support the trial court's finding that extraordinary circumstances existed to justify setting the Panel hearing date beyond the statutory six-month period when, at the time of the extension, nearly three months of the period remained. The court does not explain why the hearing could not have been conducted within the six-month period. We hold, therefore, that the trial court erred in admitting into evidence the Panel's opinion and its members' testimony thereon.
IV.
We next consider the Panel members' testimony as Defendants' retained experts. Chandler contends that the trial court erred in permitting "trial testimony from two [Panel] members as defendants' retained experts and as panel members, after they had rendered panel opinions in defendants' favor."
Pursuant to Code § 8.01-581.3, a panel shall be composed of two "impartial attorneys," two "impartial health care providers," and a judge of the circuit in which the action is filed who presides over the panel but does not vote. After an opinion is issued, it "shall be admissible as evidence," and " ither party shall have the right to call, at his cost, any member of the panel, except the judge, as a witness. If called, each witness shall be required to appear and testify." Code § 8.01-581.8. Code § 8.01-581.1 defines "impartial health care provider" as a health care provider who (i) has not examined, treated or been consulte
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