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Hinkley v. Koehler1/14/2005
cal cases."
Based on this testimony, the circuit court concluded, over Hinkley's objection, that Dr. Greenhouse was qualified and accordingly admitted him as an expert in the field of obstetrics on both the standard of care and causation. The court reasoned that Dr. Greenhouse's consultative work on a regular basis with physicians who practice obstetrics on a daily basis qualified Dr. Greenhouse under the requirements of Code § 8.01-581.20(A). The court also viewed the provisions of that statute as requiring that "one with certain qualifications shall be considered an expert [but that the statute] doesn't say that these are the only qualifications that [a physician has] to have in order to testify as an expert." According to the court, "the statute doesn't say these are the only individuals" who qualify.
When the jury returned to the courtroom, Dr. Greenhouse testified similarly with regard to his 33 years of practice in the field of obstetrics and gynecology, and his teaching and consulting work in the field of obstetrics. He further stated that he has a full gynecology practice, seeing "patients from all categories gynecologically." He again admitted that he had not been the primary care physician for any pregnant mother or delivered a baby since November 1998.
In order to qualify as an expert on the standard of care in a medical malpractice action, a witness must satisfy the statutory criteria set forth in Code § 8.01-581.20(A). Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 419, 568 S.E.2d 703, 709 (2002); see also Sami v. Varn, 260 Va. 280, 283, 535 S.E.2d 172, 174 (2000) (" he qualification of a witness as an expert is governed by Code § 8.01-581.20"). In relevant part, that statute states:
A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant's specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
Code § 8.01-581.20(A). We previously characterized these requisites as the "knowledge requirement" and the "active clinical practice requirement." Wright v. Kaye, 267 Va. 510, 518, 593 S.E.2d 307, 311 (2004). Contrary to the circuit court's comments when ruling on the motion in limine, both of the requirements must be satisfied before an expert can testify as to the standard of care. Id.
In this case, the active clinical practice requirement is at issue, i.e., whether Dr. Greenhouse's teaching and consulting work within one year of the date of the alleged negligence forming the basis of the action constituted an "active clinical practice" within the intendment of Code § 8.01-581.20(A). " hether a proffered witness meets the active clinical practice requirement is . . . determined by reference to the relevant medical procedure." Id. at 522, 593 S.E.2d at 313. For example, in Wright, the relevant procedure was "laparoscopic surgery in the female pelvic area near the bladder involving a surgical stapler." Id. We found that the plaintiff's experts in that case had an active clinical practice with regard to the procedure at issue within the one-year statutory window. Id. However, the crux of that case, with regard to the active clinical practice requirement, focused on and rejected the defendant doctor's argument that an active clinical practice in the defendant's specialty meant that "an expert witness must have performed the same medical procedure with the same pathology in all respects as gave rise to the alleged ac
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