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Hinkley v. Koehler1/14/2005
ed its discretion in this case by permitting Dr. Greenhouse to testify as to the standard of care. In the context of the alleged negligence at issue, Dr. Greenhouse's work as a teacher and consultant did not satisfy the active clinical practice requirement set forth in Code 8.01-581.20(A). One of the purposes of that requirement is to prevent testimony by individuals who do not provide healthcare services in the same context in which it is alleged that a defendant deviated from the standard of care. Today's decision is in accord with that purpose.
Finally, we reject the defendants' argument that any error by the circuit court in allowing Dr. Greenhouse to testify was harmless. The defendants assert that Dr. Greenhouse testified about not only the standard of care but also causation, that Hinkley has not articulated any reason why Dr. Greenhouse was not qualified to testify as to the issue of causation, and that the "jury's verdict was far more likely decided on the issue" of causation. This last assertion is purely speculative; neither the defendants nor this Court can ascertain on what issue the jury returned its verdict in favor of the defendants. See Schlimmer v. Poverty Hunt Club, 268 Va. 74, 80, 597 S.E.2d 43, 46 (2004) (finding error was not harmless because we could not determine whether the jury returned a verdict for the defendant due to lack of primary negligence or due to plaintiff's contributory negligence).
Furthermore, the error in allowing Dr. Greenhouse to testify with regard to the standard of care "is presumed to be prejudicial unless it plainly appears that it could not have affected the result." Spence v. Miller, 197 Va. 477, 482, 90 S.E.2d 131, 135 (1955); accord Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995). In this case, it does not plainly appear from the record that the error could not have affected the jury's verdict. This is so despite the fact that the defendants had another expert witness, Wade A. Neiman, M.D., who testified as to both standard of care and proximate causation.
However, Dr. Greenhouse's testimony was in many respects more detailed than Dr. Neiman's testimony. The jury also could have accorded more weight to Dr. Greenhouse's testimony overall because of his 33 years of experience in the practice of medicine. See Black v. Bladergroen, 258 Va. 438, 446, 521 S.E.2d 168, 172 (1999) (considering qualifications of expert witness whose testimony was excluded in deciding issue of harmless error).
For these reasons, we will reverse the judgment of the circuit court and remand this case for a new trial.
Reversed and remanded.
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