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Hinkley v. Koehler1/14/2005
that were made when she sought medical attention because of decreased fetal movements and contractions. Hinkley alleged in the motion for judgment that the defendant doctors were negligent by failing to provide proper medical treatment, primarily testing; and by failing to intervene surgically to save the life of the remaining twin after one had died in utero. Her expert witnesses testified that the defendant doctors breached the standard of care by failing to perform certain tests to determine, not just whether the twins were alive, but also whether they were in distress. They further opined that the standard of care required that a recommendation be made to the parents to proceed with delivery especially after one of the twins had died in utero.
However, within the one-year statutory time period, Dr. Greenhouse did not directly care for, provide treatment or management to, or make delivery decisions for any pregnancy. In other words, he had not, as a teacher and consultant in the field of obstetrics, provided direct patient care for any pregnancy since November 1998. Yet, this type of direct patient care is "the context of the actions by which the defendant alleged to have deviated from the standard of care." Wright, 267 Va. at 523, 593 S.E.2d at 314. Thus, we conclude that Dr. Greenhouse did not satisfy the active clinical practice requirement.
The defendants acknowledge on brief that "the only issue was whether the defendant physicians met the applicable standard of care in their evaluation, management, and treatment of . . . Hinkley's evolving calamity." They argue that, since this case is not about a specific procedure that the defendant doctors physically performed or the technique of delivering babies, Dr. Greenhouse was qualified under Code ยง 8.01-581.20(A) because he was actively engaged in the management of problems associated with pregnancies. The defendants argue that the only thing Dr. Greenhouse no longer did was personally to deliver babies. We agree that neither a specific procedure nor the physical process of delivering a baby is at issue here, but Dr. Greenhouse did not evaluate, manage, or treat problems in pregnancies in the context of direct patient care as did the defendant doctors. Nor are we persuaded otherwise by Dr. Greenhouse's testimony that he actually talked to two patients for whom he was acting as a consultant. Moreover, his testimony in that regard did not indicate whether that particular consultation occurred within the statutory time period.
As we have said on many occasions, ascertaining whether a proffered witness is qualified to testify as an expert is a determination lying within the sound discretion of the trial court. Wright, 267 Va. at 520, 593 S.E.2d at 312; Perdieu, 264 Va. at 418, 568 S.E.2d at 709; Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979); Swersky v. Higgins, 194 Va. 983, 985, 76 S.E.2d 200, 202 (1953). "A trial court will not be reversed for allowing a witness to testify as an expert unless it appears clearly that he was not qualified in the field in which he gives evidence." Swersky, 194 Va. at 985, 76 S.E.2d at 202. There is not, as suggested by the defendants, a lower standard of appellate review when a trial court excludes the testimony of a proffered expert witness as compared to when the court admits the testimony. " 'A trial court's exercise of its discretion in determining whether to admit or exclude evidence will not be overturned on appeal absent evidence that the trial court abused that discretion.' " Wright, 267 Va. at 517, 593 S.E.2d at 310 (emphasis added) (quoting May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690, 692 (2002)).
For the reasons stated, we conclude that the circuit court abus
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