Virginia Supreme Court reverses dismissal of wrongful death suit against pediatrics group

This material originally appeared in the January 23, 2009, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (www.healthlawyers.org).

The Virginia Supreme Court reversed January 16 a lower court's ruling, finding that a wrongful death plaintiff's medical expert was qualified to testify under the relevant statute. Therefore, the high court held, the lower court erred in excluding the testimony.

Plaintiff Inez Jackson was the administratrix of the estate of her infant son, James M. Jackson. According to Jackson, Faiqa Aftab Qureshi, M.D., and her employer, Children’s Specialty Group, PLLC (collectively, defendants), negligently discharged her son and failed to admit him to inpatient hospital care when the infant presented at an emergency room with signs of respiratory distress and/or pertussis.

In her wrongful death action against defendants, Jackson identified Dr. John F. Modlin, a physician licensed in New Hampshire and board certified in pediatrics and pediatric infectious diseases, as her expert witness.

The circuit court granted defendants' motion to exclude Modlin's testimony and plaintiff appealed.

The high court noted at the outset that the qualification of a witness as an expert on the standard of care is governed by Va. Code § 8.01-581.20.

Under the statute, "a physician is presumed to know the statewide standard of care in the physician’s specialty or field of medicine either if the physician is licensed to practice in Virginia or '[i]f the physician is licensed out-of-state, but meets the educational and examination requirements of the statute,'" the high court explained.

Here, although he was licensed out of state, Modlin’s credentials satisfied the educational and examination requirements for licensure in the Commonwealth, the high court observed.

The high court next turned to the statutory requirement that a "witness must have expert knowledge on the standard of care in the defendant’s specialty and an ‘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.'"

Pursuant to this requirement, the high court explained, Jackson must demonstrate that Modlin’s "area of qualification and certification" in pediatrics and pediatric infectious diseases "had certain overlapping medical practices and similar standards of care with" Qureshi’s "area of qualification and certification" in pediatric emergency medicine.

Holding that this requirement could be shown by evidence that the standard of care, as it relates to the alleged negligent act or treatment, is the same for the proffered expert’s specialty as it is for the defendant doctor’s specialty, the high court found that Modlin satisfied this requirement.

In support of its finding, the high court pointed to Modlin's testimony that, "all pediatricians who care for acutely ill children, regardless of whether they are [emergency department] physicians or pediatric [infectious disease] physicians or general pediatricians should appreciate how pertussis can present in an infant."

The high court also found Modin satisfied the "active clinical practice" requirement. According to the high court, Modlin practiced a "related field of medicine" as set out in the statute.

In addition, the high court found that "the record is clear that Dr. Modlin directly treated patients who presented with respiratory distress or pertussis within one year of the date of the alleged omission in this case."

Accordingly, the high court vacated the lower court's holding and remanded for further proceedings.

Jackson v. Qureshi, No. 080502 (Va. Jan. 16, 2009).