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Chandler v. Graffeo11/5/2004
r further proceedings consistent with the views expressed in this opinion.
Reversed and remanded.
JUSTICE AGEE, with whom JUSTICE KEENAN joins, concurring in part and dissenting in part.
I concur in the majority opinion, except as to Part IV. Because I conclude that the trial court did not err in permitting "trial testimony from two [Panel] members as defendants' retained experts and as anel members, after they had rendered panel opinions in defendants' favor," I respectfully dissent as to Part IV of the majority opinion.
The statutory framework for Medical Malpractice Review Panels, Code § 8.01-581.1, et. seq., defines the "impartial health care provider." No question has been raised in this case that the physicians at issue, Drs. Konerding and Watson, fulfilled all requirements of an impartial health care provider at the formation of the Panel, during its deliberations, and in the rendering of its opinion. Nothing in the statutory scheme regulates the "impartiality" of a Panel member thereafter.
It is without question that Panel members can be called as witnesses at trial and testify as to the Panel opinion. "Either party shall have the right to call, at his cost, any member of the panel, except the judge, as a witness." Code § 8.01-581.8. In fact the Panel member is "required to appear and testify" if so called, and the party who calls him must pay the member's cost.
However, once the Panel has been selected, heard and considered the evidence, and rendered its opinion, the statutory basis for impartiality ceases. Clearly, at this point, the Panel members have formed an opinion about the evidence and are subject to being called by a party as de facto experts. The impartiality requirement will have already ensured that the Panel reached its decision fairly and objectively, but it is not intended to constrain that the members forever remain impartial. Thereafter permitting the retention of Panel members as experts does not contradict the statutory requirement of impartiality.
Code § 8.01-581.20, which sets forth witness qualifications to testify as an expert, does not disqualify a witness based upon Panel participation. Indeed, the Panel's work (other than testimony at trial upon their previously rendered opinion) must be done before the Panel member could be retained for any additional services. Nothing in the statutory scheme prohibits the additional step, should a party chose to do so, of retaining a Panel member as an expert witness to testify at trial on matters beyond the Panel opinion, once that opinion has been rendered. Any conflict or bias on the part of the Panel member by virtue of his post Panel work is addressed through the normal venue of cross-examination should the member be called to testify at trial.
The majority opinion writes a judicial amendment to the statutory definition of impartial health care provider by adding post-Panel prohibitions on service as a retained expert witness. While such a prohibition may be preferred public policy, it is not within the written statute. If such a prohibition is to be enacted, it is for the General Assembly to promulgate and not the judiciary. Courts cannot "add language to the statute the General Assembly has not seen fit to include." Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003) cert. denied, ___ U.S. ___, ___ S.Ct. ___ (2004). " or are they permitted to accomplish the same result by judicial interpretation." Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (internal quotation marks omitted).
I would hold, therefore, that the trial court did not err in permitting the former Panel members t
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