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No Expert Certified for Med-Mal Suit

A Virginia inmate who alleges he suffered severe mental anguish as a result of his participation in a medical study at the University of Virginia’s Center for Addiction Research and Education has not complied with the Virginia statutory requirement that he certify that an expert witness has opined that defendant deviated from the standard of care, and the Charlottesville U.S. District Court grants summary judgment for defendant physician.

The court interprets plaintiff’s pro se complaint as alleging state law claims for medical malpractice and technical battery. Earlier the court dismissed plaintiff’s claims, including his med-mal claim for failure to provide an expert witness opinion stating defendants had deviated from the applicable standard of care, as required by Va. Code § 8.01-20.1. On appeal, the 4th Circuit affirmed this court’s dismissal of plaintiff’s technical battery claim, but vacated dismissal of the med-mal claim because plaintiff had neither requested the service of process nor requested a defendant to accept service of process, a prerequisite to the expert witness requirement.

Plaintiff filed an amended complaint, naming an additional defendant, Dr. Ait-Daoud, and adding a claim for breach of contract based on “a written contract to participate in a drug research experiment.” The court dismissed the breach of contract claim under its mandatory screening duty, and dismissed several named defendants under the doctrine of sovereign immunity, and dismissed all unnamed defendants because plaintiff failed to accomplish service or provide the court with the necessary contact information within the extended time period allowed. However, the court recognized that the sole remaining defendant, Dr. Ait-Daoud, had not yet asserted a viable sovereign immunity defense to the med-mal claims and it ordered the U.S. Marshal to serve process on Dr. Ait-Daoud.

Defendant has moved for summary judgment, which the court grants on the ground that plaintiff has not complied with the expert witness certification requirement.

This court has already determined – and the 4th Circuit has agreed – that it is not within the common knowledge and experience for a jury to determine whether defendant satisfied the standard of care in the various situations alleged by plaintiff. Therefore, this case fails to qualify as one of the rare instances in which expert certification is not required. The court finds there is no genuine dispute that plaintiff failed to obtain the required certification, and defendant’s motion for summary judgment must be granted.

Keitz v. Unnamed Sponsors of Cocaine Research Study (Conrad) No. 3:11cv54, Oct. 31, 2013; USDC at Charlottesville, Va. VLW 013-3-568, 5 pp.

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