Virginia Court Expands Who May Testify on Standard of Care Against Nursing Homes

As a result of a recent ruling by Circuit Court Judge W. Revell Lewis III of Northampton County, plaintiffs can now enjoy a broader swath of professionals who are able to testify in medical malpractice cases.   

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On September 28, 2018, in Terry v. American Healthcare X LLC (VLW 018-8-095), Judge Lewis ordered that a nursing home medical director who visited nursing facilities almost daily, met with nursing staff and supervisors, and reviewed nursing practices, was allowed to testify as an expert witness against a nursing facility for a nursing error. While the medical director was also a doctor, he had never trained as a nurse nor performed the task that the nurse performed incorrectly.

Code of Virginia § 8.01-581.20 describes the qualifications of expert witnesses who may testify at trial about the standard of care in medical malpractice cases. The Code states that the expert witness must have (1) an “active clinical practice” in the (2) “defendant’s specialty or a related field of medicine” (3) within one year of the incident. Additionally, the expert must demonstrate knowledge of the standards in the community and knowledge of the kinds of conduct that are negligent.

Judge Lewis’ decision to allow a doctor to testify about what nurses do, expanded the definition of what “defendant’s specialty or a related field of medicine” means, creating a broader swath of professionals able to testify in cases involving nursing homes and other health care facilities.

Expanding the field of potential experts provides greater flexibility and strategic advantages for both parties, and could help to save costs.  Although Code of Virginia § 8.01-581.20 is limited to the health care field, and the Supreme Court of Virginia has not yet adopted Judge Lewis’s reasoning, the effects of Judge Lewis’s decision in the Terry v. American Healthcare X LLC case could have wide-ranging implications in claims against health care facilities.

If you have experienced negligence at the hands of any professional organization, call Allen and Allen for a free consultation.