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Hinkley v. Koehler1/14/2005
Elizabeth K. Hinkley filed this medical malpractice action, naming as defendants Anthony J. Koehler, M.D.; Sanam Emami Campbell, M.D.; David J. Roberts, M.D. (collectively, "the defendant doctors"); and their employer Southwest Virginia Physicians for Women, Inc., d/b/a Obstetrics & Gynecology of Radford (collectively, "the defendants"). A jury returned a verdict for the defendants.
We awarded Hinkley this appeal on the question whether the circuit court erred in concluding that one of the defendants' witnesses was qualified under Code § 8.01-581.20(A) to give expert testimony with regard to the standard of care. Because the expert witness had not had an active clinical practice in the defendant doctors' specialty or a related field within one year of the alleged negligence, we will reverse the judgment of the circuit court.
During her 28th week of a twin pregnancy, Hinkley sought medical attention due to decreased fetal movements and contractions. Over the course of two days, August 23 and 24, 2001, the defendant doctors attended to Hinkley and her twin fetuses, primarily by monitoring the twin fetuses' heart rates, conducting ultrasound examinations, and reducing Hinkley's contractions. On the second day, an ultrasound examination revealed that one of the twins had died in utero. The ultrasound test, along with a Doppler study, indicated that the other twin had "no major anomalies." However, later that day, the other twin died in utero, as confirmed by a second ultrasound examination. Hinkley then underwent a cesarean section to deliver the dead fetuses. The preliminary post-operative diagnosis regarding the cause of death was twin-to-twin transfusion syndrome.
Prior to trial, Hinkley filed a motion in limine to exclude testimony from Charles Greenhouse, M.D., one of the expert witnesses designated by the defendant doctors to testify with regard to the standard of care. Hinkley argued that Dr. Greenhouse did not meet the requirements of Code § 8.01-581.20(A) because he had not practiced in the field of obstetrics within one year of the date of the alleged negligence and had not delivered a baby since 1998. The circuit court took the motion under advisement until Dr. Greenhouse testified at trial.
During the trial, the circuit court heard testimony, outside the presence of the jury, from Dr. Greenhouse about his qualifications. Dr. Greenhouse testified that he had practiced medicine in the field of obstetrics and gynecology for 33 years but that he "gave up delivering, hands-on delivering obstetrics November of 1998." Since 1998, Dr. Greenhouse had "been extremely active in teaching . . . residents . . . , medical students and interns obstetrics and gynecology" as an associate clinical professor at George Washington University Medical School, and in performing consultative work with those individuals, as well as with the partners in his six-person medical practice. Dr. Greenhouse consulted primarily with regard to high-risk pregnancy cases and associated problems. Although Dr. Greenhouse testified that he had consulted on two patients "which actually went in and spoke to," he acknowledged that he was not the "primary care physician for those patients" and had not been for any obstetrical patient since November 1998. Dr. Greenhouse explained that a primary care physician means "the doctor who is responsible for that patient." In Dr. Greenhouse's words, "I don't deliver the patient; however, I am very active in the consulting part." Finally, Dr. Greenhouse testified that he recently had been asked to be on the editorial board review of a journal for obstetrics and gynecology and to do "peer review work for the Medical Gynecological Society in obstetri
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